Successful rebuttal of the statutory presumption under the Benami Transactions (Prohibition) Act, 1988, allowed the appellant to claim ownership of the property purchased in his wife's name.

JUDGMENT

Amol Rattan Singh, J. - Vide this regular 2nd appeal, the plaintiff in a suit has challenged the judgment of the learned first appellate court (District Judge, Gurgaon), setting aside the decree issued in his favour by the trial Court, the suit instituted by him being one seeking a declaration of his ownership over the suit land, with a relief of mandatory injunction also sought, as also one of permanent injunction, the mandatory injunction being that his name be inserted as the owner and real purchaser of the suit property bearing plot no.1081, Sector-46, Urban Estate, Gurgaon, "by making the entire sale consideration thereof including all the installments and enhanced compensation amount"; and that the name of the first defendant (respondent no.2 herein), i.e. his wife, be considered to be only benami. He further sought that all the documents of the plot in question be handed over to him from the record of the first respondent herein, i.e. the Haryana Urban Development Authority (defendant no.2 in the suit), showing the plot to be in his (the plaintiffs') ownership.

The prohibitory injunction that the appellant had sought was against his wife, i.e. respondent no.2, restraining her from disposing of the property in any manner.

2. As per the case of the appellant-plaintiff (hereinafter to be referred to as the appellant), respondent no.2 was his legally wedded wife. The original owner/allottee of the aforesaid plot, measuring 286 sq. metres, was one Romesh Kumar, who had transferred it in the name of one Parmod Kumar, from whom the appellant had purchased it in the year 1996, by making 'full and final payment', with a registered power of attorney also issued by the aforesaid Parmod Kumar on 03.09.1996.

As per the appellant, the entire consideration was paid out of his own pocket, in support of which bank account details had also been given by him in the plaint, but with the property transferred in the name of his wife, i.e. respondent no.2, vide a re-allotment letter issued by respondent no.1 on 08.12.1997, though the wife had never actually paid 'even a single rupee' towards the purchase of the plot.

As per the appellant, she, being a housewife, had no source of income prior to her marriage or thereafter, and therefore, the plot was actually a benami transaction in her name, with her always treating him (the appellant) to be the full-fledged owner thereof.

3. In the month of June 2004, when the appellant decided to construct a house over the plot, he approached the first respondent (HUDA) to enquire about any dues pending, upon which he was told that Rs. 15,000/- still remained to be cleared as the final amount due against the plot.

He therefore made a request to respondent no.2 to sign the requisite affidavits and papers but, as contended, she avoided doing so and kept delaying the matter and in fact, her attitude thereafter became arrogant and disrespectful towards him, and eventually she refused to sign the papers or transfer the plot in his favour.

As per the appellant, she even took away the original documents from the almirah and 'challenged the title of the plaintiff', allegedly out of her greed and lust for the property.

Hence, the suit was filed, essentially against the contended 'usurpation' of the plot by the appellants' wife, she not being the real purchaser thereof (according to the appellant).

4. Upon being put to notice, she however, i.e. respondent no.2 herein (defendant no.1), did not appear before the trial Court and was consequently proceeded against ex parte.

5. Respondent no.1 (defendant no.2), i.e. the Haryana Urban Development Authority, appeared and filed a written statement, taking firstly the usual preliminary objections of non-maintainability of the suit, mis-joinder and non-joinder of parties and locus of the appellant etc.

On merits, the said respondent refuted the claim of the appella