ORDER :- These are two connected revisions and they have arisen from one suit. A few facts may be noticed. The plaintiff claimed to be the owner of the property in suit. His assertion is that he purchased the property in the name of his wife, Smt. Shanti Devi, defendant no. 2. After the purchase, certain alterations took place in the property and they were also financed by the plaintiff from his own money. Throughout the plaintiff remained in possession of the property and realised rent from the tenants who occupied certain portions of the property. Defendant no. 1 is the wife of his younger son, Bansi Lal. A gift deed was obtained fictitiously by the defendant no. 1 in her favour from the defendant no. 2 on 27th December, 1969. The plaintiff was not aware of the said gift deed till some time in 1975. The defendant no. 1 gave a notice through her counsel to the tenants asking them to pay rent to her. On these allegations the plaintiff claimed a declaration that the gift deed by the defendant no. 2 in favour of the defendant no. 1 in respect of the property in suit was illegal and void and that it was not binding on him. A permanent injunction was also claimed against the defendants seeking to restrain them from interfering with the plaintiffs possession over the suit property. An application for a temporary injunction was made by the plaintiff seeking to restrain the defendants from interfering with the plaintiffs possession over the property and from realising rent thereof. The defendant no. 1, on the other hand, moved an application seeking a temporary injunction against the plaintiff restraining the latter from realising the rent from the tenants of the disputed property. Both the applications were disposed of by a common order passed by the trial court. The application of the defendant no. 1 for a temporary injunction was rejected and that of the plaintiff for such an order was allowed. The defendant no. 1, Smt. Nirmalala Kanta, went up in two appeals to the lower appellate court against the said grant of temporary injunction by the trial court in favour of the plaintiff and against the refusal to grant such injunction in favour of the defendant and against the plaintiff, but she did not succeed before the appellate court also and both the appeals were dismissed and the trial courts order granting temporary injunction in favour of the plaintiff and refusing to grant such an injunction against the plaintiff was affirmed. Civil Revision No. 1386 of 1976 has been filed by Smt. Nirmala Kanta, defendant no. 1, against the lower appellate courts order confirming the trial courts grant of temporary injunction. Civil Revision No. 1497 of 1976 has been filed by the said defendant against the lower appellate courts order confirming the trial courts order refusing to grant a temporary injunction in favour of the defendant no. 1 and against the plaintiff.

2. I have heard the learned counsel for the applicant in support of the revision. Counsels main contentions are two-fold. Reliance has been placed on Gangadara Ayyar v. Subramania, (AIR 1949 F. C. 88) and Kanakarathanammal v. Loganatha, (AIR 1965 SC 271) for the proposition that the burden to prove benami is on the party who asserts a transaction to be a benami one. Therefore, in the present case the burden was on the plaintiff to prove that the property allegedly purchased in the name of the wife had really been purchased by the plaintiff and the transaction was a benami one. This proposition is undoubtedly correct but it does not lead to the inference that in interlocutory proceedings before the trial of the suit it is not open to the court to reach a prima facie conclusion that on the facts placed before it at that stage the plaintiffs contention is prima facie established. Obviously, no final verdict can be given at that stage and that can be done only after the parties have gone to trial and have placed their full evidence in the possession of the court. But that is not to say th

Click Here to Read the rest of this document