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2011 Supreme(All) 3370
ALLAHABAD HIGH COURT
Dilip Gupta, J.
Fakhrey Aalam Khan and Others -Appellant
Versus
Salma Waheed and Others -Respondent
Second Appeal No. 476 of 1994
Decided On : 19-12-2011
The burden of proving a benami transaction lies on the party alleging it, and adverse possession requires hostile possession and denial of the true owner's title.
Headnote:
Benami Transaction - Property Dispute - U.P. Act No.13 of 1972 - Section 14 - Adverse Possession - Limitation
Fact of the Case:
The suit was filed by the plaintiff for possession of a disputed house after termination of the defendants' license and for damages for use and occupation. The defendants contended that the property was owned by the grandfather and they were residing as owners for the last 30 years.
Finding of the Court:
The Trial Court and the First Appellate Court found in favor of the plaintiff, holding that the defendants were licensees, the suit was not barred by limitation, and the claim of adverse possession by the defendants could not be established.
Issues: Ownership of the disputed house, status of the defendants as licensees, validity of the termination of license, adverse possession, and limitation.
Ratio Decidendi: The Court emphasized the burden of proving a benami transaction lies on the party alleging it, and the intention of the parties is crucial. The Court also clarified the concept of adverse possession, requiring hostile possession and denial of the true owner's title.
Final Decision: The Second Appeal was dismissed, upholding the findings of the lower courts.
The defendants have filed this Second Appeal for setting aside the judgment and decree dated 12th January, 1987 passed by the learned IXth Additional Civil Judge by which the suit was decreed as also the judgment and decree dated 11th April, 1994 passed by the learned IInd Additional District Judge, Meerut by which the Civil Appeal filed by the defendants was dismissed.
Original Suit No.369 of 1977 was filed on 9th July, 1977 by Abdul Wahid Khan (since deceased) in the Court of Munsif with Fakhrey Aalam Khan, Sultan Alam Khan and Gayas Alam Khan (Appellants in this appeal) as defendants for possession of the disputed house after vacation by the defendants and for damages for use and occupation at the rate of Rs.20/- per month. It was alleged that the plaintiff was the owner of the house and the licence given to the defendants in 1966 to reside in the first floor of the house had been terminated on 2nd May, 1977 for the reason that they had not only damaged the property but were also harassing the plaintiff.
To appreciate the controversy it will be useful to give the pedigree which is as follows:-
Abdul Lateef Khan (died on 04.06.1944)
Maqsoodan (1st wife) Majid-ul Nisa (second wife-marriage in 1912 but died
(died in 1910) on 02.03.1948)- purchased house in dispute vide two sale deeds dated 23.5.1942 and 25.7.1942
Alam Gir Khan (son-died on 25.01.1963)
Mobeen Fatma (wife of Alam Gir Khan and
real sister of Niaz Fatma
wife of Abdul Wahid Khan died in 1960)
1. Fakhrey Alam 1. Abdul Waheed Khan-Plaintiff
Defendants wife-Smt. Sultana wife-Niaz Fatma (real sister of Mobeen Begum 1/1 Fatma)
2. Sultan Alam Khan 2. Abdul Hameed Khan
3. Ghyas Alam Khan 3. Abdul Rasheed Khan (sons of Alim Gir Khan) 4. Saeed Ahmad Khan
5. Naeem Ahmad Khan ( All sons)
6. Iqbal Fatma
7. Husn Jahan
died on 27.06.2002 8. Habeeb Jahan (All daughters)
[ 2 to 8 vide oral gift dated 14.06.1954
Ruksana 1/2 Shahnawaz 1/3 gifted their Shares to their brother Abdul
(daughter) (son) Waheed Khan-Plaintiff]
Original Plaintiff-Abdul Wahid Khan died on 31.8.1978 during pendency of Original suit 369 of 1977
1. Smt. Niaz Fatma 2. Smt. Najma Khan 3.Smt. Salma Khan 4. Waheedur Rehman
(died on 17.07.1988) (daughter) (daughter) (son)
during pendency of
First Appeal
It needs to be mentioned that the plaintiff Abdul Wahid Khan filed Original Suit No. 369 of 1997 in the Court of Munsif, but subsequently as the valuation was raised, the plaint was directed to be returned for being presented before the appropriate Court by the order dated 6th February, 1979. However, Abdul Wahid Khan died on 31st August, 1978 during the pendency of the suit before the Munsif and he was substituted by his widow-Niaz Fatma (plaintiff No.1), two daughters and one son (plaintiff Nos. 2 to 4). The plaint was then presented before the First Civil Judge and was registered as Original Suit No. 190 of 1979.
The plaint was filed with the allegations that the plaintiff-Abdul Wahid Khan was the owner of the house detailed in the plaint and the defendants were the licensees of the first floor of the house since 1966. As the defendants damaged the property and were harassing the plaintiff, the license of the defendants was terminated on 2nd May, 1977 and they were asked to vacate the premises, but as they did not vacate it, notice dated 12th May, 1977 was served upon them asking them to vacate the premises. Instead of vacating the premises, the defendants sent a reply claiming to be the owners of the property. Relief for possession of the house was, therefore, claimed.
The defendants filed a written statement contending that Abdul Latif Khan, grand-father of the defendants and plaintiff nos.2 to 4 was the owner of the house in dispute and the defendants were not the licensees. It was also alleged that the defendants were residing in the house as owners for the last 30 years and that the brothers and sisters of the plaintiff Abdul Wahid Khan had migrated to Pakistan.
An Amendment Application was filed by the defendants on 14t
