AKHILESH KHANDELWAL Vs. SAVITA KHANDELWAL

JUDGEMENT

(1.) No one appears on behalf of the Respondent despite service by publication. The matter has therefore proceeded ex-parte against the Respondent.

(2.) The present appeal arises from order dated 5.12.2014 dismissing Civil Suit No. 3-A/2014 passed by the District Judge, Dhamtari.

(3.) Learned Counsel for the Appellant submits that the Respondent is his estranged wife. She did not appear before the Court below also despite valid service of notice. The Suit was therefore also heard ex-parte. The Trial Judge completely failed to appreciate from the evidence on record that the Appellant was the exclusive title holder of the subject property purchased benami in the name of his wife and that it was not for her exclusive possession. The Appellant remained in constructive possession of the suit property even if he had allowed his wife to stay in the house pending divorce proceedings. The property had been purchased by the Appellant from his own funds, taken a loan for the purpose and was repaying the installments. Merely because the name of his wife was mentioned in the revenue receipt did not make her the exclusive owner of the property and neither could she be said to be in exclusive possession to the exclusion of the Appellant. Sufficient evidence had been led under Section 3(2)(a) of the Benami Transactions (Prohibition) Act, 1988 (hereinafter referred to as 'the Act') that the property had been purchased for the benefit of the family and not for the exclusive benefit of the Respondent. There was no occasion for the Appellant to ask for possession of his own property merely because his estranged wife may have been living in it with their two sons one of whom was also ousted by her at a later stage. The suit property was not in the possession of a third party stranger requiring recovery of possession by the Appellant. There was thus no occasion for him to seek a decree of possession. In the alternative, it was argued that even if he filed an amendment application on 3.12.2014 seeking possession of the property also apart from the original relief for declaration of title and and permanent injunction restraining the Respondent from alienating the suit property or creating any third party interest, it did not change the nature of the suit so as to warrant rejection of the amendment application and disposal of the suit in haste two days later. The amendment ought to have been allowed as it was only a consequential relief only with no other change in the fact circumstances.