AVDESH KUMAR Vs. HARI MOHAN PRASAD

JUDGEMENT

(1.) THE plaintiff had instituted a suit for declaration that he is real owner in possession of the land, measuring 1 Kanal, comprised in Khata No. 167 min, Khatauni No. 288 min, Khasra No. 1685, out of the total land measuring 1801 -60 centairs, situated in Malahat Nagar, District Una. It is prayed that the sale deed executed on 11.4.1984, in favour of the defendant, qua half share of the suit land, is, as Benamidar and the same is illegal, void, ineffective against the right of the plaintiff. The consequential relief, as prayed for by the plaintiff, was that the defendant be restrained from interfering in the suit land or taking forcible possession of any portion of the constructed house thereon. The plaintiff has set up the case that the defendant, is, his real younger brother and has been serving in the H.P. State Electricity Board, since 1968. As a result of natural love and affection towards the defendant, the plaintiff brought his younger brother to Una from his native place, in, the State of Bihar. The defendant completed his B.Sc. in the year 1982 and the plaintiff admitted the defendant in the course of B.Ed. in Gandhi Memorial College, Srinagar (J & K). It is averred that the plaintiff has borne all the expenses incurred on the education of the defendant at Srinagar. The plaintiff purchased the suit land on 11.4.1984 and the entire consideration was paid by him. It is on the basis of love and affection, he got the name of the defendant entered in the sale deed, as, owner of half share in the suit land. The defendant, being unemployed, was financially disempowered from paying the sale consideration. The defendant joined the Government service as B.Sc. trained teacher in the year 1986 at Jispa in Lahaul Spiti, H.P. On the purchase of the suit property, the plaintiff raised a building thereupon, in the year 1986 and the investment was exclusively Made by him. The defendant was transferred from Lahaul Spiti to Una on 31.7.1990 and started residing in the rented accommodation, in a nearby place. It is alleged that from the last one week before the filing of the suit, the defendant commenced advancing threats to the plaintiff to take forcible possession of the suit property. The cause of action is stated to have arisen then in favour of the plaintiff. Hence, the suit for declaration and injunction..

(2.) THE suit of the plaintiff was resisted by the defendant. The defendant admitted that the plaintiff is his brother and both had love and affection for each other. It is also admitted that he had completed B.Sc. in the year 1982 from Bihar and then got admission in B.Ed. Course. Defendant denied that the plaintiff had spent money on his education, rather, it was contended by the defendant that he, from his evocation as a tutor, reared an income for himself. The suit land was purchased by both the brothers in equal share and accordingly the sale consideration was paid by him also. The sale consideration was borne by a common friend of both the parties, namely, Shri Kartar Singh Saini, who helped in the purchase of the suit land and also paid Rs. 10,000/ - as sale consideration. The amount, aforesaid, lent, by Shri Kartar Singh Saini for purchasing the suit property, at the time of the execution of the sale deed, has been re -paid to Shri Kartar Singh Saini. It is denied that the house was exclusively constructed by the plaintiff from his own income. It is emphasized that the defendant had also contributed towards the construction expenses. Relations between both the parties have been contended to have become strained when the plaintiff started mal -treating his brother. Ultimately the plaintiff has thrown away the luggage and other household articles of the defendant from the house qua which a criminal case is still pending in the Court. Moreover, the defendant has also taken preliminary objections of estoppel, limitation, locus -standi and the suit is barred under Section 4(2)(a) of the Benami Transactions (Prohibition) Act, 1988.

(3.) ON the pleadings of the parties, the learned trial Court struck following issues inter -se the parties in contest: - -