JudgmentJudgment 1. This appeal is directed against the judgment and decree of Additional District Judge, Chandigarh dated 14-12-1995 whereby he had dismissed the appeal of Rakesh Kumar Duggal son of Nihal Chand Duggal and his wife Geeta Rani Duggal (appellants herein) against the judgment and decree dated 9-6-1989 of Sub Judge 1st Class, Chandigarh whereby he had decreed the suit of Baldev Kumar Duggal (respondent herein) for mandatory injunction directing Rakesh Kumar Duggal and his wife to vacate possession of one room and kitchen on the first floor (room on the left side and kitchen on the right side) and one room at Barsati of House No. 1157, Sector 21-B, Chandigarh and further for recovery of Rs. 1085.00 i.e. at the rate of Rs. 15.00 per day as damages for the unauthorised use and occupation of these premises. Facts : 2. For appreciating better the facts of the case, following pedigree-table is set out: 3. Besides, Nihal Chand Duggal had 7 daughters namely Asha Duggal, Parveen Duggal, Sukhvarsha Duggal etc. Smt. Raj Duggal is the widow of Narinder Kumar Duggal, Baldev Kumar Duggal filed suit for mandatory injunction against Rakesh Kumar Duggal and his wife Geeta Rani Duggal, directing them to vacate and hand over the vacant possession of one room and kitchen on the first floor (room on the left side and kitchen on the right side) and one room at Barsati of House No. 1157, Sector 21-B, Chandigarh to him and for the recovery of Rs. 1190.00 on account of unauthorised use and occupation of these premises by them after the notice period. As per Baldev Kumar Duggal he is absolute owner of House No. 1157, Sector 21-B, Chandigarh, House No. 1157, bearing Plot No. 2-B Sector 21-B, Chandigarh was constructed by him out of his own funds, Conveyance deed was also issued to him by the Estate Officer, Chandigarh. 4. Defendant Rakesh Kumar Duggal is his brother, defendant No. 2 Geeta Rani Duggal is his wife. They are occupying one room and kitchen in the first floor (room on the left side and kitchen on the right side) and one room at the Barsati of House No. 1157, Sector 21-B, Chandigarh as his licensees, with the passage of time, plaintiffs children have grown up and the accomodation in his occupation is insufficient. He requires these premises for his own use and occupation. He requires these premises for his own use and occupation. Smt. Geeta Rani Duggal-defendant has already purchased house bearing No. 2070, Sector 45-C, Chandigarh on lease hold basis in the year, 1984. Instead of shifting to that house, they have rented it out. Firstly in the month of April, 1984 he requested them to vacate and hand-over the possession of these premises to him. They sought time saying that defendant Geeta Rani Duggal had applied for MIG House and she was expecting its allotment in the near future. He allowed them to keep occupying these premises till the allotment of MIG house to them. They did not vacate and hand-over the possession of these premises to him even after the allotment of MIG house to them, when the requests made by him time and again to them for vacating these premises failed, he served them with notice on 21-12-1985 revoking license in their favour. They were called upon to vacate these premises within 15 days of the receipt of that notice. Notice period expired on 8-1-1986. After 8-1-1986, defendants use and occupation of these premises became unauthorised. They are liable to pay Rs. 35.00 per day as damages for the unauthorised use and occupation of these premises for the period 8-1-1986 to 7-2-1986 i.e. till the filing of the suit and they are liable to pay damages at the said rate till the demised premises is vacated by them. 5. It was also prayed that the decree for payment of future damages for the unauthorised use and occupation of these premises by the defendants be also passed. 6. Defendants contested the suit of the plaintiff. It was denied that the plaintiff was the exclusive and absolute owner of House No. 1157, Sector 21-B, Chandigarh or the same was constructed by him. In fact, plot was purchased by Nihal Chand Duggal on 14-1-1953. Possession was taken by him from the Estate Office on 8-12-1954. The entire construction on this plot was raised by late Nihal Chand. Every penny of the instalments of loan was also paid by Nihal Chand during his lifetime. The last instalment was deposited on 26-2-1975. Sh. In fact, plot was purchased by Nihal Chand Duggal on 14-1-1953. Possession was taken by him from the Estate Office on 8-12-1954. The entire construction on this plot was raised by late Nihal Chand. Every penny of the instalments of loan was also paid by Nihal Chand during his lifetime. The last instalment was deposited on 26-2-1975. Sh. Nihal Chand died on 12-12-1975, it was urged that the alleged transfer in the name of the plaintiff was a mere family settlement for the purpose of obtaining loan from the Estate Office because it was not feasible to obtain another loan from the Estate Office because Nihal Chand was owning a big SCF in S. 22 and he had obtained a loan for constructing it. 7. This device was invented as second loan was not feasible and practical. Defendant Rakesh Kumar Duggal was minor at that time, Plaintiff started his career as T-mate on meagre salary of Rs. 40.00 per month on 5-7-1956. As such, he was not in a capacity either to raise construction or to repay loan. In fact the entire funds for the construction and repayment of the loan were provided by Nihal Chand and the plaintiff in turn deposited the amount in the treasury. Construction was raised up to three storey level. Construction up to three storey level could not be raised with a meagre loan of Rs. 17,000.00. It is an Aclass construction. At that time, approximately total expenditure incurred by Nihal Chand was more than Rs. 60,000.00. At the time of raising construction on plot No. 2-E Sector 21-B, Chandigarh, plaintiff was not having any source of income except meagre salary of Rs. 40.00 per month. He was dependent on Nihal Chand for his expenses. There could thus be no question of any funds being contributed by the plaintiff towards the construction of the house. It was denied that they are occupying these premises as licensees. Rakesh Kumar Duggal is co-owner of the said house along with other heirs of Nihal Chand namely his wife Gian Devi, wife and children of his pre-deceased son Narinder Kumar Duggal and daughter. It was urged that he (Rakesh Kumar Duggal) alongwith his mother and sister are staying in these premises right from the time of its construction. We got married in the year, 1969 and have been staying in these premises since then as co-owner. It was urged that he (Rakesh Kumar Duggal) alongwith his mother and sister are staying in these premises right from the time of its construction. We got married in the year, 1969 and have been staying in these premises since then as co-owner. Plaintiff along with his family was living in house No. 2259, Sector 20-C Chandigarh - a Government house and he shifted in this house on 31-12-1979 i.e. after the death of Nihal Chand and has been occupying only three rooms on the first floor since 31-12-1979. The entire other portion is in possession of Rakesh Kumar Duggal, his wife Geeta Rani Duggal, mother and sister Ms. Om Kumari. It was urged that the plaintiff has got only 1/5th share in the entire house. He is in occupation of more accommodation than his entitlement. Plaintiff and his wife own one plot at Panchkula. It was admitted that Smt. Geeta Rani Duggal-defendant No. 2 owns House No. 2070, Sector 45, Chandigarh but it was given on rent by her. Question of shifting in House No. 2070 Sector 45-C, Chandigarh could not arise because Rakesh Kumar Duggal along- with his family, mother and sister is living in house No. 1157, Sector 21-8, Chandigarh as co-owner. Transfer in favour of the plaintiff by their father Nihal Chand was only benami as Nihal Chand could not secure two loans at the same time and for the purpose of obtaining loan a device was made and the transfer was made in favour of the plaintiff which was only a paper transaction. Loan of Rs. 17000.00 was obtained on 26-2-1960 and repayment of the loan was to be made in half yearly instalments of Rs. 812.26 p, each and the plaintiff had no capacity to repay the instalments. For a period of more than 24 years, plaintiff never assertted his title. Transfer standing in the name of the plaintiff alone was only a formality but it was otherwise for the benefit of the entire family i.e. two brothers of the plaintiff, mother and un-married sister. 8. In replication, plaintiff reiterated that he is exclusive and absolute owner of House No. 1157, Sector 21-B, Chandigarh. It was constructed by him with his own funds. It was admitted that this plot was purchased by Nihal Chand Duggal and he purchased this plot from Nihal Chand Duggal for a sum of Rs. 2436.00. 8. In replication, plaintiff reiterated that he is exclusive and absolute owner of House No. 1157, Sector 21-B, Chandigarh. It was constructed by him with his own funds. It was admitted that this plot was purchased by Nihal Chand Duggal and he purchased this plot from Nihal Chand Duggal for a sum of Rs. 2436.00. Loan was taken by the plaintiff from the Estate Office, which was repaid by the plaintiff in instalments. Last instalment was deposited by him on 25-2-1975 and the last payment was made by the plaintiff on 12-7-1976. No objection certificate was issued to him by the Estate Officer. Loan documents i.e., security bond and conveyance deed were returned by the Estate Officer to the plaintiff. It was denied that the plot purchased by the plaintiff from his father was a mere family settlement for the purpose of obtaining loan from the Estate Officer. Loan was taken by the plaintiff in the month of February, 1960 for the construction of the said plot. Loan was taken by the plaintiff as he was absolute owner of the said plot. It was denied that he was minor at that time. It was denied that he was earning a sum of Rs. 40.00 per month only. He was drawing a salary of Rs. 85.00 per month at the relevant time. Besides, he had inducted two tenants namely one Gopi Chand and another an employee of the Brook Bond Tea and was receiving rent of Rs. 225.00 from time. No money was provided by Nihal Chand to him for raising construction or for repayment of loan amount. It was an ordinary construction raised by the plaintiff. Only Rs. 34,000.00 were spent inclusive of the price of the plot. Plaintiff had many sources for arranging loan for the construction and the purchase of the plot. Besides taking loan of Rs. 17,000.00 from the Estate Office, he took a loan of Rs. 9000.00 from Piara Lal Kaushal. He also raised money from other sources. It was denied that he was dependent upon his father at the relevant time when the said plot was purchased and construction was raised. His father retired in the year, 1956 from the post of Proof Reader from the Government Press. His fathers family consisted of 10 members. He was getting pension of Rs. 60.00 per month whereas plaintiff was a bachelor and was getting Rs. His father retired in the year, 1956 from the post of Proof Reader from the Government Press. His fathers family consisted of 10 members. He was getting pension of Rs. 60.00 per month whereas plaintiff was a bachelor and was getting Rs. 85/- per month, besides, his income from other sources. He was rather helping his father as and when required, it was denied that defendant Rakesh Kumar Duggal ever became co-owner in this house. It was denied that this house was coparcenary property. Plaintiff became owner of the house during the life time of his father Nihal Chand. Nihal Chand had been filing income-tax returns in his individual capacity and not as Karta of the Hindu Undivided Family. Defendants had been filing their own returns of their income individually. It was reiterated that the defendants are occupying these premises as licensees under him. Earlier, plaintiff was residing in house No. 2269, Sector 20-G, Chandigarh which is a Government house. He shifted to this house on 31-12-1975 as the instructions of the Chandigarh Administration are that Government employees in occupation of Government houses should shift to their own houses, Defendants No. 1 and 2 are in occupation of portion of House No. 1157, Sector 21-B, Chandigarh as mentioned in the plaint. Remaining portion is with the mother and sister of the plaintiff. Sister is un-married and mother is widow. They are living there or licensees under the plaintiff. It was reiterated that defendants undertook to vacate these premises as and when MIG House was allotted to them. It was reiterated that the defendants or the other legal heirs of Nihal Chand are not entitled to any share in this house. 9. On the pleadings of the parties, the following issues were framed by the trial Court : 1. Whether the suit is bad for mis-joinder of parties? OPD 2. Whether the suit is bad for non-joinder of parties? OPD 2-a. Whether the plot of house No. 1157, Sector 21-B, Chandigarh was purchased and building thereon was constructed by Sh. N. C. Duggal alone from his own funds? If so, to what effect? OPD 3. Whether the plaintiff is entitled for the possession of one room and kitchen on the first floor and one room on the barsati of house No. 1157, Sector 21-B, Chandigarh? OPP. 4. Whether the plaintiff is entitled for the recovery of Rs. 1085.00? OPP. 10. N. C. Duggal alone from his own funds? If so, to what effect? OPD 3. Whether the plaintiff is entitled for the possession of one room and kitchen on the first floor and one room on the barsati of house No. 1157, Sector 21-B, Chandigarh? OPP. 4. Whether the plaintiff is entitled for the recovery of Rs. 1085.00? OPP. 10. Vide order dated 9-6-1989, Subordinate Judge Ist Class, Chandigah decreed the plaintiffs suit directing the defendants to surrender possession of one room and kitchen on the first and one room on the barsati floor of House No. 1157, Sector 21-B, Chandigarh and for the recovery of damages for the un-authorised use and occupation of these premises at the rate of Rs. 15.00 per day for the period from 8-1-1986 and till its actual vacation by them in view of is finding that this property was not ancestral, joint Hindu family property but it was self acquired property of Nihal chand and that the plaintiff was absolute owner of this property; he having purchased it from his father Nihal Chand and the defendants are licensees under him. It was found that the defendants are liable to surrender possession to the plaintiff after licence in their favour had been terminated. It was found that the property held by the plaintiff was not available to them in view of the provisions of S. 4 of the Benami Transaction (Prohibition of the right to recover property) Act, 1988. It was found that the entire payment for this plot was made by the plaintiff. It was also found that the entire loan raised by the plaintiff for the construction of the plot was repaid by him and no contribution was made by Nihal Chand towards the repayment of the loan by the plaintiff or towards the repayment of the loan raised by the plaintiff for raising construction on the plot. 11. Not satisfied with the order dated 9-6-1989, defendants went in appeal, which was dismissed by Additional District Judge, Chandigarh vide order dated 14-12-1995. 12. Still not satisfied, defendants have come up in further appeal to this Court. 13. I have heard the learned counsel for the parties and have gone through the record. 14. 11. Not satisfied with the order dated 9-6-1989, defendants went in appeal, which was dismissed by Additional District Judge, Chandigarh vide order dated 14-12-1995. 12. Still not satisfied, defendants have come up in further appeal to this Court. 13. I have heard the learned counsel for the parties and have gone through the record. 14. As per Baldev Kumar plaintiff (P.W. 1), plot No. 2 Street E, Sector 21-B, Chandigarh presently house No. 1157, Sector 21-B, Chandigarh measuring 10 marlas was allotted to his father in the year, 1953, his father sold this plot to him for a consideration of Rs. 2436.00. He executed necessary documents in the year, 1959 in his favour. The said plot was transferred in his name in the year, 1959 by his fahter. He (Baldev Kumar Duggal) raised construction on this plot entirely with his own funds. He raised loan under House Building Loan Scheme from the Estate Officer, UT, Chandigarh to the tune of Rs. 17,000.00. He executed security bond for securing the loan. Security bond is Ex. P-1 (photo copy). The said security bond was returned after the repayment of the loan by him, Loan was received by him in three instalments. He repaid the entire amount with his own funds. He received letter from the Estate Office Ex. P-2 (photo copy) and the receipt regarding payment of loan mark A, No due certificate issued to him by the Estate Officer is Ex. P-3. He stated that he spent money over and above Rs. 17,000.00 on the construction raised by him on this plot. He borrowed Rs. 9000.00 from Pandit Piare Lal in the year, 1960. He was in service at that time. He borrowed Rs. 2000.00 from his father and spent Rs. 4000.00 from his own savings for constructing this house. He has repaid the amount borrowed by him. Conveyance deed was executed in his favour by the Estate Officer which is Ex. P-4 (photo copy). House tax was imposed by the Chandigarh Administration and he received notice from the Chandigarh Administration. He filed objections. Mark-B is the copy of the objections filed by him before the House Tax Assessing Authority. He made payment of house tax vide receipt Ex. P-5. His father opened a shop namely C.P. Singh Store in Sector 21-B, Chandigarh for Rakesh Kumar Duggal-defendant. He filed objections. Mark-B is the copy of the objections filed by him before the House Tax Assessing Authority. He made payment of house tax vide receipt Ex. P-5. His father opened a shop namely C.P. Singh Store in Sector 21-B, Chandigarh for Rakesh Kumar Duggal-defendant. Income of the shop was received by Rakesh Kumar Duggal, Rakesh Kumar Duggal-defendant sold the said shop and went to Sweden. He came from Sweden empty handed. His father again arranged the opening of a Coffee House in Sector 22, Chandigarh for Rakesh Kumar Duggal. His father also helped Rakesh Kumar Duggal in opening a canteen in Molins of India. He stated that he is absolute owner of the house in question. Rakesh Kumar Duggal and his wife are putting up in the demised premises as his licensees. 15. Shri Dharam Pal Singh Assistant, Estate Office U.T., Chandigarh PW-2 stated that Ex. P-2 is the letter for repayment of loan to Baldev Kumar Duggal and Ex.PW2/A is the receipt of the payment of loan amount by Baldev Kumar Duggal, Ex./P-3 is the no due certificate issued by the Estate Officer, UT Chandigarh. He stated that Baldev Kumar deposited the amount of instalments in the Estate Office from time to time through receipts Ex. PW-2/1 to Ex.PW.2/15, which were issued to him by the Estate Office. 16. Shri Hari Mohan, Clerk, Office of Estate Officer, U.T. Chandigarh PW-4 stated that as per the record of Estate Office, House No. 1157, Sector 21-B, Chandigarh is the ownership of Baldev Kumar Duggal, Ex.PW4/1 is the conveyance deed. In the beginning, this property was allotted to Nihal Chand on 14-1-1953 and was transferred in the name of Baldev Kumar on 23-7-1959, Sh. Ramesh Chander Joshi, Clerk, Estate Office PW-5 stated that Baldev Kumar filed objections to the notice sent to him as regards house tax levied on property No. 1157, Sector 21-B, Chandigarh. House tax was paid by Baldev Kumar prior to the issuing of notice to Baldev Kumar. Inspector had carried out survey. 17. Rakesh Kumar DW-1 stated that house was constructed by his father and mother in the year 1961-1962. Since then he has been living in this house, Loan raised for building this house was repaid by his father and mother before the death of his father, Mansur Khan was the mason who constructed this house. Inspector had carried out survey. 17. Rakesh Kumar DW-1 stated that house was constructed by his father and mother in the year 1961-1962. Since then he has been living in this house, Loan raised for building this house was repaid by his father and mother before the death of his father, Mansur Khan was the mason who constructed this house. Baldev Kumar joined service in 1956-1957 as a T-mate in the Electricity Department. At that time he was getting Rs. 60.00 per month only as salary. He was not in a position to purchase plot with his meagre salary. He was not in a position to raise construction with his meagre salary. His father had purchased this plot in Sector 21, Chandigarh on which he raised construction of House No. 1157, Sector 21-B, Chandigarh. His father was owning a big shop-cum-flat in Sector 22, Chandigarh and he had obtained loan for raising construction of said shop-cum-flat. At that time, same person could not obtain two loans and, therefore, loan was taken for building plot No. 2, Street E Sector 21-B, Chandigarh by his father in the name of Baldev Kumar. 18. Smt. Gian Devi DW-2 who is the mother of Baldev Kumar and Rakesh Kumar stated that house No. 1157, Sector 21-B, Chandigarh was built by her with the sale proceeds of her ornaments. Her husband was then alive. She, her two sons Baldev Kumar, Rakesh Kumar, and her daughter Om Kumari are residing in this house. Plot had been purchased by her husband. SCF had also been purchased by him. Her husband had taken loan for building house. At that time, her children were small. She is the owner of this house. She never got any money from her sons. She distributes among Rakesh Kumar and Baldev Kumar, the rent which SCF fetches, Baldev Kumar left house after he had quarrel. After the death of his father, he was brought to this house. 19. Shri Ranbir Singh, Clerk, Estate Office DW-7 stated that Sh. Nihal Chand Duggal had applied for loan for construction of SCF No. 15, Sector 22-D, Chandigarh on 19-12-1958. He does not know whether before 19-12-1958, Nihal Chand had obtained any loan. Loan was sanctioned on 27-10-1959 for Rs. 19,000.00 in favour of Nihal Chand Duggal. According to record three payments of loan instalments were made through cheques by Nihal Chand Duggal. He does not know whether before 19-12-1958, Nihal Chand had obtained any loan. Loan was sanctioned on 27-10-1959 for Rs. 19,000.00 in favour of Nihal Chand Duggal. According to record three payments of loan instalments were made through cheques by Nihal Chand Duggal. Cheques were drawn on United Commercial Bank, Sector 22, Chandigarh and the loan amount was fully satisfied. A sum of Rs. 1574.20 by means of cheque No. FO 2853 dated 31-3-1954 payable at United Commercial Bank Limited with respect to house in dispute was received. This cheque was encashed in favour of Estate Office. There was cheque No. 21858 dated 5-3-1965 for Rs. 787.10 on account of repayment of loan. Cheque was honoured. Another cheque No. 285912 dated 31-8-1962 for Rs. 3935.50 payable at New Bank of India was submitted on 3-9-1962. The said cheque was dishonoured. Estate Office informed Baldev Kumar vide letter dated 24-9-1962 regarding dishonouring of the cheque but no reply was received from him. In cross-examination he stated that letters dated 31-3-1964 and 5-3-1965 enclosing cheques with respect to house No. ZE, Sector 21, Chandigarh were submitted by Baldev Kumar-plaintiff. Loan with respect to the house in dispute was sanctioned in favour of the plaintiff on 26-2-1960. He was paid Rs. 17,000/- on 26-2-1960. He stated that Baldev Kumar-plaintiff has repaid the complete loan as per record. Before sanction of loan, the price of plot except Rs. 153.59 paise which was still to be adjusted by settlement authority was to be paid. Letter Ex.P-11 was written by Estate Officer to the plaintiff for the recovery of the loan as arrears of land revenue. At the time of allowing loan, Baldev Kumar mortgaged the property in dispute in favour of Estate Office in the year 1960. Property was subsequently redeemed on the request of the plaintiff vide letter Ex. P-12 in the year, 1975. Vide letter Ex. P-13 mortgage deed was returned to Baldev Kumar. Before releasing mortgage deed, Baldev Kumar had cleared the loan. He brought the file in regard to house No. 1157, Sector 21-B, Chandigarh maintained in the Estate Office. He stated that there was no letter on behalf of Nihal Chand Duggal nor he submitted any letter for payment of any loan (on that file page 1 to 141). 20. Plot No. 2 Street E. Sector 21-B, Chandigarh was allotted to Nihal Chand Duggal on 14-1-1953 by the Estate Office. He stated that there was no letter on behalf of Nihal Chand Duggal nor he submitted any letter for payment of any loan (on that file page 1 to 141). 20. Plot No. 2 Street E. Sector 21-B, Chandigarh was allotted to Nihal Chand Duggal on 14-1-1953 by the Estate Office. Nihal Chand Duggal requested Estate Officer for the transfer of plot No. ZE, Sector 21-B, Chandigarh to his son Baldev Kumar vide letter Ex. D-6 dated 7-7-1959 which was accompanied by his sworn affidavit. Letter Ex.D-6 reads as follows : "To The Estate Officer, Chandigarh, Subject : Transfer of plot No. 2 St. E, Sector 21-B, Chandigarh 10 marla plot. I have been allotted plot No. 2, St. E, Sector 21-B, Chandigarh a 10 marla plot which may pl. be transferred to my son Baldev Kumar. The necessary affidavits duly attested by Oath Commissioner are attached herewith. Thanking you, Yours faithfully, Sd/- (N.C. Duggal) 12D, 57B, Sector 23-B, Chandigarh." 21. Affidavit Ex.D-7 sworn by N. C. Duggal reads as follows : "I, N.C. Duggal s/o Shri Ram Saran Duggal resident of Chandigarh do solemnly affirm that I want to transfer my title in site No. 2 on Street 2-E in Sector 21-B, Chandigarh Capital to Baldev Kumar s/o Shri N. C. Duggal and will have no claim over the site after its transfer. No profiteering is involved in this transaction. I have not drawn any loan under any scheme sponsored by the Government". Baldev Kumar also attached his sworn affidavit to application Ex/D-6, which is Ex.D 7/1. It reads as follows : I, Baldev Kumar s/o Shri N. C. Duggal of PWD (Elect), Sub-Dn. No. 1, do hereby solemnly affirm that I agree to have site No. 2, on Street E Sector 21-B, Chandigarh Capital from Shri N. C. Duggal, I further undertake to pay all sums due to Government in respect of this site and to abide by the provisions of the Capital of Punjab (Development and Regulation) Act, 1952 and the rules made thereunder. No profiteering is involved in this transaction. I am a displaced person." 22. Learned counsel for the appellants submitted that plot No. 2 Street E Sector 21-B, Chandigarh was no longer the ownership of Estate Office, Chandigarh because the entire price of the plot had been paid by Nihal Chand. No profiteering is involved in this transaction. I am a displaced person." 22. Learned counsel for the appellants submitted that plot No. 2 Street E Sector 21-B, Chandigarh was no longer the ownership of Estate Office, Chandigarh because the entire price of the plot had been paid by Nihal Chand. When the entire price of the plot stood paid by Nihal Chand, title passed on to him and title did not remain in the Estate Officer. It was submitted that deed of conveyance Ex.P-4 of this site executed by Governor of Punjab on 26-8-1963 in favour of Baldev Kumar for a sum of Rs. 2436.00 is a waste paper conferring no title on Baldev Kumar as on 26-8-1963 title was in Nihal Chand Duggal. It was submitted that Nihal Chand Duggal could pass title to Baldev Kumar only by means of a registered sale deed. It was submitted that Sec. 54 of the Transfer of Property Act came into force with effect from 1-4-1955 in the State of Punjab through notification dated 26-3-1955. It was submitted that no valid transfer of plot by Nihal Chand in favour of Baldev Kumar by mere application Ex. D6/affidavit Ex.D-7 was possible. 23. It was submitted that on or after 1-4-1955, no sale of immovable property worth more than Rs. 100.00 can take place otherwise than through a registered sale deed. It was submitted that Nihal Chand Duggal did not execute any registered sale deed in favour of Baldev Kumar and, therefore, no title vested in him and title remained in Nihal Chand Duggal. 24. Learned counsel for the appellants submitted that when Nihal Chand Duggal had made the entire payment, title passed on to him and it did not remain in the Estate Office and as such conveyance deed Ex. P-4 is a waste paper conferring no title on him. In support of this submission, he drew my attention to M/s. Jagdish Chand Radhe Shyam v State of Punjab, AIR 1972 SC 2587, where it was held that once auction sale of Government land or building is complete the title in the property vests in the purchaser and it cannot be said that the Government remains the owner of the property till full consideration is paid. This is clear from the language of S. 3, Capital of Punjab (Development and Regulation) Act, 1952 which provides that the unpaid portion of the consideration money will become the first charge on the property. 25. In Para 11 of this judgment, the Hon ble Supreme Court has observed that broadly stated Sec. 3 of the 1952 Act indicates these features. The Government has power to sell by auction, allotment or otherwise any land or building. The consideration money is to be paid in such manner as the Government may prescribe. The unpaid portion of the consideration money will be first charge on the site or the building. The transferee except with the previous permission in writing of the Estate Officer shall not be entitled to sell, mortgage or otherwise transfer any right, title or interest in the site or building until the amount which is a first charge has been paid in full. The prohibition against sale, mortgage or transfer by the transferee except with the previous permission in writing of the Estate Officer of any right, title or interest in the site or building establishes the ownership and rights of the transferee. 26. Application Ex. D-6 made by Nihal Chand Duggal was processed by the Estate Officer, Chandigarh and it was observed"since we are allowing transfer in such cases, request of the allottee may be accepted and Baldev Kumar may be intimated that in case of non-adjustment of Rs. 153.59 paise, he will be liable to pay the dues with interest/penalty etc. after the transfer". 27. Learned counsel for the respondent on the other hand submitted that in this case only allotment had been made in favour of Nihal Chand Duggal and no conveyance deed had been executed in his favour by the Estate Officer, Chandigarh and as such on the request of Nihal Chand Duggal accompanied by his sworn affidavit, the allotment was transferred in favour of his son Baldev Kumar Duggal and no sale deed by Nihal Chand Duggal was required in favour of Baldev Kumar Duggal. 28. 28. In support of this submission, he drew my attention to M/s. Bombay Salt and Chemical Industries V/s. L. J. Johnson, AIR 1958 SC 289, it was held that merely because Sec. 20 of the Displaced Persons (Compensation and Rehabilitation), Act, 1954 permits a sale by auction, it cannot be contended that whenever there is an auction, the sale must be deemed to be complete. Whether there is a transfer or not depends on the conditions of the auction and these have to be examined to find out when a transfer of the property auctioned takes place. There may be a sale by auction where the sale is not complete till, for example, a document is executed. The section furthermore, states that the transfer under it would be subject to the rules made under the Act. 29. It is clear from the rules and the conditions of sale imposed under R. 90 (3) and set out in the notice of sale that the declaration that a person was the highest bidder at the auction does not amount to a complete sale and transfer of the property to him. The fact that the bid has to be approved by the Settlement Commissioner shows that till such approval which the Commissioner is bound to give, the auction-purchaser has no right at all. It would further appear that even the approval of the bid by the Settlement Commissioner does not amount to a transfer of property for the purchaser, has yet to pay the balance of the purchase-money and the rules provide that if he fails to do that he shall not have any claim to the property. The correct position is that on the approval of the bid by the Settlement Commissioner, a binding contract for the sale of the property to the auction-purchaser comes into existence. Then the provision as to the sale certificate would indicate that only upon the issue of it a transfer of the property takes place. 30. It was submitted that Nihal Chand Duggal had paid the entire price to the Estate Officer, Chandigarh. There was no title left in the Estate Officer and, therefore, execution of the conveyance deed by the Estate Officer in favour of Baldev Kumar Duggal is of no consequence. There is no sale deed executed by Nihal Chand Duggal in favour of Baldev Kumar Duggal. 31. There was no title left in the Estate Officer and, therefore, execution of the conveyance deed by the Estate Officer in favour of Baldev Kumar Duggal is of no consequence. There is no sale deed executed by Nihal Chand Duggal in favour of Baldev Kumar Duggal. 31. Suffice it to say, payment of entire sale money by Nihal Chand Duggal to the Estate Officer, did not confer any title on him. Title would be deemed to have been inhering in the Estate Officer till execution of conveyance deed in favour of Nihal Chand Duggal by the Estate Officer, Chandigarh. That was why Nihal Chand Duggal made an application to the Estate Officer that this property be transferred to his son Baldev Kumar Duggal without any further payment as he had already made payment. His application was processed in the office of Estate Officer, Chandigarh and the recommendation of the officer was that this property be transferred in favour of Baldev Kumar Duggal as they are allowing transfer in such cases. Sec. 3 of the Capital of Punjab (Development and Regulation) Act, 1952 lays down as follows : 2. Power of State Government in respect of transfer of land and building in Chandigarh- (1) The State Government may sell, lease or otherwise transfer, whether by auction, allotment or otherwise, any land or building belonging to the Government in Chandi-garh on such terms and conditions as it may, subject to any rules that may be, made under this Act, think fit to impose. (2) The consideration money for any transfer under sub-section (1) shall be paid to the State Government in such manner and in such instalments and at such rate of interest as may be prescribed. (2) The consideration money for any transfer under sub-section (1) shall be paid to the State Government in such manner and in such instalments and at such rate of interest as may be prescribed. (3) the unpaid portion of the consideration money together with interest or any other amount if any due to the State Government on account of the transfer of any site or building under sub-section (1) shall be a first charge on that site or building, as the case may be, and notwithstanding anything contained in any other law for the time being in force, no transferee shall, except with the previous permission in writing of the Estate Officer, be entitled to sell, mortgage or otherwise transfer (except by way of lease from month to month) any right, title or interest in the site or building transferred to him under sub-section (1) until the amount which is a first charge under this sub-section has been paid in full to the State Government." 32. In this case, no transfer of this property took place by the Estate Officer in favour of Nihal Chand Duggal. From the Estate Officer there was no transfer of title in favour of Nihal Chand Duggal. Factum of payment of entire sale money by Nihal Chand Duggal to the Estate Officer did not clothe him with any title in this property when this property had not been transferred to him by the Estate Officer by executing of any conveyance deed. As for instance if"B" has received entire consideration money from"A" in consideration of agreeing to sell some immovable property to him and if he does not execute any sale deed in his favour,"A" will have to file either suit for mandatory injunction calling upon him to execute sale deed in his favour without any further payment or he may have to file suit for specific performance directing him to execute sale deed in his favour without any further payment to him. The use of the word"transfer" in sub-section (2) of Sec. 3 of the Act indicates that there should be execution of some formal deed of conveyance by the Estate Officer so that title is transferred from the Estate Officer to the transferee. That is why in this case deed of conveyance Ex. P-4/1 was executed by the Estate Officer in favour of Baldev Kumar Duggal in pursuance of Sec. 3 ibid. That is why in this case deed of conveyance Ex. P-4/1 was executed by the Estate Officer in favour of Baldev Kumar Duggal in pursuance of Sec. 3 ibid. In the conveyance deed Ex. P4 recital among others is whereas the transferee has paid the sum of Rs. 2436.00 (Rupees two thousand four hundred and thirty six only) being the purchase money, subject to variation by mutual agreement and this recital is in pursuance of the request of Nihal Chand Duggal that he had already made payment for this property and as such this property be transferred in favour of his son. 33. In M/s. Jagdish Chand Radhey Shyam V/s. The State of Punjab, AIR 1972 SC 2587, the observations of the Hon ble Supreme Court that once auction sale of Government land or building is complete, the title in the property vests in the purchaser and it cannot be said that the Government remains the owner of the property till full consideration is paid were in the context of resumption and forfeiture of the property when part payment of the purchase price remained to be made. 34. In Para 16 of the report, the Hon ble Supreme Court has observed that Section 9 confers power to resume the site. There is a charge on the land for the unpaid consideration money. This charge can be enforced by instituting a suit in a Court of law. The owner will have the opportunity of paying the money and clearing the property of the charge. On the other hand when the Government proceeds under Section 9 of the Act to resume the land or building the Government proceeds under the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1959. There is no guidance in the Act as to when the Government will resort to either of the remedies. 35. It is thus clear that the observations of the Hon ble Supreme Court that once auction sale of Government land or building is complete, title in the property vests in the purchaser and it cannot be said that the Government remained owner of the property till full consideration is paid appear in the context of resumption of the property under Section 9 of the Act. After the auction sale is complete, the Government cannot deal with that property over again. After the auction sale is complete, the Government cannot deal with that property over again. For recovery of unpaid portion of the consideration money, the Government can file suit for recovery but cannot resume the property. 36. In my opinion, when there was no transfer of title through a formal deed of transfer by the Estate Officer in favour of Nihal Chand Duggal, there was nothing wrong if the Estate Officer transferred the property to Nihal Chand Duggals son Baldev Kumar Duggal at the instance of Nihal Chand Duggal who had requested the Estate Officer to transfer this property in favour of his son Baldev Kumar Duggal. 37. Learned counsel for the appellants next submitted that Baldev Kumar Duggal did not have any means to pay for this property and, therefore, he did not become owner of this property. It was submitted that Nihal Chand Duggal paid for this property. He paid instalments of loan raised by Baldev Kumar Duggal for construction of this property. Nihal Chand Duggal had to get this property transferred from Estate Officer, Chandigarh to Baldev Kumar Duggal as he was his eldest son, as also he was already in receipt of loan. He could not recieve another loan from the Estate Officer. It was submitted that the plot was purchased by Nihal Chand Duggal on 14-1-1953 and possession was taken by him from the Estate Officer on 8-12-1954. The entire construction of the plot was raised by Nihal Chand Duggal and every penny was paid by him during his lifetime. Last instalment was deposited on 26-7-1975. Nihal Chand expired on 12-12-1975. Transfer in the name of Baldev Kumar Duggal was a mere family settlement for the purpose of obtaining loan from the Estate Officer because Nihal Chand Duggal was owning a big SCF in Sector 22 and had obtained a loan for its construction. This device was invented as second loan was not feasible and practical, Baldev Kumar Duggal started his career as T-mate on meagre salary of Rs. 40.00 on 5-5-1956 and was not in a capacity either to raise construction or to repay loan. Entire funds for construction and repayment of loan were provided by Nihal Chand Duggal and Baldev Kumar Duggal used to deposit the amount in the Estate Office. It is a three storeyed construction which could not be raised with a loan amount of Rs. 17,000.00. Entire funds for construction and repayment of loan were provided by Nihal Chand Duggal and Baldev Kumar Duggal used to deposit the amount in the Estate Office. It is a three storeyed construction which could not be raised with a loan amount of Rs. 17,000.00. It is"A" class construction, which could not be raised during those days at a cost of not less than Rs. 60,000.00. In support of this submission that Baldev Kumar Duggal did not have means to raise construction, my attention was drawn to his salary statement. 38. Baldev Kumar Duggal has stated about how he arranged money for raising construction. He stated that besides Rs.17,000.00 which he took as loan from the Estate Officer, Chandigarh, he borrowed Rs. 9,000.00 from Pandit Piara Lal. He borrowed Rs. 2,000.00 from his father. He spent Rs. 4,000.00 from his own savings for construction of the house. Amounts borrowed by him have been repaid by him. 39. He was believed by the two Courts below on this aspect of the matter on appreciation of evidence. In second appeal, there can be no appraisal of evidence. It was held in Ramchandra Pandurang Sonar (Deceased) through his heirs and legal representatives V/s. Murlidhar Ramchandra Sonar, 1990 (3) JT (SC) 202 that unless the High Court is satisfied that the case involved a substantial question of law it cannot entertain the second appeal. It cannot interfere on the finding of the fact arrived at by the Courts below. 40. It was held in Karnataka Board of Wakf V/s. Anjuman-E-Ismail Madris-Un-Niswan, 1999 (5) JT (SC) 573 that concurrent findings of fact by trial and appellate Court cannot be interfered with by the High Court in second appeal unless there is finding of perversity on the part of lower Courts in recording finding of fact. 41. In this case, the finding recorded by the two Courts below that Baldev Kumar Duggal paid for this property is supported by evidence on record. In second appeal the finding of fact cannot be interfered with even if it appears an erroneous finding if it is supported by some evidence on record. In second appeal, it cannot be said that lower Courts had acted on insufficient evidence while returning a particular finding of fact. In the entire record, Baldev Kumar Duggal figures. Nowhere Nihal Chand Duggal figures. In second appeal, it cannot be said that lower Courts had acted on insufficient evidence while returning a particular finding of fact. In the entire record, Baldev Kumar Duggal figures. Nowhere Nihal Chand Duggal figures. Vide letter Ex P-2 Estate Officer, Chandigarh, called upon Baldev Kumar Duggal to pay the amount of Rs. 224.26 paise due on account of arrears of penal interest on the loan advanced to him under House Building Scheme. Baldev Kumar paid this amount and receipt Ex. PW2/A was given to him, which is dated 12-10-1976. Vide letter Ex. P-3 no due certificate under House Building Loan Scheme/return of loan security-cum-Mortgage deed was given to Baldev Kumar Duggal. In letter Ex. P-3 dated 2-8-1976 it is recited that loan advanced to him under the said scheme has been received in full along with interest and, therefore loan security-cum-mortgage deed is returned to him duly cancelled. 42. It may be recalled that he executed mortgage deed Ex. P-1 in favour of Estate Officer at the time of getting loan by him from the Estate Officer, Chandigarh to the tune of Rs. 17,000.00 under house building loan scheme and this security bond was returned to him after he had made the entire payment of the loan amount together with interest. It is Baldev Kumar Duggal who made application Ex. P-12 to the Estate Officer for redeeming the mortgage as the instalment of loan had been paid. 43. Whatever amount were deposited, they were deposited by Baldev Kumar Duggal. This property cannot be viewed as the property of Joint Hindu Family as this property is shown to have been built by Baldev Kumar Duggal with the funds arranged by him. 44. In J. Jaydayal Poddar (deceased) through L.Rs. V/s. Mst. Bibi Hazra, AIR 1974 SC 171, it was held as under by the Hon ble Supreme Court "It is well established that the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner, always rests on the person asserting it to be so. This burden has to be strictly discharged by adducing legal evidence of a definite character, which would either directly prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of that fact. This burden has to be strictly discharged by adducing legal evidence of a definite character, which would either directly prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of a benami is the intention of the party or parties concerned; and not unoften such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him; nor justify the acceptance of mere conjectures or surmises, as a substitute of proof. The reason is that a deed is a solemn document prepared and executed after considerable deliberation and the person expressly shown as the purchaser or transferee in the deed, starts with the initial presumption in his favour that the apparent state of affairs is the real state of affairs. Though the question whether a particular sale is benami or not, is largely one of fact and for determining this question, no absolute formula or acid test, uniformly applicable in all situations, can be laid down; yet in weighing the probabilities and for gathering the relevant indicia, the Courts are usually guided by these circumstances : (1) the source from which the purchase money came; (2) the nature and possession of the property, after the purchase; (3) motive, if any, for giving the transaction a benami colour; (4) the position of the parties and the relationship, if any, between the claimant and the alleged benamidar; (5) the custody of the title deeds after the sale; and (6) the conduct of the parties concerned in dealing with the property after the sale;" 45. In this case Baldev Kumar Duggal is the eldest son of Nihal Chand Duggal. He was employed since the year 1956. He remained unmarried for a good number of years. He was thus in a position to save. He raised loan also. He raised borrowings also and thus raised construction. It is not that he was not in a position to raise any construction. His father died in the year, 1975. He was employed since the year 1956. He remained unmarried for a good number of years. He was thus in a position to save. He raised loan also. He raised borrowings also and thus raised construction. It is not that he was not in a position to raise any construction. His father died in the year, 1975. If he had been real owner of the property and Baldev Kumar Duggal a benami owner of the property, he would have secured the re-transfer of the property to him, particularly when property was standing in the name of Baldev Kumar Duggal and he had made almost the entire payment of the loan. Fact that he did not secure the re-transfer of the property to him shows that he was taking Baldev Kumar Duggal to be the real owner. 46. In this case, it cannot be said that Baldev Kumar Duggal was the benami owner of the property and the real owner was Nihal Chand Duggal. Nihal Chand Duggal was owner of this property and he was thus free to alienate it in any manner he liked. 47. In C. N. Arunachala Mudaliar V/s. C. A. Muruganatha Mudaliar, AIR 1953 SC 495, the Hon ble Supreme Court held that a Mitakshara father is not only competent to sell his self-acquired immovable property to a stranger without the concurrence of his sons but he can make a gift of such property to one of his own sons to the detriment of another and he can make even an unequal distribution amongst his heirs. 48. The son can assert an equal right with the father only when the grandfathers property has devolved upon his father and has become ancestral property in his hands. The property of the grandfather can normally vest in the father as ancestral property if and when the father inherits such property on the death of the grandfather or receives it by partition, made by the grandfather himself during his lifetime. On both these occasions the grandfathers property comes to the father by virtue of the latters legal right as a son or descendant of the former and consequently it becomes ancestral property in his hands. 49. In this case Nihal Chand Duggal was free to sell this property to Baldev Kumar Duggal or gift it to him as it was his self- acquired property. 50. 49. In this case Nihal Chand Duggal was free to sell this property to Baldev Kumar Duggal or gift it to him as it was his self- acquired property. 50. Faced with this position, learned counsel for the appellants submitted that there is an admission by Baldev Kumar Duggal in his cross-examination that the entire construction was raised by late Nihal Chand and every penny of instalment of the loan was also paid by him during his life-time. This settlement of transferring the house in his name was device only to obtain loan. 51. We have to read these lines in the context of what he has stated in the entire of his statement, which runs into 7 pages. In fact this question was put to him in the form of suggestion. While denying this suggestion, he stated that it is not correct that the entire construction was raised by late Shri Nihal Chand and every penny of instalment of the loan was also paid by him during his lifetime and this settlement of transferring the house in his name was the device only to obtain the loan. 52. In this case strictly speaking no question of law arose what to talk of substantial question of law. The decision of controversy between the parties rested in appreciation of oral and documentary evidence. On appreciation of oral and documentary evidence, Courts below found in favour of respondent Baldev Kumar Duggal. So, this appeal fails and is dismissed. Appellants are allowed one year to vacate these premises and hand over its vacant possession to the respondent. No costs. Appeal dismissed.