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2002 DIGILAW 492 (PNJ)

Teja Singh v. Punjab State Electricity Board

2002-05-02

M.M.KUMAR

body2002
JUDGMENT M.M. Kumar, J. - This revision petition filed under Section 115 of the Code of Civil Procedure, 1908 (for brevity, the Code) is directed against the order dated 16.4.2002 passed by the District Judge, Patiala dismissing the appeal of the plaintiff-petitioners in which the order of the Additional Civil Judge (Senior Division), Patiala. dated 22.12.2001 was challenged. Vide order dated 22.12.2001, Additional Civil Judge has dismissed the application of the plaintiff-petitioners filed under order 39 rules 1 and 2 read with section 151 of the Code seeking ad interim stay during the pendency of the suit. 2. Brief facts of the case as unfolded in this petition are that the plaintiff-petitioners have filed a suit for permanent injunction claiming that the father of defendant-respondent No. 3 Isher Ram got installed an electric motor in his own name on 21.2.1991 and also deposited security for the connection. It is further claimed that the plaintiff-petitioners contributed in equal share to the amount of security deposited with defendant-respondent No. 1. It is also averred that after the death of Isher Ram demand notice for release of connection was issued in 1993-94 which was received by defendant- respondent No. 3. Asserting that defendant-respondent No. 3 did not have sufficient funds, electric motor connection was got installed on the land belonging to the plaintiff-petitioners and they were jointly irrigating their respective lands with the tube-well connection. Alongwith the suit, an application under order 39 rules 1 and 2 read with section 151 of the Code was also filed seeking ad interim injunction restraining the defendant- respondents from shifting the electric motor connection from khasra No. 873 to some other land. The application was dismissed by the Additional Civil Judge after recording a detailed order on 22.12.2001 and appeal filed against that order met the same fate. Learned district Judge while dismissing the application recorded the following order : "Admittedly, the electric motor connection was in the name of Isher Ram, father of defendant No. 3 and said Isher Ram died and defendant No. 3 is the sole legal heir of said Isher Ram. Therefore, the electric motor connection is in the name of defendant No. 3. The plaintiffs/appellants have not placed on the file any document to show if they are related to defendant No. 3 and if so through which common ancestor. Therefore, the electric motor connection is in the name of defendant No. 3. The plaintiffs/appellants have not placed on the file any document to show if they are related to defendant No. 3 and if so through which common ancestor. Therefore, no commonness or jointness between the parties is proved prima facie. Since the electric motor connection is admittedly in the name of defendant No. 3, prima-facie, therefore, the plaintiffs/appeallants have no right to stop defendant No. 3 from getting transferred the said electric motor connection number to any other piece of land." 3. I have heard Shri Ashok Aggarwal, learned counsel for the plaintiff- petitioners and have perused the record with his assistance. The learned counsel has argued that the plaintiff-petitioners are owners of khasra No. 873 and the tube-well connection has been operating from this khasra number. Therefore, status quo with regard to shifting of motor be granted. 4. I have thoughtfully considered the submissions made by the learned counsel and do not feel impressed with the same. Argument raised before me has been dealt with and repelled by both the Courts below for the reasons that the electric connection is in the name of Isher Ram the father of defendant- respondent No. 3. It has been asserted by the plaintiff-petitioners that the deposit for the release of electric connection paid to the Punjab State Electricity Board was in fact given by the plaintiff-petitioners and not by defendant-respondent No. 3 or father of defendant-respondent No. 3. In other words, it has been asserted that the father of defendant-respondent No. 3 is a benamidar as the funds for release and installation of electricity connection were provided and paid to the father of defendant-respondent No. 3 by the plaintiff-petitioner. In this context, it is apposite to refer to Sections 2, 3 and 4 of the Benami Transactions (Prohibition) Act, 1988 (for brevity, the Act) which read as under : 2. Definitions. - In this Act, unless the context otherwise requires, (a) "benami transaction" means any transaction in which property is transferred to one person for a consideration paid or provided by another person; (b) "prescribed" means prescribed by rules made under this Act; (c) "property" means property of any kind, whether movable or immovable, tangible or intangible, and includes any right or interest in such property. 3. Prohibition of benami transactions.- (1) No person shall enter into any benami transaction. 3. Prohibition of benami transactions.- (1) No person shall enter into any benami transaction. (2) nothing in sub-section (1) shall apply to the purchase of property by any person in the name of his wife or unmarried daughter and it shall be presumed, unless the contrary is proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter. (3) Whoever enters into any benami transaction shall be punishable with imprisonment for a term which may extend to three years or with fine or with both, (4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, an offence under this section shall be non-cognizable and bailable. 4. Prohibition of the right to recover property held benami. - (1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property. (2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property. (3) Nothing in this section shall apply, (a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family; or (b) where the person in whose name the property is held is a trustee or other persons standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity." 5. A perusal of clause (c) of Section 2 of the Act makes it obvious that the property which is covered by the Act would mean property of any kind movable or immovable, tangible or intangible and would include any right or interest in such property. A perusal of clause (c) of Section 2 of the Act makes it obvious that the property which is covered by the Act would mean property of any kind movable or immovable, tangible or intangible and would include any right or interest in such property. Section 3 of the Act imposes a prohibition on benami transactions and Section 4 of the Act imposes an embargo on filing a suit, claim or action to enforce any right in respect of any property held benami. Therefore, the filing of the suit by the plaintiff-petitioner is open to grave doubts. The Supreme Court in the case of Nand Kishore Mehra v. Sushila Mehra, (1995)4 SCC 572 has dealt with all the above mentioned sections and the objection raised on such sections can be raised by filing application under Order 7, Rule 11 of the Code. Similar view has been taken in the case of Rebti Devi v. Ram Dutt, (1997)11 SCC 714. 6. Another reason for disagreeing with the learned counsel for the plaintiff- petitioners is that it is seriously disputed that tubewell is operating from the land owned by the plaintiff-petitioners and it is claimed by defendant- respondent No. 3 that the tubewell is operating in their owned land. 7. For the reasons recorded above, this revision petition fails and is dismissed. Petition dismissed.