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2006 DIGILAW 1223 (PAT)

Santosh Kumar Verma v. Basanti Devi

2006-12-11

BARIN GHOSH, MADHAVENDRA SARAN

body2006
Judgment Barin Ghosh, J. 1. Appellants were defendants in Title Partition Suit No. 107 of 1996. In the plaint filed in the said suit, it was contended that the properties being the subject matter of the suit had been acquired by the husband of the Plaintiff No.1 and the father of the other plaintiffs on the basis of a registered sale deed in the name of the wife of his elder brother. It was stated that both the brothers were joint owners of the land and constructed building thereon and were residing therein jointly. It was also stated that there was a division in the holding, one in the name of the Plaintiff No.1 and the other in the name of the sons of the brother of the husband of the Plaintiff No.1. The sons and daughters of the brother of the husband of the Plaintiff No.1 were the defendants in the suit. 2. In the suit the defendants took a plea of maintainability of the suit on the ground that the claim of the plaintiffs having been based on benami transaction, the suit was barred by the provisions of Sec. 4 of Benami Transactions (Prohibition) Act, 1988 and pursuaded the trial court to decide the issue raised thereby by way of preliminary issue. The trial court decided the issue in favour of the defendants and accordingly dismissed the suit. 3. Plaintiffs thus preferred a First Appeal. In the appeal, an application was filed for grant of temporary injunction. Notice of that application was received by the defendants but they failed to file any show cause. At the time when the application for temporary injunction was heard, nobody appeared on behalf of the defendants. As a result, an order was passed restraining the defendants from demolishing the house standing over the suit plot during the pendency of the appeal. 4. After the said order was passed but before the First Appeal was admitted, two applications-one under Order XXXIX Rule 4 read with Sec.151 of the Code of Civil Procedure and another under Sec.151 of the same Code were filed by the defendants in the appeal. In the latter application, a prayer was made to dismiss the appeal in limine on the ground that the order impugned in the appeal having been passed under Order XIV Rule 2 of the Code no appeal lay. 5. In the latter application, a prayer was made to dismiss the appeal in limine on the ground that the order impugned in the appeal having been passed under Order XIV Rule 2 of the Code no appeal lay. 5. A learned Single Judge of this Court dismissed both the applications and hence this Letters Patent Appeal. 6. The learned Single Judge to our mind has rightly held that when a Court refuses to frame a preliminary issue under Order XIV Rule 2 of the Code no appeal lies against the order, but when a Court after framing such issue decides the same and in consequence thereof dismisses the suit, the order operates as a decree and an appeal lies against such order. 7. We are also of the view that the learned Single Judge correctly appreciated the true scope and purport of the proviso appended to Rule 4 of Order XXXIX of the Code and applied the facts of the case squarely to the provisions contained therein. 8. Accordingly there is no scope of interference. 9. The learned counsel appearing in support of the present Appeal contended that the suit was barbed by law and accordingly the appeal is also barred by law. We are of the view that this plea could be taken at the time of admission of the First Appeal and this could not be urged by way of an application made under Sec.151 of the Code. 10. The Appeal accordingly fails and the same is dismissed.