JUDGMENT : B.P. Ray, J. - This is an appeal at the instance of the Defendant against the judgment and decree passed by the Civil Judge (Sr. Division), (the then Subordinate Judge) Sonepur in T.S. No. 35 of 1987 on its file. The suit was filed by the Respondent-Plaintiff seeking declaration that the suit truck bearing Registration No. ORU-5767 belong to the Plaintiff. Learned Civil Judge (Sr. Dvn.) has decreed the suit in favour of the Plaintiff, vide the impugned judgment and decree. 2. The case of the plaint in the Court below is that the suit truck originally belonged to the partnership firm of one Abhaya Mohanty (P.W.2) and Natabar Mohanty (P.W.1) which was purchased by the Plaintiff in the name of Defendant-Appellant on consideration of Rs. 60,000/- payable in four equal instalments within a period from 2-2-1977 to 2-10-1980. After payment of the consideration money, on the request of the Plaintiff the suit truck was transferred in the name of the Defendant-Appellant, who was the foster son of the Plaintiff. But after registration of the same, as the relationship between the Plaintiff and the Defendant became strain, the Defendant made a claim over the suit truck and also went to the extent of filing criminal cases against the Plaintiff with regard to the ownership of the truck. Since the truck was purchased by the Plaintiff and the same was registered in his name, the Defendant has no manner of right and interest over the same, as such his claim of ownership of the truck was unfounded. So the Plaintiff having no alternative, filed the suit seeking declaration that the suit truck belonged to him. 3. Defendant appeared in this case and countered the said claim of the Plaintiff to be unfounded and without any basis. It is the further case of the Defendant that the Defendant is the adopted son of the Plaintiff, who had no male issue. The Defendant was brought from his natural parents on adoption by the Plaintiff in the year 1968 and the Plaintiff thereafter reared the Defendant as his son. But in the year 1980 the relationship between the Plaintiff and Defendant became strain and then the life of the Defendant became unsecured in the family of the Plaintiff. Taking pity on such condition of the Defendant his natural father, brother and maternal uncle gave Rs. 75,000/- to him. But in the year 1980 the relationship between the Plaintiff and Defendant became strain and then the life of the Defendant became unsecured in the family of the Plaintiff. Taking pity on such condition of the Defendant his natural father, brother and maternal uncle gave Rs. 75,000/- to him. Defendant paid the same to P.W. 1 and purchased the truck from him and thereafter by managing the truck himself he used to earn his livelihood. The ownership of the truck has also been changed in the name of the Defendant by its earlier registered owner. The Plaintiff as such is not the owner of the truck in question and as such his claim was unfounded. 4. On the basis of the aforesaid pleadings of the parties the trial Court framed as many as 6 issues, which are as follows: (i) Whether the Plaintiff or the Defendant is the real owner of the suit vehicle? (ii) Whether the suit vehicle remained in the possession of the Plaintiff? (iii) Is there cause of action for the suit? (iv) What relief, Plaintiff is entitled to? (v) Is the suit maintainable specially in presence of the Benami Transactions (Prohibition) Act, 1988? (vi) Whether the Defendant is the adopted son of the Plaintiff? 5. Evidence, oral and documentary, were led by both parties. Rendering the finding in the most and pivotal issue "whether the Plaintiff and Defendant are the real owner of the suit vehicle" in favour of the Plaintiff, the trial Court decreed the suit. Other ancillary issues such as whether the Defendant is the adopted son of the Plaintiff or not and whether the suit is maintainable in view of the prohibition of Benami Transactions (Prohibition) Act, 1988 (in short, "the Act") have also been answered by the trial Court. According to the trial Court, the Defendant being the adopted son of the Plaintiff and the suit vehicle having been purchased in Benami in the name of the Plaintiff and prohibition of Section 4 of the Act being not applicable to transaction made by Hindu undivided family in the name of a coparcener, the suit was maintainable. 6. The Appellant has challenged the finding of the forum below that the Plaintiff is the owner of the suit truck and the suit is maintainable to be against the weight of the evidence on record as well as law. 6. The Appellant has challenged the finding of the forum below that the Plaintiff is the owner of the suit truck and the suit is maintainable to be against the weight of the evidence on record as well as law. So also the maintainability of the suit has been challenged inasmuch as the same was simply suit for declaration without any consequential relief in view of the provision of Section 34 of the Specific Relief Act. 7. During the course of hearing of the appeal, learned Counsel appearing for the Appellant though did not challenge the finding that Defendant is the adopted son of the Plaintiff inasmuch as it was his case in the Court below, but challenged the finding that the suit truck was purchased by the Plaintiff in the name of the Defendant in benami and he being a coparcener i.e. being the adopted son of the Plaintiff a suit filed for declaration of the suit property to be the property of the Plaintiff was maintainable. According to the Defendant-Appellant, when there is material on record to show that he is the registered owner of the property and after his relationship with the Plaintiff became strained, he purchased the truck, the trial Court ought not have held the truck was purchased by the Plaintiff from its real owner and the Defendant was simply a name lender for the ownership of the vehicle and as such though he is a registered owner, he has no ownership on the suit truck. So also the finding that Section 4 of the Act is not applicable inasmuch as the Defendant being the coparcener and the property having purchased by the Plaintiff, Section 4 of the Act which prohibits the right of recovery of the property held benami has no application. Advancing the aforesaid submission it is contended by the learned Counsel for the Appellant that the impugned judgment and decree to be unsustainable and as such the appeal deserves to be allowed and the suit is liable to be dismissed. 8. None made appearance for the Respondent at the time of hearing of the appeal. Advancing the aforesaid submission it is contended by the learned Counsel for the Appellant that the impugned judgment and decree to be unsustainable and as such the appeal deserves to be allowed and the suit is liable to be dismissed. 8. None made appearance for the Respondent at the time of hearing of the appeal. After hearing learned Counsel for the Appellant and going through the materials on record in the considered opinion of this Court, the questions that have arisen for determination is that: (i) Whether the suit truck was purchased by the Plaintiff benami in the name of the Defendant; and if so, (ii) Whether the suit at the instance of the Plaintiff is maintainable in view of the prohibition contained in Section 4 of the Act? 9. Coming to the first question, it is not in dispute that the Defendant is the registered owner of the truck and as such the burden is heavily on the Plaintiff to prove that the same was purchased by him in the name of the Defendant. The Plaintiff in this regard has adduced evidence, oral and documentary. From the voluminous evidence oral and documentary adduced by the Plaintiff i.e. especially the evidence of P.Ws. 1 & 2 who are the original owners of the truck it has emerged that the Plaintiff had paid the consideration to transfer the truck in the name of the Defendant. The Defendant has come out with a case that he had paid the consideration amount by procuring the same from his relations after his relation with Plaintiff became strained for his security and plying the said truck. The Defendant though has taken such a plea and also the registered owner of the truck, but the evidence adduced by him with regard to his purchasing the truck by paying the consideration is so slender that the same is not in a position to militate against the weighty evidence adduced by the Plaintiff. So relying on the weighty evidence adduced by the Plaintiff, there is no manner of doubt that the finding of the forum below that the Plaintiff has proved that he has purchased the said truck by paying the consideration in the name of the Defendant. Hence, the Plaintiff is the ostensible owner of the said truck. So the finding of the trial Court in this regard does not require any interference. 10. Hence, the Plaintiff is the ostensible owner of the said truck. So the finding of the trial Court in this regard does not require any interference. 10. Now coming to the next question, the trial Court has rendered a finding that the aforesaid truck has been purchased in the name of the Defendant who claims to be the adopted son and as such the coparcener and there is no pleading that the Plaintiff had purchased the said truck for the benefit of the coparcener a suit for declaration to recover that property by the Plaintiff is maintainable, even though Section 4 of the Act is prohibiting filing of such suit to recover the same. Needless to say that the aforesaid Act bans Benami transaction after coming into operation of the aforesaid Act. So also Section 4 has admittedly got retrospective application. The Apex Court in the case of Mithilesh Kumar and Another Vs. Prem Behari Khare, has laid down the law that Section 4 of the Benami Transactions (Prohibition) Act, 1988 takes within its sweep transactions which were made prior to the Act came into force and as such has got retro activity. The Plaintiff in this case has not come out with a case that Defendant was the adopted son of the Plaintiff. It is all along the case of the Plaintiff that the Defendant was the foster son of the Plaintiff. No where also the Plaintiff said that the aforesaid truck was purchased by the Plaintiff for the benefit of the coparceners in the name of the Defendant. When the aforesaid was never the pleading of the Plaintiff, the trial Court appears to have gone wrong in recording a finding that the property was purchased in the name of the Defendant, who was the adopted son of the Plaintiff for the benefit of the coparcener and as such prohibition contained in Section 4 of the Act with regard to the recovery of the property held in benami by a person has no application in this case. Section 4 of the said Act specifically speaks that 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. Section 4 of the said Act specifically speaks that 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. But Sub-section (3) of the said Section prescribes exception to the aforesaid prohibition in respect of benami transaction made in the name of a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family; or the person in whose name the property is held is a trustee or other person 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. 11. When the Plaintiff has not come out with a case that the Defendant is a member of undivided Hindu family and the property was acquired in the name of the Defendant, who is a coparcener of that family for the benefit of other coparceners, the trial Court appears to have gone wrong in holding that as the Defendant claims to be a coparcener being the adopted son of the Plaintiff and he having not pleaded that the property was purchased for his benefit, the prohibition of Section 4 has got no application to this case and as such the suit was maintainable. 12. So for the foregoing reasons even though in this case the evidence on record leans in favour of the Plaintiff that he was the ostensible owner of the suit truck as it was purchased benami in the name of the Defendant, but the suit at the instance of the Plaintiff to recover the said property from the Defendant, who is the registered owner was not maintainable inasmuch as the same is not covered by the exception provided in Sub-section (3) of Section 4 of the Act. Hence, the impugned judgment and decree passed by the trial Court is indefensible. I would, therefore, allow this appeal ex parte. Consequently, the judgment and decree passed by the trial Court stands set aside and the suit of the Plaintiff stands dismissed. However, in the facts and circumstances, there shall be no order as to costs. Final Result : Allowed