JUDGMENT Mr. L.N. Mittal, J.(Oral):- Defendant No.2 Rajesh Lamba has filed the instant second appeal assailing judgment dated 2.9.2009 passed by learned Additional Distrtict Judge, Hisar. 2. Respondents No.1 and 2 - plaintiffs Pardeep Kumar Chaudhary and Arvind Kumar Chaudhary sons of Praduman Kumar Chaudhary have filed suit against appellant and proforma respondents No.3 to 8 alleging that suit land measuring 64 Kanals alongwith other land total measuring 88 kanals was owned by Mahender Kumar Chaudhary. To save it from surplus pool, he transferred the land to his wife Shanta Devi. Shanta Devi further transferred the suit land in favour of Ramesh defendant No.1 (proforma respondent No.4) vide sale deed dated 28.11.1977 without consideration as trustee on the assurance and at the instance of defendant No.3 Suresh Lamba (proforma respondent No.5), who is family member of plaintiffs. Defendant No.1 is son of maternal uncle of defendant No.3. Shanta Devi while executing sale deed dated 28.11.1977 regarding 88 kanals land including the suit land in favour of defendant No.1 did not receive a single paisa as sale consideration. Defendant No.1 Ramesh Kumar was only Benamidar. Mahender Kumar Chaudhary exchanged the suit land with plaintiffs by way of oral exchange in lieu of Rolls Royace Car owned by plaintiffs’ father. Since then, plaintiffs and their mother Mohini Chaudhary are owners in possession of the suit land. Shanta Devi died in the year 1993. Mahender Kumar Chaudhary died in the year 2001. Their son Kapil Chaudhary died on 9.9.2006 and defendants No.5 and 6 are his heirs being his son and widow respectively. The suit land has been released from surplus pool vide judgment dated 18.2.1999 passed by Special Collector, Haryana, Chandigarh. Defendant No.1 has further sold the suit land to defendant No.2 (appellant) who is son of defendant No.3 vide sale deed dated 12.4.2006. In the suit, the plaintiffs have challenged sale deed dated 28.11.1977 executed by Shanta Devi in favour of defendant No.1 and sale deed dated 12.4.2006 in favour of defendant No.2 and also consequential mutations. Several other reliefs have also been claimed in the suit. 3. Defendant No.2 moved application under Order 7 Rule 11 (d) of the Code of Civil Procedure alleging that suit being based on Benami transaction is hit by Section 4 of The Benami Transactions (Prohibition) Act, 1988 (in short ‘the Act’). 4. Several other reliefs have also been claimed in the suit. 3. Defendant No.2 moved application under Order 7 Rule 11 (d) of the Code of Civil Procedure alleging that suit being based on Benami transaction is hit by Section 4 of The Benami Transactions (Prohibition) Act, 1988 (in short ‘the Act’). 4. Plaintiffs opposed the said application by filing reply alleging that Section 4 of the Act does not apply because defendant No.1 held the suit land as trustee on behalf of Mahender Kumar Chaudhary and his wife Shanta Devi. 5. Learned Additional Civil Judge (Jr. Division), Hansi vide order dated 8.9.2007 allowed the application filed by defendant No.2 and rejected the plaint, however, appeal against said order preferred by plaintiffs has been allowed by learned Additional District Judge, Hisar vide impugned judgment dated 2.9.2009 which is under challenge in the second appeal at the hands of defendant No.2. 6. I have heard learned counsel for the parties and perused the case filed carefully. 7. Learned counsel for the appellant vehemently contended that the suit is barred by Section 4 of the Act and therefore, the plaint was rightly rejected by the trial Court and impugned judgment of lower Appellate Court is erroneous and unsustainable. 8. On the other hand, counsel for respondents No.1 and 2 claimed benefit of Section 4(3) (b) of the Act alleging that defendant No.1 held the suit land as trustee of Mahender Kumar Chaudhary and his wife Shanta Devi. It was also contended that sale deeds dated 28.11.1977 and 12.4.2006 have been challenged on the other grounds as well in addition to the ground of Benami transaction and therefore, mixed question of law and facts are required to be adjudicated and impugned judgment of lower Appellate Court, therefore, does not suffer from any infirmity. 9. I have carefully considered the rival contentions. 10. At the outset, it is to be noticed that inspite of repeated enquiry, counsel for respondents No.1 and 2/plaintiffs could not refer to any other ground to challenge the sale deed dated 28.11.1977 except the ground of being Benami transaction. 9. I have carefully considered the rival contentions. 10. At the outset, it is to be noticed that inspite of repeated enquiry, counsel for respondents No.1 and 2/plaintiffs could not refer to any other ground to challenge the sale deed dated 28.11.1977 except the ground of being Benami transaction. Consequently, no mixed question of law and fact is required to be adjudicated to decide the application of defendant No.2 filed under Order 7 Rule 11 (d) of the Code of Civil Procedure and the said application can be decided only on the basis of pure question of law by broadly taking the plaint averments at face value. 11. Before proceeding further, Section 4(3) of the Act is reproduced hereunder: “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 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.” 12. It is the case of the plaintiffs themselves that sale deed dated 28.11.1977 executed by Shanta Devi in favour of defendant No.1 was benami transaction. Consequently the suit being based on Benami transaction is barred by Section 4 (1) of the Act. It is the plea of the plaintiffs that defendant No.1 held the suit land as Benami. It is the case of the plaintiffs themselves that sale deed dated 28.11.1977 executed by Shanta Devi in favour of defendant No.1 was benami transaction. Consequently the suit being based on Benami transaction is barred by Section 4 (1) of the Act. It is the plea of the plaintiffs that defendant No.1 held the suit land as Benami. Consequently, there is no escape from the conclusion that no such suit to enforce right in respect of suit land allegedly held Benami would lie against Benamidar i.e. defendant No.1. 13. However, the question to be determined is as to whether plaintiffs are entitled to the benefit of exception mentioned in Section 4(3) (b) of the Act. Answer to this question is negative. Defendant No.1 could not hold the land as trustee for Mahender Kumar Chaudhary and his wife Shanta Devi. Plaintiff’s plea is that sale deed dated 28.11.1977 was executed by Shanta Devi in favour of defendant No.1 at the instance of defendant No.3. Consequently defendant No.1 was neither trustee of Mahender Kujmar Chaudhary or his wife nor defendant No.1 stood in fiduciary capacity qua Mahender Kumar Chaudhary or his wife. Moreover, neither Shanta Devi during her life time nor after her death, her husband Mahender Kumar Chaudhary nor their son Kapil Chaudhary ever challenged the sale deed dated 28.11.1977. The plaintiffs on the basis of oral exchange of the suit land in lieu of a car have challenged the sale deed dated 28.11.1977 as Benami transaction. However, defendant No.1 by no stretch of imagination can be said to be trustee of the plaintiffs and proforma defendant No.7 even taking the plaint averments at face value nor defendant No.1 stood in fiduciary capacity qua plaintiffs and proforma defendant No.7. In this view of the matter also, the plaintiffs cannot claim benefit of the exception carved out by Section 4(3)(b) of the Act. 14. In addition to the aforesaid, it would not be out of place to notice here that plaintiffs’ whole case is based on fraud allegedly committed by Mahender Kumar Chaudhary and his wife to take the suit land out of surplus pool by transfer thereof by Mahender Kumar Chaudhary in favour of his wife Shanta Devi and sale thereof by Shanta Devi in favour of defendnat No.1 vide impugned sale deed dated 28.11.1977. In view of the said averments also, the plaintiffs cannot succeed in the suit even taking the plaint averments at face value. 15. For the reasons aforesaid, I find that the suit is barred by Section 4 of the Act and therefore, the plaint was rightly rejected by the trial Court. Impugned judgment of lower Appellate Court is, therefore, erroneous and thus not sustainable. Even taking the plaint averments at face value, suit being barred by Section 4 of the Act, the question of adjudicating any question of fact would not arise. Accordingly, the instant second appeal is allowed. Impugned judgment of the lower Appellate Court is set aside. Order dated 8.9.2007 of the trial Court allowing the application filed by defendant No.2 rejecting the plaint is restored. --------------------