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Madhya Pradesh High Court · body

2012 DIGILAW 450 (MP)

Anand Kumar v. Vijay Kumar

2012-04-26

K.K.TRIVEDI

body2012
ORDER 1. This revision is directed against the order dated 9.9.2010 passed in Civil Suit No.76-A/2010, by which the Second Civil Judge Class II, Gadarwara, District Narsinghpur rejected the application of the petitioners-defendants No.1 and 2 under Order 7 rule 11 of the Code of Civil Procedure. 2. Brief facts giving rise to filing of this revision are that the respondent No.1 filed the suit against the petitioners and respondent No.2 seeking declaration of title and permanent injunction alleging that way back the respondent No.1 has purchased the land in suit benami in the name of his mother. It is contended that the said sale-deed was executed on 18.7.1979. It is further contended that the said land was never purchased from the property of joint Hindu family. Though, in the plaint description of the genealogy of family was given but the claim was made that on payment of amount of consideration by the respondent No.1 sale-deed was got executed. It is contended that since the respondent No.1-plaintiff was honestly believing the defendants-petitioners herein and the respondent No.2 but fraudulently they got the Will executed from the mother and got their names recorded over the disputed land. Since such an action was taken by petitioners and respondent No.2, when respondent No.1 came to know about such a fact, the suit was required to be filed. The reliefs claimed in the suit were that, it be declared that the land in dispute was purchased by the registered sale-deed, dated 18.7.1979 by the respondent No.1 benami in the name of his mother and in fact he was the original owner of the lande in suit. The other relief claimed was grant of permanent injunction against the petitioners and respondent No.2 restraining them to interfere in peaceful possession of respondent No.1-plaintiff on the suit land. 3. The written statement was filed by the petitioner No.2 categorically denying such allegations and stating that the respondent No.1 was not entitled to any such decree as claimed. After filing of the written statement an application under Order 7 rule 11(d) of CPC was filed by the petitioners saying that the suit as framed by the respondent No.1 was not maintainable and the plaint was liable to be rejected as the same is barred under the provisions of the Benami Transactions (Prohibition) Act, 1988 (hereinafter referred to as ‘Act’). The trial Court heard the arguments of learned counsel for the parties and rejected the application of the petitioners, therefore, this revision is required to be filed. 4. It is vehemently contended by learned counsel for the petitioners that a bare perusal of provisions of section 4 of the Act makes it clear that the suit as filed by respondent No.1, for the relief aforesaid, was prohibited under the law made by the Parliament. It is contended that if it was mentioned in the plaint that the benami transaction had taken place even prior to coming into force of the Act, the same would be hit by provisions of section 4 of the Act. It is thus, contended that the suit as filed by the respondent No.1 was hit by sub-section (1) of section 4 of the Act and the same was not maintainable. The plaint was liable to be rejected. However, this particular aspect has not been considered by the Court below and the application filed by the petitioners has wrongly been rejected. It is contended that in such circumstances, the order impugned is bad in law and is liable to be set aside. It is contended that the suit as filed by the respondent No.1 is liable to be dismissed. 5. Per contra, it is contended by learned counsel appearing for the respondent No.1 that the entire plaint is required to be seen. The conduct of the parties are also to be seen. Since the written sttement was filed, such an objection was taken in the written statement, only after framing of an issue, recording of evidence, the suit could have been decided. This being the situation, it cannot have been said that the suit as framed by respondent No.1 was not maintainable and thus the application of the petitioners was rightly rejected. It is also contended that the Act was made in the year 1988, transaction had taken place in the year 1979 and since the transaction was prior to coming into force of the Act, it cannot be said that the bar as prescribed under sub-section (1) of section 4 of the Act would be applicable. It is contended that the Act itself is not made with retrospective effect. Thus, it is contended that there is no force in the revision petition and the same deserves to be dismissed. 6. It is contended that the Act itself is not made with retrospective effect. Thus, it is contended that there is no force in the revision petition and the same deserves to be dismissed. 6. Heard learned counsel for the parties and perused the record. 7. Undisputedly, the Act was enacted in the year 1988 but the bar was created under sub-section (1) of section 4 of the Act that no claim would be made on the basis of any benami transaction. The bar is to file a suit or to make a claim and not that a particular transaction is benami or not. If a suit is filed after coming into force of the Act, claiming any right, title or interest on the basis of any benami transaction, whether it was done prior to coming into force of the Act of after coming into force of the Act, would be barred under sub-section (1) of section 4 of the Act. For proper appreciation, the provision of sub-section (1) of section 4 of the Act is reproduced : “(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 personal lie by or on behalf of person claiming to be the real owner of such property.” 8. This particular aspect has been considered by the Courts on various occasions. This particular aspect that the bar would be applicable in the suits which were required to be filed after coming into force of the Act has been considered by the apex Court in the case of Duvuru Jaya Mohana Reddy v. Alluru Nagi Reddy [ AIR 1994 SC 1647 ]. Further, it is considered bythe apex Court that if a claim was pending prior to coming into force of the Act, the same would not be barred under the provisions of section 4 of the Act. Please refer Prabodh Chandra Ghosh v. Urmila Dassi [ AIR 2000 SC 2534 ]. In view of the pronounciation of these laws by the apex Court, it is clear tht the bar is only with respect to filing of suit or making of a claim in defence only after coming into force of the Act and not in respect of the claim, which are made prior to coming into force of the Act. In view of the pronounciation of these laws by the apex Court, it is clear tht the bar is only with respect to filing of suit or making of a claim in defence only after coming into force of the Act and not in respect of the claim, which are made prior to coming into force of the Act. It is also abundantly clear from this tht, if a transaction is said to be done prior to coming into force of the Act but the claim is made after coming into force of the Act, based on such a transaction, the bar prescribed under the Act would be applicable. 9. In light of this, if it is considered whether the suit as framed by respondent No.1 was hit by sub-section (1) of section 4 of the Act or not, it is to be seen as to how the claim was made by respondent No.1. As far as the averments made in paras 1 to 4 of the plaint are concerned they are with respect to the family of the respondents. In para 6, the respondent No.1 has caategorically contended that he being less literate was not in a position to obtain an employment and, therefore, he started taking the lands on Shikmi for the purposes of making livelihood. It is contended by him that he raised the money by such agricultural work. In paras 7, 8 and 9 he categorically contended that out of funds raised by him he purchased the land benami in the name of his mother on 18.7.1979. Thus, it was the claim set forth by the respondent No.1 that the land was benami purchased by him the name of his mother and, therefore, his mother was having no title over the land in dispute and was not competent to execute the Will in favour of any body. The prayer made in para 17 of the plaint is simple that such disputed land has been purchased benami by the respondent No.1 plaintiff on 18.7.1979 and, therefore, he be declared owner of the said land and it be declared that his mother was having no right to execute the Will in favour of anybody. If these pleading and the reliefs are compared, it will be squarely clear that the respondent No.1 plaintiff was claiming title on the basis of benami transaction said to have taken place on 18.7.1979. If these pleading and the reliefs are compared, it will be squarely clear that the respondent No.1 plaintiff was claiming title on the basis of benami transaction said to have taken place on 18.7.1979. This being so, the prohibition under the Act is squarely applicable and such a plaint was hit by Order 7 rule 11(d) of CPC. This being so, the Court below was not right in rejecting the application of the petitioners. 10. Resultantly, the revision is allowed. The order impugned is set aside. The application filed by the petitioners under Order 7 rule 11(d) of CPC is allowed.The suit filed by the respondent No.1 plaintiff is dismissed as barred under section 4(1) of the Benami transactions (Prohibition) Act, 1988. 11. In the facts and circumstances of the case, there shall be no order as to costs.