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2013 DIGILAW 425 (PAT)

Ram Shankar Jha v. Shanti Devi

2013-03-22

JYOTI SARAN

body2013
ORAL JUDGMENT This civil revision application is directed against the order dated 02.04.2007 passed by the learned Sub-Judge-II, Benipur in Title Suit No. 46 of 2001/13 of 2005 whereby the learned court below has rejected the objection raised by the petitioner as regarding the maintainability of the suit in the light of the provision underlying section 4 of the Benami Transactions (Prohibition) Act, 1988 (hereinafter referred to as the Act). Though served and having appeared through counsel, there is no representation on behalf of the plaintiff-opposite parties. The suit in question has been filed by the plaintiffs-opposite parties for declaration of their title with respect to suit land and for confirmation of their possession. The plaintiffs have also sought for permanent injunction restraining the defendant-petitioners from changing the nature of the suit lands. It is not in contest that the suit property was purchased by the father of the plaintiff namely late Gulab Narayan Jha in the name of the father of the defendant-petitioners namely late Satya Narayan Jha under deed dated 20.09.1958. The veracity of the deed was never put to question by the late Gulab Narayan Jha stated to be real owner of the property as against the ostensible owner namely, Satya Narayan Jha, rather after a lapse of almost forty three years, the legal heirs of Gulab Narayan Jha have instituted the suit in question seeking a declaration of title and confirmation of possession over the said property. An objection was raised by the defendant-petitioners herein under the provisions of order 14 Rule 2 of the Code of Civil procedure raising issues as to the maintainability of the suit in view of the bar provided under section 4 of the Act. The objection has been rejected by the court below by the order impugned and hence this application. Mr. Ganesh Chandra Thakur, learned counsel for the petitioners with reference to the statement made in paragraph 14 of the plaint has stated that the plaintiffs have in no uncertain terms admitted that the purchase has been made through a registered deed no. 10585 dated 20.09.1958 executed by Rajendra Singh the vendor in favour of Satya Narayan Jha the father of the defendants. It is further stated by Mr. 10585 dated 20.09.1958 executed by Rajendra Singh the vendor in favour of Satya Narayan Jha the father of the defendants. It is further stated by Mr. Thakur that since after the execution of the sale deed in 1958, no claim was set up by either the father of the plaintiffs or the plaintiffs for recovery of the property in question thus after the enforcement of the Act, the right if any, stands extinguished . Learned counsel for the petitioners in support of his submission has relied upon the following judgments of the Supreme Court namely: (1) A.I.R. 1996 SC 238 : (1995) 2 SCC 630 (R. Rajagopal Reddy and others V Padmini Chandrasekharan) (2) (2011) 3 SCC 556 (Samitttri Devi and another V. Sampuran Singh and another). I have already observed that despite service on the plaintiff, who have appeared through counsel, there is no representation and thus there is no contest to the submissions made by the learned counsel for the petitioner. The plea of the defendants has been rejected on two grounds; firstly that the defendant petitioners were not in possession of the deed in question and secondly that the transaction having taken place prior to the enforcement of the Act, the bar would not be applicable. I have heard learned counsel and I have perused the materials on record. No doubt if the defendant petitioners rely upon the deed dated 20.09.1958 for claiming a right title and interest over the suit property, they should have been in possession of the same. A plea however has been taken by the defendant petitioners about the deed getting lost. Even for the moment if it is assumed that the defendants were not in possession of the sale deed dated 20.09.1958 but their claim against the suit property has to be considered in the light of the admission made by the plaintiffs in the plaint itself. It is not in contest that a reference with regard to the deed being executed in favour of the father of the defendant petitioners finds mention in the plaint itself. After this admission by the plaintiffs, the plaintiffs have to satisfy as to why they have remained silent for all the 43 years and never chose to exercise right for recovery of possession. After this admission by the plaintiffs, the plaintiffs have to satisfy as to why they have remained silent for all the 43 years and never chose to exercise right for recovery of possession. In so far as the rejection of the objection of the petitioner on the ground of the transaction taking place prior to the enforcement of the Act is concerned, the view expressed by the learned trial court is contrary to the statutory provision as interpreted by the Apex Court in the judgment so relied upon by the learned counsel for the petitioners. The judgment passed in the case of R. Rajagopal Reddy (supra) was followed in a recent judgment of the Supreme Court reported in (2011) 3 SCC 556 . Paragraph 12 of the judgment rendered in the case of R. Rajagopal Reddy (supra) fully supports the case of the petitioners and the relevant portion is being reproduced herein below: “Before we deal with these six considerations which weighed with the Division Bench for taking view that Section 4 will apply retrospectively in the sense that it will get telescoped into all pending proceedings, howsoever earlier they might have been filed, if they were pending at different stages in the hierarchy of the proceedings even up to this Court, when section 4 came into operation it would be apposite to recapitulate the salient feature of the Act. As seen earlier, the preamble of the Act itself states that it is an act to prohibit benami transactions and the right to recover property held benami, for matters connected therewith or incidental thereto. Thus it was enacted to efface the then existing rights of the real owners of properties held by others benami. Such an act was not given any retrospective effect by the legislature. Even when we come to section 4, it is easy to visualize that subsection (1) of section 4, states 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 shall lie by or on behalf of a person claiming to be the real owner of such property. As per section 4(1) no such suit shall thenceforth lie to recovery the possession of the property held benami by the defendant. As per section 4(1) no such suit shall thenceforth lie to recovery the possession of the property held benami by the defendant. Plaintiff’s right to that effect is sought to be taken away and any suit to enforce such a right after coming into operation of section 4(1) that is 19th May, 1988 shall not lie. The legislature in its wisdom has nowhere provided in section 4(1) that no such suit, claim or action pending on the date when section 4 came into force shall not be proceeded with and shall stand abated. On the contrary, clear legislative intention is seen from the word’s “no such claim, suit or action shall lie”, meaning thereby no such suit, claim or action shall be permitted to be filed or entertained or admitted to the portals of any court for seeking such a relief after coming into force of section 4(1) . .. …. ….. …. … ….. …. ….. … … …. …. It is, however, true as held by the Division Bench that on the express language of section 4(1) any right inhering in the real owner in respect of any property held benami would get effaced once section 4(1) operated, even if such transaction had been entered into prior to the coming into operation of section 4(1), and henceafter section 4(1) applied no suit can lie in respect to such a past benami transaction. To that extent the section may be retroactive. …… ………. ……….. …… ………. ………..” (Emphasis is mine) In view of the position so clarified under the Supreme Court judgment there cannot be two opinions on the issue raised by the petitioners. Since there is no finding by the trial court on this issue, in the circumstances there can be no other conclusion but to set aside the impugned order dated 2.4.2007 passed by the trial court. In consequence, this application is allowed. The issue of maintainability of the suit as raised by the defendant-petitioners is remitted to the trial court for consideration afresh and for adjudication and disposal in accordance with law in the light of the legal position, after affording reasonable opportunity of hearing to the contesting parties and permitting them to lead evidence in support of their respective claims. The issue of maintainability of the suit as raised by the defendant-petitioners is remitted to the trial court for consideration afresh and for adjudication and disposal in accordance with law in the light of the legal position, after affording reasonable opportunity of hearing to the contesting parties and permitting them to lead evidence in support of their respective claims. Once having adjudicated on this issue, if the trial court yet finds the suit maintainable, it shall proceed to adjudicate on the other issues arising in the suit, in accordance with law. No costs.