Judgment Date of Judgment :::: 18.8.17 Instant regular first appeal has been filed by the plaintiff /appellant under section 96 CPC against the order dated 23.9.2016 passed by learned Addl. District Judge, Fatehpur, District Sikar (the learned court below) in Civil Suit No. 126/2006, whereby the learned court below dismissed the application filed by the defendant/respondent No.2- Subhash Chand Soni under Order 7 Rule 11 CPC. Facts of the case are that the plaintiff/ appellant (the plaintiff for short) filed a suit for declaration and cancellation of the sale deed dated 24.7.2016 against the defendants/ respondents (the defendants for short) mentioning therein that the plaintiff and his father Babulal were having a shop on rent. Both- son and father were doing the business of a Tea and Water. Looking to advance old age of the father, the plaintiff alone was doing the said business on the shop. The erstwhile owner of the shop filed a suit for eviction against the father of the plaintiff and the eviction suit was decreed against his father upto Supreme Court. Finally compromise took place between the erstwhile owner and father of the plaintiff to sale the shop to the father. Since father of the plaintiff was not having money to purchase this shop, hence the plaintiff paid the entire sale consideration amount to the erstwhile owner. Some payment was done by him and the payment was done after borrowing money from the creditors and on the request of the father and in the honour of the father, the plaintiff became ready for execution of sale deed of this shop in the name of his father and accordingly the sale deed of this shop was executed in the name of his father but the plaintiff remained in possession of this shop. On 14.3.2002, father -Babulal executed a document in writing that this shop was purchased by his son Pawan Kumar from his own fund but the sale deed was executed in the name of Babulal. His son Pawan has all rights on this property. he is his legal representatives and his children would not claim any right in this property. Defendant No.2- Subhash Chand Soni was also tenant of the erstwhile owner. After purchase of this shop, the defendant No.2 became tenant of the plaintiff. He paid the rent to the plaintiff for sometime but lateron he did not pay the rent. His situation arose to file eviction suit against them but by using unlawful means, the defendant No.2 Subhash Chand Soni got the agreement to sale of this shop in his favour from the father of the plaintiff on 24.7.2006 and paid Rs. 21,000/- for the Ist Floor of the shop but the sale deed could not be executed in the interest of the plaintiff. Hence, the defendant No.2 filed a suit for specific performance in the Court of District Judge, Sikar and the same is pending and an injunction order was passed. Eight months back, the defendant No.2 forced the defendant No.1 Babulal to execute the sale deed of the property in his name. The plaintiff filed a suit for permanent injunction in the Court of learned Civil Judge (Sr. Division), Fatehpur, District Sikar (the learned trial court for short). The learned trial court passed an order of status quo but finally the application for temporary injunction was rejected, against which the plaintiff filed a Civil Misc. Appeal before the learned District Judge, Sikar. In the civil misc. appeal the learned District Judge, Sikar passed a stay order, intimation to this effect was given to the defendants on 19.7.2002 but in-spite of that the defendant No.2 got the registered sale deed executed in his favour from the defendant Babulal on 24.7.2006. Defendant No.2- Subhash Chand Soni filed written statement of denial mentioning therein that Likhawati (writing) dated 14.3.2002 is fabricated and not registered and the property in question was sold by the real owner to him and the plaintiff has no right to challenge the same. However, no objection was taken by the defendant No.2 that the suit is barred under section 4 of the Benami Transaction (Prohibition) Act, 1988 (the Act of 1988 for short). Evidence of the plaintiff was submitted by affidavits. After a lapse of nine years, during the pendency of the suit, the defendant No.2- Subhash Chand Soni submitted an application under Order 7 Rule 11 CPC for rejection of the plaint by referring section 4 of the Act of 1988. The learned court below allowed the application filed by the defendant No.2 under Order 7 Rule 11 CPC but rejected the plaint filed by the plaintiff for declaration and cancellation of sale deed vide order dated 23.9.2016. Plaintiff aggrieved and dissatisfied with the order dated 23.9.2016 passed by learned court below has preferred instant regular first appeal before this Court. Counsel for the defendant/appellant has submitted that the learned court below has seriously erred in rejecting the plaint on the application filed by the plaintiff/appellant under Order 7 Rule 11 CPC. Counsel submitted that the contents and statements made in the plaint clearly show that the suit filed by the plaintiff is not barred by any law. Simple plain case of the plaintiff in his plaint is that the property in question was purchased by him from his own funds in the name of his father and he is owner and the defendant No.2 forced his father to sale the property in question to him and it is the only Civil Court who is competent to hear and decide the suit. Counsel submitted that whether the title of the plaintiff regarding the property in question is a Benami or not, could be decided on evidence and it is a mixed question of law and fact that the purchase of property by the plaintiff in the name of his father is benami transaction or not. Counsel further submitted that Order 14(2) CPC provides that where issues both of law and of fact arise in the same suit and the Court is of the opinion that the case of any part thereof may be disposed of on an issue of law only, it may try that issue first. As such the learned court below could have framed this issue as a preliminary issue for decision of real controversy between the parties. Counsel has further submitted that in the written statement no such objection of Section 4 of the Act of 1988 has been taken and after nine years such objection is not tenable. Counsel has further submitted that in para No. 4 of the plaint it has been specifically pleaded that the defendant No.1- father of the plaintiff made declaration on 14.3.2002 on a stamp paper and admitted plaintiff as owner of the suit property. Counsel further submitted that while considering the application under Order 7 Rule 11 CPC only averments made in the plaint can only be considered. Plaintiff in support of the averments made in para 4 of the plaint, filed a Likhawati (writing) wherein the defendant- father of the plaintiff admitted his ownership and title to be treated as being part of the plaint as being the cause of action. The said writing gets corroborated by reference in the plaint and the ratio decided in the cases of Church of Christ Charitable Trust Vs. M/s. Poonniamman Educational Trust, 2012 DNJ (SC) 734 and Shana Devi (Smt.) & Ors. Vs. Smt. Arti Devi & Ors., 2013(4) DNJ (Raj.) 1611 is not applicable to the facts of the present case. Per-contra counsel appearing for the respondents defendants submitted that under Order 7 Rule 11 (d) CPC plaint can be rejected where the suit appears from the statement in the plaint to be barred by any law. Bare perusal of the suit and the averments reveal that the suit is barred by section 4 of the Act of 1988. Counsel further submitted that the trial court can exercise power under Order 7 Rule 11 CPC at any stage of the suit. The averments made in the plaint do not disclose a clear right or material (s) to sue. The learned trial court rightly exercised the power under Order 7 Rule 11 CPC. Counsel placed reliance on a Judgment delivered in the case of Shanta Devi (Smt.) & Ors. Vs. Smt. Arti Devi & Ors., 2013(4) DNJ (Raj.) 1611. I have heard submissions of both the learned counsel appearing for the respective parties and carefully scanned and scrutinized the entire material made available to me including the judgments referred to above. In view of Order 7 Rule 11 (a) & (d) CPC, the Court has to satisfy that the plaint discloses a cause of action and does not appear to be barred by any law. In the case in hand in paragraph 3 of the plaint it is alleged that the plaintiff paid the consideration amount and got the registry in the name of his father (defendant No.1) and prior to purchase of the shop, which was subject matter of suit, assisting his father in the business, the said property really belongs to the plaintiff in which the plaintiff is uninterruptedly running the business of tea and water (restaurant). Therefore, declaration in this regard may be issued in favour of the plaintiff that the suit property belongs to him. In the case of Shanta Devi (supra) in para No. 18, 19 and 20 of the Judgment delivered by the Coordinate Bench of this Court, Principal Seat at Jodhpur, it has been held as under:

19. Section 3 and 4 of the Benami Transaction (Prohibition) Act, 1988 are quoted below for ready reference: Section 3. Prohibition of benami transactions.-(1) No person shall enter into any benami transaction. (2) Nothing in sub-section (1) shall apply to- (a) the purchase of property by any person in the name of his wife or unmarried daughter and it shall be presumed, unless the contrary is proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter; (b) the securities held by a

(i) depository as registered owner under sub- section (1) of Section 10 of the Depositories Act, 1996.

(iii) participant as an agent of a depository. Explanation.-The expressions "depository" and "Participants" shall have the meanings respectively assigned to them in clauses (e) and (g) of sub- section (1) of Section 2 of the Depositories Act, 1996. (3) Whoever enters into any benami transaction shall be punishable with imprisonment for a term which may extend to three years or with fine or with both. (4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence under this section shall be non-cognizable and bailable. Section 4. Prohibition of the right to recover property held benami:-(1) No suit, claim or action to enforce and 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.

19. It is clear from the provisions of the Act and the legal position cited at the bar that no suit, claim or action to enforce any right in respect of property held Benami as defined in section 2(9) of the Act can be filed nor any such defence can be taken in such suit except when the case falls in exceptions provided in Section 4(3) of the Act. While Section 3(1) completely prohibits benami transactions, Section 3(2) carves out an exception only when the property in question is purchased in the name of wife or unmarried daughter and Section 3(3) of the Act provides for imprisonment upto 3 years and fine in such cases. Section 4 provides for a blanket ban to recover the property held in benami name except when the property is held by a coparcener in Hindu undivided family and the property is held for the benefit of the coparcener in the family or where the property in whose name the property is held is 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 fiduciary capacity.

20. This position of law being clear, the plaint averments in the present case seeking declaration in respect of suit property with a clear stipulation that the plaintiffs husband Suresh Kumar purchased the said property in the name of his brother only as Benamidar and Suresh Kumar only was the real owner of the suit property is clearly hit by Section 4 of the Act as it is not the case set up by the plaintiffs that the suit property is a HUF property and the same was purchased in the name of Anil Kumar as coparcener and the property is held for the benefit of coparceners in the family and therefore, the question of applying exceptions under Section 4(3) of the Act does not arise nor the plaintiffs have stated that the property is held by the trust or any other person standing in a fiduciary capacity and therefore both the exceptions of Section 4(3) of the Act do not apply in the present case. It would be relevant to reproduce para Nos. 2,3 and 4 of the plaint:- 2- यह कि विवादिन दुकान पहले वादी व वादी के पिता प्रतिवादी सं.

1 के पास पूर्व मालिक से किराये पर थी जब विवादित दुकान किराये पर थी उसी समय वादी भी अपने पिता के साथ दुकान पर बैठकर चाय पानी के व्यवसाय में सहायता करता रहता था तथा धीरे-धीरे प्रतिवादी सं. 1 वृद्ध होने की वजह से सारा काम वादी ही करने लगा तथा तब से लेकर आज तक वादी विवादित दुकान पर साधिकार निरन्तर निर्बाध रूप से काबिज होकर अपना चाय पानी का व्यवसाय करता आ रहा है। 3. यह कि विवादित दुकान के पूर्व मालिक ने विवादित दुकान को खाली करने का नोटिस देकर बेदखली का वाद दायर कर दिया जो उच्चतम न्यायालय तक चला जिसमें वादी के पिता हार गये। वाद अंतिम निर्णय होने पर पूर्व मालिक से राजीनामा होकर विवादित दुकान को पूर्व मालिक वादी को विक्रय करने की हा कर सौदा तय हो गया। चूंकि वादी के पिता के पास रूपये नहीं होने की वजह से वादी ने ही अपने पास से व कुछ अपने जान पहचान वालों से साहुकारी ब्याज पर रूपये उधार लेकर पूर्व मालिक को सौदे की सम्पूर्ण रााि आदा कर दी तथा विक्रय पत्र तेयार करते समय वादी के पिता ने कहा कि बेटा मेरे नाम से तूने केस लडा है लेकिन मेरी बात का सवाल है इसलिए विक्रय पत्र मेरे नाम करवा दो ऐसे में वादी ने सम्पूर्ण दुकान का विक्रय पत्र अपने पिता प्रतिवादी सं. 2 के नाम करवा दिया। जबकि क्रय की रााि वादी ने अदा की। जो रूपये वादी ने उधार लिये थे वह वादी ने उन्हें मय ब्याज वापस लौटा दिये। 4. यह कि वादी विवादित दुकान पर क्रय करने से पूर्व से आज तक लगातार निरन्तर निर्बाध रूप से चाय पानी का धन्धा करता आ रहा है। वादी के पिता प्रतिवादी सं. 1 वृद्ध हो जाने की वजह से विवादित दुकान क्रय करने से पूर्व ही आना लगभग बंदसा कर दिया था जो भी खर्चा उन पर होता है वादी लगातार देता आ रहा है तथा वादी द्वारा की गई सेवा भाव से व उनकी मृत्यु के उपरान्त उनके वारीसान में किसी प्रकार का कोई विवाद न हो उसके लिए उन्होंने वादी के पक्ष में लिखावट इस रूपये के स्टाम्प पेपर पर दिनांक 14.3.02 को लिखकर उपस्थित गवाहान के समक्ष नोटेरी से तस्दीक करवाकर वादी को दिया था कि सम्पूर्ण सम्पति विवादित दुकान पर सिर्फ इसी वादी का हक है मेरे अन्य वारीसान व सन्तान का भविष्य में इस सम्पति पर कोई हक नहीं होगा। इस कारण वादी विवादित दुकान को अपने नाम उद्घोषित करवाने का अधिकारी है। It is pertinent to note that the plaintiff has prayed for cancellation of sale-deed dated 24.07.2006 made by the defendant No.1-father of the plaintiff in favour of the defendant No.2 and further sought relief of declaration that the suit property to be declared in the name of the plaintiff. The prayer clause of the plaint reads as under: क कि वाद वादी विरूद्ध प्रतिवादीगण इस प्रकार डिक्री फरमाया जावे कि वाद पत्र की धारा 1 में अंकित व संलग्न नक्शे में ब अंक ABCD o EFGH से अंकित व लाल सुर्ख रंग से दर्शित दुकान का वादी का मालिक स्वामी घोषित किया जावे। ख कि प्रतिवादी सं. 1 द्वारा प्रतिवादी सं. 2 के पक्ष में प्रतिवादी सं. 3 के कार्यकाल में पंजीकृत विक्रय पत्र दिनांकित 24.7.06 को निरस्त फरमाया जावे। ग कि प्रतिवादी सं. 2 व 3 को मय नोकर चाकर एजेन्ट प्रतिनिधि को स्थाई निषेधाज्ञा से पाबन्द किया जावे कि वाद पत्र की धारा 1 में अंकित विवादित सम्पति के प्रथम मंजिल के तथाकथित विक्रय पत्र दिनांकित 24.7.06 की आड में विवादित सम्पदा को तोड फोड खुर्द बुर्द व बरबाद न करे न ही कच्ची पक्की लिखावट के जरिये अन्य किसी को स्थानान्तरण व अन्तरण करे, न ही कच्ची पक्की लिखावट के जरिये अन्य किसी के स्थानान्तरण व अन्तरण करे, न ही प्रतिवादी सं. 3 तथाकथित विक्रय पर दिनांकित 24.7.06 के आधार पर कोई दस्तावेज पंजीबद्ध करे। घ कि खर्चा मुकदमा वादी को प्रतिवादीगण से दिलवाया जावे व कोई न्यायोचित सहायता जो वादी न्यायहीत में पाने का अधिकारी है दिलवाई जावे। From the averments made in the plaint it is clear that plaintiff is seeking declaration in his name in respect of suit property with a clear stipulation that he purchased the said property from his own funds/ sources in the name of his father and his father was not real owner of the suit property. Section 4 of the Act of 1988 provides 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, shall lie by or on behalf of a person claiming to be the real owner of such property. It is not the case of the plaintiff that property in question was held by the defendant No.1- father, for joint benefit / joint ownership. The suit was clearly hit by section 4 of the Act of 1988 and the learned trial court rightly allowed the application under Order 7 Rule 11 CPC. Consequently, the present appeal deserves to be dismissed and is accordingly dismissed and the order dated 23.9.2016 passed by learned Addl. District Judge, Fatehpur, District Sikar in Civil Suit No. 126/2006 is hereby affirmed. Parties to bear their own costs. (Govardhan Bardhar) J. Sharma NK