Oral Judgment:

This appeal is preferred by the original plaintiffs who lost in the first appellate Court. The facts giving rise to the appeal are as follows:

Plaintiffs and defendants mutually agreed to purchase field Survey No. 93/3 of village Lohara district Yavatmal from one Sonabai. Each of the plaintiffs and defendants contributed a sum of Rs.4546/- towards the consideration. The sale deed was however obtained in the name of defendants 1 to 5. In order to evidence this arrangement an agreement was executed on 15.04.1982 between plaintiffs and defendants. It was agreed that each of the plaintiffs and defendants i.e. 11 persons would have equal share in the said field. It was agreed that the suit field should thereafter be converted to non agricultural use. It was also agreed that after the said field is converted to non agricultural use, all the plots will be equally distributed among the plaintiffs and defendants. Accordingly the said field was converted into a non agricultural land. Another agreement was executed on 07.05.1990 under which it was agreed that each of the plaintiffs would be entitled to get three plots out of the said layout and the remaining three plots would be sold and a piece of one acre of land was also agreed to be sold. It was also agreed that the consideration obtained from sale of one acre of land would be distributed equally amongst the plaintiffs and defendants. Defendants also got executed a letter of consent from plaintiffs on 04.05.1990 to that effect. Accordingly the plaintiffs were paid Rs. 8484/- towards the consideration of sell of one acre of land. The plaintiffs called upon the defendant No.1 to execute the sale deed in respect of plot Nos. 24 to 31 and 43 in favour of plaintiffs. Defendants failed. Hence the suit.

2. Defendants 1 to 8 filed their Written Statement which is infact a very cryptic written statement. They have denied all adverse allegations. The defendant No.1 admits receipt of notice from plaintiff dated 13.05.1991. According to defendants the plaintiffs failed to pay revenue tax which was payable and therefore the sale deed could not be executed. It was next contention of the defendants that the suit for injunction as filed by the plaintiffs is not maintainable and plaintiffs should have claimed specific performance of contract.

3. Learned Judge of the trial Court found that plaintiffs were entitled to execution of the sale deed in their favour and he directed the defendants to do so. Feeling aggrieved thereby defendants preferred an appeal before the District Judge. Learned District Judge found that suit was not maintainable on two counts. First, that the transaction in suit was a benami transaction and two, the plaintiffs should have claimed specific performance instead of an injunction. Holding so he allowed the appeal and dismissed the suit.

4. Appeal was admitted initially on the following substantial question of law:

Whether the appellate Court could ignore the admission of defendant No.1 in letter dated 13.05.1991 and also in the Written Statement about the ownership of the plaintiffs of the plots?

However after hearing the parties substantial questions of law were reformulated as follows:

1. Whether the suit is hit by provisions of Section 41(h) of the Specific Relief Act inasmuch as the plaintiffs ought to have claimed specific performance of contract?

2. Was the first appellate Court justified in holding that suit was hit by the provisions of Benami Transaction (Prohibition Act 1988)?

5. I have heard the learned counsel for the appellants and the respondents.

6. Learned Judge of the first appellate Court has set aside the decree mainly on the above grounds. He finds that suit for specific performance ought to have been filed instead of one for mandatory injunction. The prayer clause in the plaint reads as follows:

“PRAYER: It is therefore, most humbly prayed that, this Hon’ble Court may graciously be pleased to pass a decree of mandatory injunct