ORDER

I have already heard the learned counsel for the petitioner as well as learned counsel for opposite party no.21.

2. Opposite party no.1/plaintiff did not appear, despite notice being served upon him.

3. Being aggrieved by the order dated 30.10.2021 passed by the Sub-Judge-I, Kishanganj in Title Suit No. 19 of 2007, whereby the application filed by the petitioner under Order VII, Rule 11(d) of the Code of Civil Procedure (hereinafter to be referred to as ‘the Code’), was rejected by the court below.

4. The petitioner/defendant filed a petition dated 12.07.2019 under Order VII, Rule 11(d) of the Code, mentioning therein that the suit filed by the opposite party no.1/plaintiff is barred under Section 4(1) of the Prohibition of Benami Property Transactions Act, 1988 (hereinafter to be referred to as ‘the Act 1988’), as such, the plaint should be rejected under the above-mentioned provision of ‘the Code’. The learned court below rejected the petition filed by the petitioner on the following two grounds:—

(1) Already similar petition filed by other defendants was rejected, vide order dated 28.10.2016.

(2) Section 4(1) of the Act 1988 is prospective and the sale deed, which is said to be a benami transactions is prior to coming into force of the said Act 1988.

5. The plaintiff’s case, in brief, is that the father of the plaintiff and defendant no.5 Late Vibhuti Narayan Rai and husband of defendant no.1 and father of defendant nos. 2 to 7, Late Vishwanath Singh were friends and they were resident of Uttar Pradesh. They earned jointly 137.79 acres of land in village Bhatgaon (Galgalia). In survey khatiyan, the land appertaining to khata no. 425 mentioned in Schedule-I of the plaint was recorded in the name of Late Vishwanath Singh and other lands of Schedule-I appertaining to khata nos.426 to 435 were jointly recorded in the name of Late Vishwanath Singh and Vibhuti Narayan Rai. In order to save the land from ceiling proceeding, Late Vishwanath Singh persuaded the father of the plaintiff to execute a sale deed of khata no.435 in favour of Jai Narayan Rai and also a sale deed appertaining to khata nos. 433 and 434 in favour of Ram Awadh Singh. The father of the plaintiff executed a sale deed in favour of Jai Narayan Rai (younger brother of father of the plaintiff) in respect to khata no.435 dated 18.04.1963. This dead was without consideration money and it was a ‘farzi transaction’ and second sale deed was executed in favour of Ram Awadh Singh, the younger brother of Late Vishwanath Singh. This kewala was also a farzi kewala and without consideration money. These two sale deeds were executed only to save the lands from the operation of the Land Ceiling Act. Amongst other reliefs, the relief of title as well as for declaration of those sale deeds as void was claimed. The relief of partition was also claimed.

6. The learned counsel for the petitioner submitted that the plaintiff himself admitted that those two sale deeds were benami transactions, and as per the provision of Section 4(1) of the Act 1988, the suit filed by the plaintiff is barred and if a suit is barred under any provision of law, the plaint shall be rejected as per the provision of Order VII, Rule 11(d) of the Code.

7. Section 4(1) of Act 1988 reads as under:—

4. 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.”

8. From bare perusal of the said Section, it transpires that the person claimed to be the real owner of a property of benami transaction cannot file a suit to enforce any right in respect of that property. This provision clearly bars the suit and the learned trial court committed illegality in rejecting the petition filed by the petitioner/defendant. The learned court below rejected the petition on two ground