The claim of benami was barred under Section 4(2) of the Benami Transaction (Prohibition) Act, 1988, as the written statement was filed after the Act came into force and the defendant admitted that he purchased the property in the name of his wife for his and his family's benefit.

Indrajit Chatterjee, J.

This is a battle between a divorced couple. The wife filed Title Suit No. 134 of 1987 before the learned Assistant District Judge, 1st Court, South 24 Parganas at Alipore within the district of 24-Parganas (South) with a prayer for eviction and recovery of khas possession The specific case of the plaintiff as made out in the plaint so far as it is relevant for the purpose of adjudication of this second appeal may be summarised thus:-

2. That the marriage between the plaintiff and the defendant took place on 30th January, 1964. By two registered deeds of conveyance - both dated 16-01-1979, one executed by Muralidhar Jindal as vendor and the other executed by Smt. Kamala Jindal as vendor the plaintiff purchased two undivided one half share of flat no. 5, 4th floor, "Jindal house" at premises no. 8A, Alipore Road, P.S. Alipore, Kolkata and thus, the plaintiff became the absolute owner in respect of that portion of the property including the common area, like the stair case etc.

3. The consideration money was Rs.1,75,000/-. It is also the positive case of the plaintiff/appellant that she purchased the property from her own fund. Thereafter, the marriage between the parties was dissolved as per a decree as passed in Petition No. 101 of 1984 by an order dated 26th September, 1984 as passed by the learned Additional District Judge, Delhi.

4. Thereafter, the plaintiff requested the defendant to vacate the suit premises terminating the permissive possession but the defendant did not comply with the said request. The said Title Suit was filed as such treating the defendant as a trespasser praying for eviction and recovery of khas possession. The defendant contested the suit by filing written statement before the learned trial court, admitting the marriage but it was the specific case of the defendant that the said property was purchased by the defendant himself from his own money and the money contributed by his companies and he is in possession of the suit property by paying incidental charges like municipal taxes, maintenance charges, common electricity charges etc. Thus, it was his claim that he is must in permissive possession. He further claimed that the property was purchased in the name of the plaintiff but not for her benefit but for the benefit of the defendant and his family members. It may be noted that the written statement was filed on 18th September, 1989.

5. It was the further case of the defendant that the plaintiff shifted to U.K. and has been residing there. The defendant has denied that she is temporarily residing there (United Kingdom). It is also the specific case of the defendant that the plaintiff is not residing in the suit property and he being the absolute owner of the property is in exclusive possession of the same and as such, there is no question of passing any decree of eviction or for recovery of khas possession.

6. On appreciation of evidence both oral and documentary learned trial court was pleased to dismiss the suit. One Title Appeal No. 322 of 2000 was preferred by the plaintiff which was heard by the learned Additional District Judge, 3rd Court, Alipore and vide judgment and decree dated 13-06-2003 the learned First Appellate Court was pleased to remand back the suit for fresh trial. The said order was assailed before this court in F.M.A. 1739 of 2003 and this court was pleased to set aside the order of the learned First Appellate Court and directed the said appellate court to hear out the appeal. Learned First Appellate Court as per that order, heard the appeal and the appeal was dismissed as per judgment and decree dated 20-9-2007.

7. This second appeal has been preferred as against that the judgment and decree.

8. The Division Bench formulated two points for consideration of this court -

1. Whether the Learned Trial Courts below committed substantial error of law in arriving at the finding of Benami ignoring the point that the husband could not take the plea of Benami in t