IMPORTANT POINT
The determination of ownership of the plaintiffs over the suit property is irrelevant at the stage of deciding an application under Order VII Rule 11.

JUDGMENT :

Kausik Chanda, J.

The petitioner challenges a judgment and order dated March 17, 2020, passed by the Additional District Judge, 1st Court at Siliguri, reversing an order dated May 27, 2014, passed by the learned Civil Judge (Junior Division), Siliguri in Title Suit No.147 of 2010, allowing an application under Order VII Rule 11 of the Civil Procedure Code, 1908 (‘the Code’, in short).

2. In this judgment, the parties have been referred to in terms of their status as described in the plaint.

3. The plaintiffs/opposite parties filed a suit for decree of khas possession after eviction of the defendant/petitioner from the suit premises and other consequential reliefs. In the said suit, the plaintiffs contended, inter alia, that they are the legal heirs of Dinesh Chandra Poddar, since deceased. The said Dinesh Chandra Poddar purchased a plot of land from Khitish Chandra Dey in the names of his two minor brothers, Dhiren Chandra Poddar and Radha Gobinda Poddar, and constructed a house on the said land. Dhiren and Radha Gobinda returned back to their parents in East Pakistan and started to reside there permanently. In the year 1970, during the war between Pakistan and Bangladesh, Dhiren was killed as a Mukti Jodhya, and the other brother Radha Gobinda Poddar, and the legal heirs of Dhiren became citizens of Bangladesh. Dinesh had been possessing the said suit land permanently with all its rights and interests since his purchase. The defendant came from Dhaka and requested Dinesh to permit him to reside on a portion of the vacant land measuring about 875 sq. ft. with one katcha shed against monthly rent of Rs.50/-. Dinesh used to grant receipts. The defendant failed to pay the monthly rent since February 1977 and became a defaulter. He also failed to pay maintenance charges and municipal taxes. The defendant had previously filed one suit for specific performance of the contract against Dinesh, Dhiren and Radha Gobinda alleging, inter alia, that Dhiren and Radha Gobinda had agreed to sell the suit premises to him after receiving an advance amount, which was dismissed on April 28, 2009. Dinesh died on August 23, 1997, and since then the plaintiffs have acquired the right, title, and possession over the entire property purchased by Dinesh. Being the legal heirs of the landlord, the plaintiffs are entitled to recover the possession of the land after evicting the defendant from the suit premises. The plaintiffs stated that they required the suit premises for their own occupation and business. The katcha structure was in dilapidated condition and the development of the suit premises was essential to make it habitual.

4. In connection with the said suit, the defendant filed an application under Order VII Rule 11 of the Code contending, inter alia, that the suit was barred under Section 4 of the Benami Transactions (Prohibition) Act, 1988, which was allowed by the learned Trial Judge by his order dated May 27, 2014.

5. The plaintiffs, thereafter, preferred an appeal before the Additional District Judge, 1st Court at Siliguri, who reversed the order of the Trial Court.

6. This revisional application has been filed by the defendant to assail the order dated March 17, 2020, passed by the learned Additional District Judge.

7. It has been submitted on behalf of the defendant that the interest of Dinesh in the suit property was limited one. Having purchased the suit property through a benami transaction, no title in respect of the suit property can be said to have devolved upon the plaintiffs as legal heirs of Dinesh. The plaintiffs are not the owners of the suit property. It has further been contended that neither the plaintiffs inducted the defendant as a tenant in the property nor did the defendant ever tender rent in favour of the plaintiffs. Thus, the plaintiffs are not the landlords of the defendant in view of Section 116 of the Indian Evidence Act, 1872. A tenant under Section 116 of the Indian Evidence Act, 1872, is not precluded from di