The prohibition against suits concerning benami transactions under Section 4(1) of the Benami Transactions Act is applicable, and such provisions must be evaluated within the context of the law's enactment without retrospective application.

JUDGMENT :

RAKESH MOHAN PANDEY, J.

1. The appellants/plaintiffs have preferred this first appeal under Section 96 of CPC challenging the order passed by learned District Judge, Balod, District Balod (C.G.) in Civil Suit No. 4A/2013 dated 26.2.2015, whereby the plaint was rejected applying provisions under Order 7 Rule 11(d) of CPC.

2. Facts of the present case are that the original plaintiff namely Umashankar Purohit filed a civil suit for declaration of title and permanent injunction pertaining to Survey numbers 141, 145 and 200 total ad-measuring 15.05 acres situated at Village – Limora, Tehsil – Gunderdehi, District – Balod (C.G.). The original plaintiff further sought declaration to the effect that sale-deed executed by respondent no. 1 in favor of the respondent no. 2 to 4 dated 31.10.2007 be declared null and void inter alia on the ground that late Kasturichand Purohit, who was father of original plaintiff had purchased the suit property from his own income through registered sale-deed dated 27.2.1974 in the name of minor Chandrashekhar Purohit (defendant No. 1) on account of love and affection. In that sale-deed, name of defendant No. 1 was entered as purchaser and name of Kasturchand Purohit as guardian. The appellants herein are the legal representatives of original plaintiff Umashankar Purohit.

3. Defendants No. 2 to 4 filed written statement and denied plaint averments. A specific plea was taken by defendants No. 2 to 4 with regard to benami transaction and it was also pleaded that the suit is hit by the provisions of Section 4(1) of The Benami Transactions (Prohibition) Act, 1988 [hereinafter to be referred as “The Act, 1988”]. Learned Trial Court framed preliminary issue with regard to maintainability of civil suit in light of Section 4(1) of The Act, 1988. Learned trial Court considered the pleadings made in the plaint and came to the conclusion that suit property was not a coparcenary property and suit is hit by the provisions of Section 4(1) of The Act, 1988 and consequently, rejected the plaint.

4. Mr. T.K. Jha, learned counsel appearing for the appellants submits that learned Trial Court committed error of law while rejecting the plaint and the Trial Court ought to have recorded the evidence of the parties after framing issues and suit should have been tried. He further submits that whether the suit property was benami or not, it could not have been decided by the Trial Court at preliminary stage. He contends that suit property was purchased in the name of defendant No. 1 in the year 1974 before enactment of The Act, 1988, therefore Trial Court committed error of law by applying the provisions of The Act, 1988 retrospectively. He has placed reliance on the judgment rendered by the Hon’ble Supreme Court in the matter of Union of India & Another Vs. M/s Ganpati Dealcom Pvt. Ltd. passed in Civil Appeal No. 5783 of 2022 wherein it is held that the forfeiture provision under Section 5 of the amended 2016 Act being punitive in nature, can only be applied prospectively and not retroactively. He further contends that Trial Court ought to have considered the averments made in the plaint alone but in the instant case, Trial Court has considered the written statement filed by the defendants No. 2 to 4 and came to conclusion that suit filed by the plaintiff was hit by the provisions of Section 4(1) of The Act, 1988. He prays to set aside the order impugned.

5. On the other hand, Mr. B.P. Sharma, learned counsel appearing for the respondents No. 2 to 4 would oppose. He submits that according to the provisions of Section 4(1) of The Act, 1988, no suit, claim or action to enforce any right in respect of any property held