MADAN B. LOKUR, J.

( 1 ) THE Plaintiffs are husband and wife. Plaintiff No. 2 has since passed away and her legal representative, Plaintiff No. 1, is now pursuing the suit as the sole Plaintiff.

( 2 ) IN the plaint, as originally filed, the prayer was for a decree of declaration in favour of the Plaintiffs and against the sole Defendant (Reeta wahi niece of Plaintiff No. 1) that Plaintiff No. 1 is the owner of property bearing No. 13, Kautilya Marg, New Delhi (the suit property ). The other two substantive prayers were for a decree of permanent injunction restraining the defendant from leasing out portions of the property belonging to the Plaintiffs or from otherwise alienating the property or dispossessing the Plaintiffs from the suit property and for a decree seeking cancellation of sale deeds dated 16th may, 1997, 19th May, 1997 and 30th June, 1997.

( 3 ) THE Plaintiffs subsequently amended the plaint and two other Defendants were added, namely, Sajit Bakshi (Defendant No. 2) who, it is alleged, in connivance with Reeta Wahi (Defendant No. 1) attempted to take forcible possession of the suit property. Punjab National Bank (Defendant No. 3) was also added as a party because a company called Vaishali International Management and resources Ltd. (VIMAR) of which the Plaintiff is a major shareholder had mortgaged the suit property with it. The title deeds of the suit property are said to be lying with Defendant No. 3 and it is alleged that Defendant No. 1 is trying to obtain the title deeds from Defendant No. 3 so as to induct Defendant no. 2 into the suit property.

( 4 ) IN view of the changed circumstances, two additional prayers were also made by the Plaintiff, namely, for a permanent injunction restraining Defendant no. 3 from releasing the title deeds of the suit property and a decree of possession in favour of the Plaintiff and against Defendant No. 2.

( 5 ) DEFENDANT No. 1 has filed a detailed written statement and has also made a counter claim against the Plaintiff. In the counter claim, it is prayed that a declaration be given that Defendant No. 1 owns the suit property absolutely and for a mandatory injunction directing the Plaintiff to remove himself from the suit property and a prohibitory injunction restraining him from entering the suit property.

( 6 ) AFTER pleadings were complete, a large number of issues were framed on 7th September, 2005 and Issues No. 1 and 13 read as follows:"1. Whether the suit is barred by the provisions of Benami Transaction (Prohibition) Act, 1986, as alleged in the written statement" If so, to what effect" 13. Whether the suit of the Plaintiff is barred under the provisions of benami Transactions (Prohibition) Act, 1988 and the plaint is liable to be rejected under Order 7 Rule 11 of the CPC""

( 7 ) ON 7th September, 2005, it was directed that Issue No. 1 shall be treated as a preliminary issue since learned counsel appearing for Defendant no. 1 stated that he wished to argue that issue on the strength of the provisions of Order VII Rule 11 of the CPC and for that purpose and to that extent, the averments made in the plaint may be treated to be prima facie correct.

( 8 ) ON 17th April, 2006 when the matter was listed for arguments, it was agreed between learned counsel for the parties that both these issues are effectively the same and, accordingly, Issue No. 13 may be deleted from the order dated 7th September, 2005.

( 9 ) CONSEQUENTLY, arguments on the preliminary issue were advanced by learned counsel for the parties on 17th and 18th April, 2006 when orders were reserved.

( 10 ) THE broad facts that may be culled out from a reading of the plaint and the documents filed therewith are that the suit property was leased out by the Land and Development Officer (L and DO) to Rai Sahib Kharaiti Ram Bedi, who died in 1961 leaving behind five legal heirs, who each then had 1/5th share in the suit property.

( 11 ) THE Plaintiff was a tenant in the suit property and in 1978 he entered into an agr

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