VALMIKI J. MEHTA, J. (ORAL)

1. The challenge by means of these two Regular First Appeals (RFAs) filed under Section 96 of Code of Civil Procedure, 1908 (CPC) is to the impugned judgment and decree dated 15.12.2001.

2. The impugned judgment and decree disposed of two suits, suit Nos. 451/1995 and 34/2001. Suit No. 451/1995 was a suit filed by the respondent/plaintiff for possession of portion of ground floor of the property No. D-1043, ward No. 8, opposite Babar Kothi, Mehrauli, New Delhi (hereinafter, referred to as the suit/subject property). Suit No. 34/2001 was a suit filed for injunction to restrain the defendants in the suit from carrying out any construction on the suit property. Plaintiff in the suit, and the respondent herein, Sh. Balwant Singh claimed the reliefs of possession and injunction on the ground that he was the owner of the suit property. There were four defendants in the suit. Defendant No. 1 Mrs. P.E. Lyall, the appellant herein, is the sister of the plaintiff/Sh. Balwant Singh. The other defendants being defendant Nos. 2 to 4 were the legal heirs of the late brother of the respondent/plaintiff namely, late Sh.George J. Singh. Defendant No. 2 was the widow of late Sh. George J. Singh and defendant Nos. 3 and 4 were the children of late Sh. George J. Singh. Defendant Nos. 2 to 4, after passing of the impugned judgment, had vacated the portion in their possession i.e. a portion in the ground floor of the property.

3. The dispute is now confined only to original defendant No.1-Smt. P.E. Lyall, who is the appellant in this Court, and between the original plaintiff-Sh. Balwant Singh, who is the respondent herein.

4. I may state that for the sake of convenience I am referring to respondent as the original plaintiff-Sh. Balwant Singh, inasmuch as, Sh.Balwant Singh, original respondent in the appeals expired during the pendency of the appeals and is now represented by his legal heirs. Reference in this judgment will be made to original appellant and the original respondent when the appeals were filed i.e. to plaintiff/respondent-Sh. Balwant Singh and defendant No. 1/appellant-Smt. P.E. Lyall.

5. Suit No. 451/1995 was a suit for possession which was filed on 18.4.1988. The suit for injunction being suit No. 34/2001 was filed on 21.11.1987. I am giving dates with respect to the filing of the suits inasmuch as the only issue which has been argued before this Court was the claim with respect to the respondent/plaintiff not being actual owner of the property, but only being the benamidar, and that it was the father/late Sh Jiwan Singh who was stated to be a real owner of the property. The dates of filing of the suits are important inasmuch as the Benami Transactions (Prohibition) Act, 1988 came in to force on 19.5.1988. After coming into force of the Benami Transactions (Prohibition) Act, 1988 (hereinafter, referred to as ‘the Act’), no suit can be filed to claim rights in a property on the ground that the property was held benami. Similarly, a defence which alleges that a property was benami and the actual owner was someone else, was also prohibited. This was a mandate of Section 4 of the Act. Though the Supreme Court initially in the case titled as Mithilesh Kumari & Anr. v. Prem Behari Khare, AIR 1989 SC 1247 had held that the Act was retrospective in operation and would even apply to pending proceedings, subsequently however, a Division Bench of three Judges in the case of R.Rajagopal Reddy v. P.Chandrasekharan, AIR 1996 SC 238 held that the passing of the Act will not affect pending proceedings i.e. the Act will not apply where/when a suit has already been filed before passing of the Act taking up the plea that the property was held as benami or when the defences of the property being benami were already taken up before passing of the Act. The suits which were filed by the respondent/plaintiff were for possession and injunction on the basis of title in his favour and therefore,