The main legal point established in the judgment is that a suit to enforce a right in respect of a property held benami is not maintainable under Section 45 of the Prohibition of Benami Property Transactions Act, 1988.

JUDGMENT

Achintya Malla Bujor Barua, J. - Heard Mr. N. Dhar, learned counsel for the applicant/appellant and Mr. S Sarma, learned counsel for the opposite party No.1/respondent.

2. The plaintiff in Title Suit No.23/2018 instituted in the Court of the learned Civil Judge No.3, Kamrup (M), Guwahati is related to the defendants in the manner that the defendant No.1 is the mother of the plaintiff, the defendant No.2 and 3 are the brothers of the plaintiff and the defendant No.4 is the sister of the plaintiff. In paragraph 2 of the plaint, the plaintiff took the plea that the father of the plaintiff Hansha Nath Baishya, who died on 04.10.2017 leaving behind the plaintiff and the defendants had in the year 1992 purchased a plot of land measuring 2K of Dag No.1101 K.P Patta No.108 of revenue village Betkuchi, Mauza Beltola in the district of Kamrup (Metro) in the name of his wife being the defendant No.1. The further plea taken was that the purchase was made for the benefit of his wife and the children, which also includes the plaintiff. It was pleaded that the defendant No.1 is a house wife and as such has no income of her own to purchase the plot of land. Thereafter, it was pleaded as follows:-

"The defendant No.1 is mere a Benamidar of the said land. As such defendant No.1 is not the absolute owner of aforesaid land. The defendant No.1 is a co-owner/co-sharer along with other legal heirs and representatives of plaintiff''s father, Late Hansha Nath Baishya. By virtue of land purchase, the defendant No.1 is not the absolute owner of said 2 kathas of land."

3. The specific pleading was that the defendant No.1 is a mere Benamidar of the suit land and as such is not the absolute owner of the land. Thereupon pleadings are made that the defendant No.1 is a co-owner and co-sharer along with the other legal heirs and representatives of the father of the plaintiff. However, based upon such purchase of the land in the name of the defendant No.1, the revenue authorities issued separate Patta in the name of the defendant No.1 in respect of 1K-15L of land.

4. Further pleading of the plaintiff as stated in paragraph 5 of the plaint iss that for the purpose of construction of a G+2 building over the schedule land to be constructed by the plaintiff, the defendant No.1 by swearing an affidavit (NOC) on 27.01.2014 had allowed the plaintiff to construct the RCC building by giving a no objection from her and other family members towards such construction by the plaintiff. According to the plaintiff, in such manner, he had constructed the RCC building and thereafter rented it out to some tenants and the rent in liu of such tenancy was paid to the defendant No.1. A specific plea was taken in paragraph 12 of the plaint that on 14.12.2017, the defendant No.2 came to the suit premises and threatened the tenants of the plaintiff by asking them to vacate their respective tenanted premises on or before 30.12.2017 or else they would forcibly be evicted therefrom. On the basis of such pleadings, the Title Suit 23/2018 was instituted with the following prayers:-

"(A) A decree declaring the right, title interest and possession of the plaintiff to the effect that he plaintiff is entitled to use and enjoy the suit premises as described in Schedule B below, as the plaintiff with due and valid permission/NOC given by the defendant No.1 as well as other defendants the plaintiff constructed G+2 RCC building over the suit premises and that the main defendants have no right or authority to raise objection in any manner whatsoever in using and enjoying the suit premises as described in the Schedule B appended herein below.

(B) A decree of permanent injunction may be passed against the main defendants, their agents and employees from interfering and disturbing the plaintiff in using and enjoying the suit premises, as described in Schedule-B below and further restraining the main defendants from causing any damage to the existing building and interfering with the peaceful po