Hon'ble KOTHARI, J.—In a legal battle between the mother-in-law and daughter-in-law of predeceased son, this writ petition under Article 227 of the Constitution of India has been filed by mother-in-law Smt. Shanta Devi W/o late Sh. Anand Prakash, who is also said to have expired during the pendency of this writ petition, and her son Pradeep Kumar against the respondents-plaintiffs-Smt. Aarti Devi W/o predeceased son Suresh Kumar and her two children Dikshita and Gungun being aggrieved by the order dtd. 18.11.2009 passed by the learned Additional Distt. Judge (Fast Track) No. 2, Udaipur in Civil Original Suit No. 261/2008- Smt. Arti Devi vs. Smt. Shanta Devi rejecting the three applications of the defendants-petitioners in a suit for declaration, partition and injunction filed by the respondents- plaintiffs in the trial court in respect of suit property situated at Hiran Magri, Sector 4; House No. 1167 at Udaipur.

2. The plaintiff Smt. Aarti Devi W/o predeceased son Suresh Kumar filed the present suit claiming that the said suit property was purchased by her husband vide registered sale-deed on 17.3.1992 in the name of his younger unmarried brother Anil Kumar, who is also said to have died since then and who was `benamidar' of the suit property and the said property really belonged to her husband in which the present defendants and petitioners , her mother-in-law Smt. Shanta Devi and brother-in-law Pradeep Kumar were residing on the ground floor and therefore, the declaration in this regard may be given to the plaintiffs that the suit property belonged to her husband and also grant injunction against the defendants not to disturb her peaceful possession of the first floor of the suit property.

3. The defendants filed an application under Order 7 Rule 11 CPC questioning the maintainability of the suit itself and according to the defendants, the same was hit by Section 3 and 4 of the Benami Transaction (Prohibition) Act, 1988 and by other applications, question of limitation and court fee valuation was also raised by the defendants.

4. These applications were contested by the plaintiffs and the learned trial Court by the impugned order dtd. 18.11.2009 rejected all the three applications of the defendants and hence the present writ petition has been filed by the defendants-petitioners.

5. Dr.Sachin Acharya, learned counsel appearing for the petitioners-defendants relying upon the provisions of Benami Transactions (Prohibition) Act, 1988 and various judgments submitted that the sale-deed question being of 17.3.1992 after enforcement of said Prohibition Act, 1988 with effect from 19.5.1988, Section 3 clearly prohibited any benami transaction and Section 4 clearly prohibits right to recover the property allegedly held Benami and hence the suit filed by the plaintiffs Aarti Devi w/o late Sh. Suresh Kumar was simply not maintainable and the learned court below has erred in holding that it being a mixed question of facts and law should be decided only after leading of evidence even though as a preliminary issue and the suit could not be dismissed on the anvil of Order 7 Rule 11 CPC. Similarly, the learned trial Court has erred in rejecting the application of the defendants that the suit was time barred since in the plaint itself, it was shown that the cause of action had arisen to the plaintiffs on 11.11.2008, whereas the registered sale-deed in question in favour of Anil Kumar was of 17.3.1992 and therefore, as per Article 58 of the Limitation Act, 1963, the said suit for declaration could be filed only within a period of 3 years of 17.3.1992 and the suit being time barred also deserves to be dismissed at the threshold. He also submitted that the court fee paid by the plaintiff was inadequate and the objections raised in the application of the defendants has also been wrongly rejected by the learned trial Court.

6. Dr. Sachin Acharya, therefore, emphatically submitted that the suit itself was not maintainable being hit by Section 4 of the B

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