The case established that for a transaction to fall under the exception of the Benami Transactions (Prohibition) Act, 1988, the party must prove a fiduciary relationship and provide clear, cogent, and acceptable evidence to support the claim.

JUDGMENT

1. The Appellants by filing this appeal under section 100 of the Code of Civil Procedure, have assailed the judgment and decree dated 17.03.2017 and 31.03.2017 respectively passed by the learned 3rd Additional District Judge, Berhampur in RFA No. 47 of 2016 confirming the judgment and decree dated 04.05.2016 and 13.05.2016 respectively passed by the learned Civil Judge (Senior Division), Berhampur in C.S. No. 149 of 2012.

The courts below by the above judgments and decrees have nonsuited the Plaintiffs (Appellants). The suit filed by the Appellants as the Plaintiffs thus has been dismissed by the courts below.

2. For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the trial court.

3. Plaintiffs case is that their predecessor-in-interest namely Padma Charan Bahinipati and one Lingaraj Bahinipati i.e. the Defendant are two brothers being son of Raghunath Bahinipati. Padma Charan Bahinipati is elder to Lingaraj Bahinipati. Upon the death of their father when the Defendant was 9 years old boy, Padma Charan is said to have taken all his care in every front. In the year 1965, the Defendant having obtained MBBS degree ultimately went to United Kingdom for higher study.

It is the further case of the Plaintiffs that in the year 1971, Padma Charan purchased the suit property on his own by spending his earning without the help from any quarter and constructed a house over there for his living with family. The reason for the same as given is that since Padma Charan was then a Govt. employee in the Forest Department by spending his own funds instead of purchasing the property in his name standing as the vendee under said transaction; he preferred to purchase the property in the name of his brother i.e. the Defendant. After purchase, Padma Charan Bahinipati possessed the property as its owner and on his death, the Plaintiffs as the legal heirs and successors are in possession of the same. Having got some information that the Defendant is attempting to alienate the suit property, the Plaintiffs with the apprehension of losing their property have filed the suit for declaration of title, possession and injunction.

The Defendant having entered appearance in the suit had filed the written statement. Finding some objectionable averments to have been placed there in the written statement, the trial court had directed for deletion of the said portion. That being not carried out, the written statement has been struck out.

4. In the backdrop of the case projected by the Plaintiffs the both oral and documentary evidence, as have been tendered by them being appreciated, the trial court has answered the most crucial issue as to the ownership of the property against the Plaintiffs. It has been categorically held that the provision of sub-section (1) of section 4 of the Benami Transactions (Prohibition) Act, 1988 (hereinafter referred to the Act) stands on the way of entertaining the suit for enforcement of any right as real owners over the suit property said to be held benami against the defendant. In saying so, the trial court has thus negated the contention raised by the Plaintiffs that the transaction in hand under Ext.1 falls within the exception as provided in section 4(3) (b) of the Act as has been proved, further deriving support from the totality of the facts and circumstances as emerge out.

5. Mr. B. Routray, learned Senior Counsel for the Appellants (Plaintiffs) submitted that in the facts and circumstances as have been placed by the Plaintiffs in their evidence in consonance with the pleadings; the courts below have completely erred both on fact and law in rendering the concurrent finding that the transaction of purchase of the suit land under Ext. 1- the sale deed standing in the name of the Defendant is not covered by the exception as provided in clause (b) of sub-section-(3) of section 4 of the Act.

According to him, the relationship betw