Abhay M. Naik, J.

Plaintiffs/respondents No. 1 to 3 instituted a suit for declaration and restoration of possession against Kallu Khan (Predecessor of the present appellants) with the allegations that they are the sons of late Rahim Bux. Karim Bux alias Chhingu, the father of Rahim Bux, had two wives. One of them was Neema Bai, who was from a poor 'Kori' family and was converted to Muslim. Rahim Bux was engaged in the business of Bidi manufacture. He was also engaged in the purchase and sale of plots and houses. Two plots bearing Nos. 3268 and 3266 situated at Damoh were purchased by Karim Bux vide registered sale deed in the name of Neema Bai in the year 1943. The plots were purchased in her name as 'Benami' and Karim Bux continued to be their true owner. A house was constructed on a portion of the plots. After the death of Karim Bux, in the year 1946, the suit property was inherited by Rahim Bux, who died on 13-7-1980. Consequently, the plaintiffs/respondents No. 1 to 3 being the sons of Rahim Bux, inherited the suit property and have been continuing in its possession. Their names have also been entered into the record of the Municipal Council. The defendant occupied the suit property as tenant of Rahim Bux. Consequently, in the year 1954, another portion of suit property was also provided to him. A Civil Suit was instituted for eviction and recovery of arrears of rent by Rahim Bux against the defendant in the Court of Third Civil Judge Class-II Damoh. The defendant took a plea that the suit property was gifted to him by Neema Bai. The suit was dismissed. However, the defendant continued in unauthorised possession of the suit property. Since the title was disputed by the defendant, the plaintiffs instituted the suit for declaration of title as well as restoration of possession.

In the written statement, it has been contended that the plot was purchased by Neema Bai and the construction was also made by her with the aid of her own money. It has been denied that the suit property devolved upon the plaintiffs. It has been specifically pleaded that in the earlier round of litigation, the gift set up by the defendant was upheld and this finding would operate as res judicata. It has been reiterated that Neema Bai executed an oral gift in favour of the defendant which was accepted by the latter. Accordingly, a prayer for dismissal of the suit has been made.

Learned trial Judge decreed the suit in favour of plaintiffs/respondent Nos. 1 to 3 vide judgment and decree dated 29-8-1988, which has been upheld by the learned Lower Appellate Court vide impugned judgment and decree dated 11-1-1991.

Aggrieved by the aforesaid, the present appeal has been preferred which has been heard on the following substantial questions of law :--

(1) Whether the judgment and decree of the lower Appellate Court are vitiated being in disregard of the provisions of Benami Transaction (Prohibition) Act, 1988 ? If so, the effect ?

(Formulated on 30-10-1991)

(2) Whether the judgment and decree passed in Civil Suit No. 7-A/1979 is having effect of res judicata in the matter and the suit was barred u/s 12 of CPC ?"

(Formulated on 25-1-2007)

(3) Whether theory of Benami Transaction is recognised under Muslim Law?

(4) Whether the findings about Benami Transaction is vitiated due to perversity on account of non-consideration of relevant factors ?

(5) Did the plaintiffs inherit the suit property from Neema Bai under Muslim Law ?

(Formulated on 16-7-2007)

As regards substantial question of law No. 1, it may be seen that section 4(1) of Benami Transaction (Prohibition) Act, 1988, lays down that no suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property. This section shall be deemed to have been come into force on 19-5-1988. Hon'ble Supreme Court of India in the case of R. Rajagopal R