The main legal point established in the judgment is that a suit claiming title on the basis of benami transactions is barred under section 4(1) of the Benami Transactions (Prohibition) Act, 1988.

JUDGMENT :

1. This revision is directed against the order dated 9-9-2010 passed in Civil Suit No. 72-A/2010, by which the Second Civil Judge Class-II, Gadarwara, District Narsingpur rejected the application of the petitioner/ defendant No. 1 under Order 7, Rule 11 of the Code of Civil Procedure.

2. Brief facts giving rise to filing of this revision are that the respondent No. 1 filed the suit alleging that the petitioner/defendant No. 1 is his real nephew, being son of the elder brother of respondent No. 1. Since the marriage of the respondent No. 1 had taken place at a later stage, and he was not having any issue at the relevant time, he purchased certain land benami on the name of the petitioner vide registered sale deed dated 21-4-1982. The entire sale consideration was paid by respondent No. 1 and he was put in possession. Only the name of the petitioner was recorded as purchaser benami. It is further contended that the land in other village was also purchased in the same manner benami by a registered sale deed dated 25-10-1983, though the entire sale consideration by the respondent. The petitioner got the name mutated over the land in suit 2-3 years back, after attaining the majority and is trying to sale out the property, therefore, the cloud is caused on the title of the respondent No. 1 and, therefore, the suit is required to be filed for declaration of title to the effect that the respondent No. 1 is in fact purchased the land in suit by a registered sale deed dated 21-4-1982, 3-8-1982 and 25-10-1983 benami in the name of petitioner but he is the real owner. A decree of permanent injunction is also claimed.

3. The petitioner herein after service of summon of the suit filed an application under Order 7, Rule 11(d) of Civil Procedure Code stating that the suit as framed by the respondent No. 1 was not maintainable and the plaint was liable to be rejected as the same is barred under the provisions of Benami Transactions (Prohibition) Act, 1988 (hereinafter referred to as 'Act'). The trial Court has rejected the application of the petitioner therefore, this revision is required to be filed.

4. It is vehemently contended by learned counsel for the petitioner that a bare perusal of provisions of section 4 of the Act makes it clear that the suit as filed by respondent No. 1, for the relief aforesaid, was prohibited under the law made by the Parliament. It is contended that if it was mentioned in the plaint that the benami transaction had taken place even prior to coming into force of the Act, the same would be hit by provisions of section 4 of the Act. It is thus, contended that the suit as filed by the respondent No. 1 was hit by sub-section (1) of section 4 of the Act and the same was not maintainable. The plaint was liable to be rejected. However, this particular aspect has not been considered by the Court below and the application filed by the petitioners has wrongly been rejected. It is contended that in such circumstances, the order impugned is bad in law and is liable to be set aside. It is contended that the suit as filed by the respondent No. 1 is liable to be dismissed.

5. Per contra, it is contended by learned counsel appearing for the respondent No. 1 that the entire plaint is required to be seen while considering the application under Order 7, Rule 11 of Civil Procedure Code. The written statement is required to be filed by the petitioner and then only an objection can be taken with respect to maintainability of the suit. Only after framing of the issues, recording of evidence, the suit could have been decided. This being the situation, it cannot be said that the suit as framed by the respondent No. 1 was not maintainable and thus, the application of petitioner was rightly rejected. It is also contended that the Act was made in the year 1988, the transaction had taken place in the year 1982 and 1983 and, therefore, since the transaction was prior to coming into force of the Act, it cannot be said that the bar as pres