2025:BHC-AUG:14317 {1}

rIN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 2959 OF 2024.

M/s. Anil Electrical through Proprietor Shri Anil Ramchandra Ghadge Age 49 years, Occ. Business and Agriculture, R/o. Ghorpadwadi, Taluka Rahuri, District Ahmednagar. .. Appellant.

Versus

1. Subhash Ramchandra Ghadge Age 60 yeaars, Occ. Business & Agri.

R/o. Ghorpadwadi, Tq. Rahuri, District Ahmednagar.

2. Mandakini Subhash Ghadge, Age 51 years, Occ. Agri.

R/o. Ghorpadwadi, Tq. Rahuri, Dist. Ahmednagar.

.. Respondents.

Mrs. C.S. Deshmukh, Advocate for appellant.

Mr. A.K. Gawali, Advocate for respondent Nos. 1 and 2.

CORAM :S.G. CHAPALGAONKAR, J.

RESERVED ON : 28.02.2025.

PRONOUNCED ON : 08.05.2025.

JUDGMENT :-

1. Heard Mrs. Charuta Deshmukh learned advocate for appellant and Mr. A.K. Gawali, learned advocate for respondent nos. 1 and 2.

2. Present appeal takes exception to the order dated 21.9.2024 passed by Civil Judge (S.D.), Amhednagar below Exh.17 in Special Civil Suit No. 99 of 2024, by which the plaint has been rejected in exercise of {2}

powers under Order 7 Rule 11 (d) of CPC. For sake of convenience, parties are referred as per their original status.

3. The appellant/plaintiff instituted suit seeking declaration that suit property has been purchased and developed by him. As such, he is lawful owner of the property. Similarly, sought relief of perpetual against defendants, in the alternative, plaintiff prayed for a decree for recovery of amount of Rs. 1,14,40610/- against defendants towards expenditure incurred for development of suit property.

4. It is contention of plaintiffs that under sale deed, which are executed in name of defendants suit property has been purchased. Consideration amount is paid by him. It is further contended that he is in possession the suit property and made huge expenditure for its development. The defendants are now obstructing his possession and likely to deal with the property on the basis of mutation entries in their name.

5. The defendants caused their appearance in the suit and filed application under Order 7 Rule 11 of C.P.C. seeking rejection of plaint on the ground that suit is barred in view of Section 4(1) of the Benami Transactions (Prohibition) Act, 1988. The trial court accepted the plea of defendants and rejected the plaint.

6. Smt. C.S. Deshmukh, Learned advocate for the appellant submits that plaintiff and defendant No.1 are real brothers. In view of fiduciary relationship between them, plaintiffs purchased property in the name of defendant No.1. Such a transaction would not be hit by Section 4 of Benami Transactions Prohibition Act, 1988. In view of sub clause {3}

(b) of clause (iii) of Section 4, such transaction is protected. She would further urge that plaintiff has made alternative prayer for recovery of amount towards the expenditure incurred on the suit land. Therefore, merely relying upon bar under Section 4 of the Benami Act, plaint could not have been rejected. In support of her contention, she relies upon the observations of the Supreme Court in the matter of Pawan Kumar Vs. Babulal reported in AIR online 2019 SC 461. She would further submit that partial rejection of plaint would not be permissible if one relief can not be granted under law and alternative relief can be considered, then, rejection of plaint would not be proper. She would further rely upon judgment of this Court in case of Sopan Sukhdeo Sabale vs, Assistant Commissioner AIR 2004 SC 1801.

7. Per contra, Mr. Gawali, learned advocate for respondents submits that Section 4 of the Benami Transactions (Prohibition) Act prescribes no suit or claim or action to enforce rights in respect of properties held Benami against the person, in whose name property is held or any other person shall lie by or on behalf of a person claiming to be the real owner of such property. The prayer of declaration of ownership made by plaintiff is on the basis of Benami transaction and, therefore, the suit is barred under Section 4 of t