A suit based on a Benami transaction instituted after the commencement of the Benami Transactions (Prohibition) Act, 1988, is barred by law, regardless of when the transaction occurred. Courts must look through the form of the transaction to its substance and order the seizure/confiscation of such property.

Rakesh Kainthla, Judge

2. Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a civil suit before the learned Trial Court seeking a permanent prohibitory injunction for restraining the defendants from alienating the suit land mentioned in para-1 of the plaint and interfering with his possession. It was asserted that the plaintiff’s predecessor-in-interest had purchased the suit land through a registered sale dated No.51, dated 20.10.1948, and Sale deed No. 61 dated 23.11.1949 in the name of Hira Nand as Benami. The plaintiff’s predecessor could not get the Sale deed executed in his name because the persons who were not residing at Kandaghat were barred from purchasing property. Pandit Hira Nand was the permanent resident of Kandaghat and entitled to purchase the land; therefore, the land was purchased in his name, but the possession continued with the plaintiff’s predecessor-in-interest. He developed the suit land, constructed a building and raised a retaining wall. The defendants have no concern with the suit land. A settlement was carried out in the area, and the suit land was shown in the ownership of defendants No.1 to 15 and in the plaintiff’s possession. The defendants threatened to alienate the suit land and dispossess the plaintiff. Hence, the suit was filed to seek the relief mentioned above.

3. The suit was opposed by filing a written statement by defendants No.1 to 15, taking preliminary objections regarding the lack of maintainability, the suit being collusive, the suit being barred by time, and the plaintiff being estopped by his act and conduct to file the suit. The contents of the plaint were denied on the merits. It was specifically denied that the plaintiff’s predecessor-in-interest had purchased the land in the name of Hira Nand and that he or the plaintiff remained in possession of the suit land. It was asserted that the plaintiff had applied for the correction of Khasra Girdawaries, and his name was entered in the column of possession regarding 1-1 bigahs of the land. The rest of the plaintiff's claim was rejected, and he has not filed any appeal against the order. Plaintiff is out of possession, and there is no question of his dispossession. Therefore, it was prayed that the suit be dismissed and a decree of possession be passed in favour of the defendants regarding the land mentioned in the counterclaim by demolition of the structure.

4. A replication denying the contents of the written statement and affirming those of the plaint was filed.

5. The learned Trial Court framed the following issues on 01.05.1998 and additional issues on 09.06.2003: -

1. Whether the plaintiff is entitled for the relief of permanent prohibitory injunction as prayed for? OPP

2. Whether the suit is collusive between the plaintiff and defendants No.16 to 19, as alleged? OPP

2-A Whether the suit is hit under Section 4(1) of the Benami Transaction (Prohibition) Act, as alleged? OPD.

3. Whether the plaintiff is out of possession, and a suit for injunction is not maintainable? OPD.

4. Whether the suit time-barred? OPD.

5. Whether the plaintiff is estopped from filing the present suit as alleged?

6. Whether the defendants No.1 to 15 are entitled to possession of one Bigha and one Biswa of land as alleged? OPD.

7. Whether the counter claim is time barred? OPP.

8. Whether the plaintiff is owner in possession of the suit land? OPP.

9. Whether the plaintiff is in lawful possession of Khasra No. 649, 651, 652,