This

appeal

by

the

unsuccessful

plaintiff

in

O.S.No.6922/2000 is directed against the impugned Order

dated 31.03.2015 on the file of the XLIII Additional City Civil

and Sessions Judge, Bengaluru (for short “the trial Court”),

whereby the said suit for partition and separate possession of

the suit schedule immovable property filed by the appellant-

plaintiff against the respondents-defendants was dismissed by

the trial Court pursuant to the impugned order dated

30.03.2015, whereby the application I.A.No.12 filed by

respondent Nos.7 and 8 – defendant Nos.7 and 8 under Order

7 Rule 11 (a) and (d) CPC r/w. Section 4 of the Benami

Transactions (Prohibition) Act, 1988 (for short “the said Act of

1988) was allowed by the trial Court, which in turn rejected the

plaint.

2.

Heard learned counsel for the appellant, learned

counsel for respondent No.7 and perused the material on

record.

4

3.

A perusal of the material on record indicates that

the appellant-plaintiff instituted the aforesaid suit for partition

and separate possession of his alleged share in the suit

schedule immovable property. In the plaint, it is specifically

contended that the plaintiff and defendant No.2 were the sons

of defendant No.1 – Narayanamma and her husband

Doddamuniyappa, who purchased the suit schedule property

with his own funds in the name of his wife, Narayanamma. It

was also contended that the said Doddamuniyappa was the

true/real/actual owner of the suit schedule property and that

Narayanamma, defendant No.1, who was only a benamidar

did not have any source of income, much less any

independent source of income to purchase the suit schedule

property, which was acquired with the aid of joint family funds

and retirement savings of Doddamuniyappa. It was also

contended that defendant No.1 was not entitled to alienate or

execute the Sale Deed dated 22.09.2000 in favour of

defendant Nos.7 and 8, to which the plaintiff was not a party

and secondly, the said alienation by defendant No.1 was

5

invalid and not binding upon the plaintiff. It was therefore

contended that the plaintiff has an undivided share in the suit

schedule property and that the same deserves to be divided

by metes and bounds by passing a decree in favour of the

plaintiff as sought for in the suit.

4.

In addition to filing of written statement and inter

alia disputing/denying the plaint averments, defendant Nos.7

and 8 also filed an application, I.A.No.12 under Order VII Rule

11(a) and (d) CPC r/w. Section 4 of the said Act of 1988,

specifically contending that in view of the express bar to

institute a suit as envisaged under Section 4 of the said Act of

1988, the suit filed by the plaintiff was not maintainable. It was

also contended that there was no cause of action for the suit

and the plaint was liable to be rejected.

5.

After hearing the parties, the trial Court came to

the conclusion that in the light of the undisputed fact that the

sale deed in respect of the suit schedule properties stood in

the name of Narayanamma, the suit filed by the plaintiff

6

claiming that she was a Benamidar and her husband was the

real owner was barred by Section 4 of the said Act of 1988.

Under these circumstances, the trial Court proceeded to reject

the plaint and consequently, dismissed the suit, aggrieved by

which the appellant is before this court by way of the present

appeal.

6.

A perusal of the material on record including the

impugned order passed by the trial Court will clearly indicate

that the trial Court failed to consider and appreciate the scope

and ambit of Section 3 of the said Act of 1988, in the light of

the plaint averments, wherein the plaintiff has specifically

contended

that

respondent

No.1-defendant

No.1,

Narayanamma did not have any source of income much less

any independent source of income to acquire the suit

schedule property and that the same was acquired by

Doddamuniyappa with the aid of joint family funds/nucleus and

his retirement savings. The trial Court also failed to consider