THIS CRP IS FILED UNDER SECTION 115 OF CPC, PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 26.09.2024 PASSED BY THE ADDITIONAL SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, MUDHOL IN OS NO.348/2022 REJECTING I.A.NO.II FILED BY THE PETITIONERS UNDER ORDER 7 RULE 11(A),(B), (C) AND (D) OF CPC SEEKING TO REJECT THE PLAINT AS PER ANNEXURE-A AND ALLOW THE IA NO.II FILED UNDER ORDER 7 RULE 11(A)(B)(C) AND (D) CPC IN OS NO.348/2022, IN THE ENDS OF JUSTICE AND EQUITY.

THIS CRP COMING ON FOR DICTATION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM: THE HON'BLE MR. JUSTICE RAVI V.HOSMANI

ORAL ORDER

Challenging order dated 26.09.2024 passed by Additional Senior Civil Judge and JMFC, Mudhol, For short, ‘Trial Court’, on IA no.II in OS no.348/2022, this petition is filed.

Sri Arun L. Neelopant, learned counsel for petitioners submitted that petitioners were defendants no.1 and 2 in OS no.348/2022 filed by respondent herein (plaintiff) for declaration that gift deed dated 06.07.2022 executed by defendant no.1 in favour of defendant no.2 as null and void; for mandatory injunction directing defendant no.1 to execute registered reconveyance sale deed and permanent injunction restraining defendants from interfering with plaintiff’s peaceful possession over suit property etc.

It was submitted, in plaint, plaintiff stated that defendants no.1 and 2 were his mother and sister. And that entire sale consideration for purchase of suit property under registered sale deed dated 25.03.2022 was paid by plaintiff. In view of same, defendant no.1 had subsequently, reverted land bearing Sy.no.266 measuring 7 Acres 15 guntas to plaintiff under registered gift deed. However, defendant no.1 illegally transferred other land bearing Sy.no.265 measuring 5 Acres 12 guntas, in favour of defendant no.2, as if she was absolute owner thereof.

On appearance, defendant filed IA no.II under Order VII Rule 11 (a) to (d) of Code of Civil Procedure, 1908 (‘CPC’ for short) for rejection of plaint contending that plaint did not disclose cause of action and that sale deed dated 25.03.2022 showed consideration amount of Rs.32,50,000/-. It was submitted, even on a complete and meaningful reading of entire plaint, it would emerge that plaintiff’s claim in respect of suit property was about their purchase by plaintiff in name of defendant no.1, which would be hit by Sections 4 and 9 of Benami Transactions (Prohibition) Act, 1988 (‘BT Act’, for short). It was contended, plaint did not disclose basis for plaintiff’s claim and as defendant no.1 had received land acquisition compensation amount for submergence of her Stridhana properties, she had money for purchase of suit property. Further, plaintiff claimed relationship between plaintiff and defendant no.1 was fiduciary in nature even when as on date of sale deeds, i.e. 25.03.2022, when he would have been 30 years of age. Therefore, claim of defendant being in fiduciary capacity to plaintiff was without basis. Apart from above, even plaintiff’s claim that he had paid Rs.1,67,82,500/- towards purchase of suit property, without particulars about source of such huge amount.

Though above contentions were duly urged, under impugned order, trial Court rejected IA no.II by overlooking above contentions. In support of his submission he relied on decision of Hon’ble Supreme Court in case of Sri Nimbanna v. Shivananda Kinnal and Anr.²SLP (C) No.27426 of 2018, Disposed of on 01.02.2021, for proposition that when it was asserted in plaint that a property was purchased by a person from his funds in name of another, bar under Section 4 of BT Act, would apply and contention that such other person was holding it in fiduciary capacity would not be available. Under above circumstances, rejection of application on cursory reasoning that whether transaction had taken place in fiduciary capacity and exempt from applicability of provisions of BT Act would require trial, amounted to material irregularity calling for interference by this Court.