O R D E R

This Civil Revision under Section 115 of the CPC is preferred feeling aggrieved by the order dated 09.12.2021 passed by 12th Civil Judge, Junior Division, Indore in regular Civil Suit-A-512 A/21 whereby the application of defendant/petitioner under Order 7 Rule 11 of CPC has been rejected.

2. Facts giving rise to this revision are that respondent/plaintiff filed a suit for declaration and permanent injunction regarding suit property old no.46 at present 63/12, Nanda Nagar, Main Road and valued relief of declaration Rs.3,00,000/- and permanent injunction Rs.1,000/-. Total valuation of Rs.3,01,000/- was put for the purpose of jurisdiction of court fees and paid a fixed court fees of Rs.1,000/- and Rs.120/-, total Rs.1,120/-.

3. In the plaint it was stated that he has 1/3rd share in the property in dispute which was purchased on 29.06.1981 by father of petitioner in the name of petitioner from the joint family income. It was also stated that the property in dispute was granted by petitioner in favour of respondent through a registered will. It was also stated in the plaint that the petitioner did not want to give share to the respondent therefore, he filed the civil suit.

4. That, after service of notice to the petitioner on 26.07.2021, the petitioner filed an application under Order 7 Rule 11 raising the plea that the Civil Suit is not maintainable because the plaintiff is not in possession and without seeking the relief for possession, suit simpliciter for declaration is barred by proviso of section 34 of the Specific Relief Act. It was also stated that the respondent filed a civil suit raising the plea of benami transactions, therefore civil suit is barred as per Section 4 of the Benami Transactions Act, 1988 (for brevity “the Act, 1988). Respondent attained the age of majority in the year 2001. But after expiry of the period of limitation, i.e. 3 years from the date of majority, he filed a civil suit in the year 2021, which is hopelessly time barred, therefore suit is not maintainable. It was also stated that if the respondent is claiming any right in the property on the basis of Joint Hindu Family property, then he ought to have filed a civil suit for partition which was not claimed, therefore as such no cause of action arose to file the civil suit and such no cause of action arose to file the civil suit and civil suit is not maintainable.

5. In the reply, the respondent has stated that the transaction dated 29/06/1981 is not affected by the provisions of the Act, 1988 on the ground that the Act,1988 is not applicable with retrospective effect. It was also stated that such transaction is exempted under Section 4 of the 1988 Act. In the reply it was also stated that the petitioner is in permissive possession therefore he did need not to ask any possession.

6. Trial Court dismissed the application and this revision has been preferred on the ground :- i. That, the learned trial court has committed serious error of law while dismissing the application raising the plea of maintainability of civil suit as per section 4(1) of The Prohibition of Benami Transaction Act, 1988.

ii. That, the learned trial court has committed serious error of law in dismissing the application merely on the ground that the Benami Transaction is a matter of evidence hence, cannot be decided at this stage.

iii. That, the learned trial court has committed serious error of law in dismissing the application under order 7 Rule 11 by holding that the respondents has made averments in the plaint of his possession and the petitioner has occupied the disputed property in the capacity of permissive possession therefore, the entitlement of relief claimed by the respondents is his by proviso to section 34 of Specific Relief Act, 1963 is matter of evidence.

iv. That, the learned trial court has committed serious error of law in not taking into consideration the facts that the respondent/ original plaintiff is not in possession and is not seeking relief for possessio