(This judgment delivered at Srinagar Bench)
1. This revision petition is filed by the petitioners, who are the defendants in civil suit No. 4 of 2012 on the file of the learned Munsiff Aishmuqam, wherein the application filed by the petitioners under Order 7 Rule 11 of the Code of Civil Procedure seeking rejection of the plaint has been dismissed.
2. The brief facts necessary for disposal of this revision are as follows:
The respondents have filed civil suit No. 4 of 2012, seeking declaration, declaring the sale deed dated 15.04.1969 with respect to the suit property, I,e land measuring 27 Kanal and 07 marlas falling under survey nos. 249/250 situated at Hangalpawa, as a benami transaction and defendant no.1 be declared as Benamidar of the plaintiffs and for declaration declaring that plaintiffs are co-owners and co-possessors of the suit property with defendant no.1 along with the assets standing over it and for consequential relief of partition of the suit property between the plaintiffs and defendant no.1.
3. An application was filed by the petitioners under Order 7 Rule 11 CPC seeking rejection of the plaint alleging that the plaint do not disclose the cause of action and the provision of law. The said application was resisted by the plaintiffs/respondents by stating that the sale deed having been registered in the name of defendant no.1 in the year 1969 and the Benami Transactions (Prohibition) Act, 2010 having been enacted and implemented in the year 2010, as per Section 5 (3) of the said Act the suit filed by the plaintiffs is not barred and the plaintiffs can establish that the first defendant had purchased the property in his name for the benefit of the plaintiffs also.
4. In the plaint it is averred that the suit land was purchased in the name of defendant no.1 with the assent of the plaintiff nos. 1 and 2 and father of the plaintiff no.3 in the year 1969, therefore, the said sale transaction is a benami transaction and the defendant no.1 became the Benamidar and the plaintiffs who are the co-owners of the suit property in equal proportion are entitled to 6 kanal and 16 marlas and few sarsai of land after effecting proper partition. It is also averred in the plaint that plaintiff no. 1 and 2, father of defendant no.3 and the defendant no.1 were living in a joint family and are in joint possession of the suit property. The suit land is being cultivated by plaintiffs and defendant no.1 and they are jointly enjoying the usufruct which is reflected in the revenue records. The dead body of deceased father of plaintiff no. 1 and 2 and the brother of the plaintiffs father, who is the father of plaintiff no.3, namely, Mohd Bashir are buried in the suit land and their graves are existing in the suit land which proves that plaintiffs and defendant no.1 are possessing the suit land jointly and are co-owners and co-possessors of the suit property and the execution of the sale deed in the name of defendant no.1 was in fiduciary relationship. It is also averred that the purchase money was paid from joint family funds for which all the brothers have contributed.
5. Considering the said averments in the plaint, showing the cause of action, the Court below dismissed the application against which this civil revision is filed.
6. Mr. K. A. Ganai, learned counsel appearing for the revision petitioners argued that Section 5 (1) of the Benami Transactions (Prohibition) Act, 2010 clearly debar the plaintiffs to file the suit and the same has not been appreciated by the Court below and the application seeking rejection of the plaint is liable to be allowed.
7. I have meticulously perused the averments made in the plaint, the provisions of the Act, the objection raised by the plaintiffs as well as the order passed by the Court below.
8. The plaintiffs preferred the suit based on a sale deed dated 15.04.1969 which was executed in favour of defendant no.1 who is the first revision petitioner. It is stated in the plaint that the said sale deed was executed in favour of the first defendant as a benamdar and the plaintiffs as well as the first defendant are co-owners and the purchase money was paid out of the joint family funds and all the brothers have contributed and the first defendant was acting as a trustee and the suit is maintainable as the sale deed was registered prior to coming into force of the Benami Transactions (Prohibition) Act, 2010. Section 5 of the said Act is relevant to be considered for deciding this revision petition which reads as follows:-
5. Prohibition of the right to recover property held benami:
(1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property.
(2) No defence based on any right in respect of any property held benami, whether against the person, shall be allowed in any suit, claim or action or by or on behalf of a person claiming to be the real owner of such property.
(3) Nothing in this section shall apply
(a) Where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family, or
(b) Where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity.
9. On perusal of the said Section, particularly sub-section (3), it is clear that Section 5 (1) will not apply if the property has been purchased in the name of a person who is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family, or where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity. There is a definite pleadings to the satisfaction of Section 5 (3) (b) in the plaint.
10. The revision petitioners have filed the application under Order 7 Rule 11 of the Code of Civil Procedure, seeking rejection of the plaint. The said provision reads as follows:-
11. Rejection of plaint:
The plaint shall be rejected in the following cases:-
(a) where it does not disclose a cause of action;
(b) where the relief claimed in undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is property valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;
11. On a perusal of the said rule the Court is required to see whether the suit appears from the averments in the plaint to be barred by any law. The Court below having gone through the pleadings in the plaint and having found that there is definite pleading made in the plaint for invoking sub-Section 3(b) of Section 5 of the Benami Transactions (Prohibition) Act, 2010, dismissed the application.
12. The scope as to how the court can decide an application filed under Order 7 Rule 11 CPC came up for consideration before Hon ble the Supreme Court in the decision reported in AIR 2006 SC 3672 ( Ramesh B. Desai and Ors v. Bipin Vadilal Mehta and ors). Hon ble the Supreme Court held that the question of jurisdiction and cause of action had to be determined with reference to the allegations contained in the statement of plaint. In the decision reported in (2004) 12 SCC 376 ( Indian Mineral and Chemicals Co. and ors v. Deutsche Bank), in paragraph 10 and 11 it was held that the assertions in a plaint must be assumed to be true for the purpose of determining whether leave is liable to be revoked on the point of demurrer. In (2005) 7 SCC 510 (Popat and Kotecha Property v. State Bank of India Staff Association), Hon ble the Supreme Court in paragraph 10 of the judgment has held thus:-
10. Clause (d) of Order 7 Rule 7 speaks of suit, as appears from the statement in the plaint to be barred by any law. Disputed questions cannot be decided at the time of considering an application filed under Order 7 Rule 11 CPC. Clause (d) of Rule 11 of Order 7 applies in those cases only where the statement made by the plaintiff in the plaint, without any doubt or dispute shows that the suit is barred by any law in force.
13. On the basis of the principle laid down in the judgments of Hon ble the Supreme Court referred above and on the fact that sufficient pleadings are made by the plaintiffs in the suit, the merits of which can be determined only after trial of the suit, the application of the revision petitioners seeking to reject the plaint filed under Order 7 Rule 11, was rightly rejected.
14. There is no merit in the revision petition and the same is dismissed. However, the trial Court is directed to decide the suit un-influenced by any observations made in this order within a period of six months from the date of the receipt of copy of this order.