Oral Judgment:

01. Heard the learned Counsel appearing for the applicant as well as the learned Counsel appearing for the non-applicant.

02. By the present revision application, the applicant has invoked the jurisdiction of this Court under Section 115 of the Code of Civil Procedure (CPC) and challenged the order dated 12/04/2024 passed below Exh.16 by the learned 14th Joint Civil Judge, Junior Division, Amravati, thereby rejecting the application filed by the applicant/original defendant under Order VII Rule 11 of the CPC.

03. The non-applicant is the original plaintiff, whereas the applicant is the original defendant in R.C.S. No.440/2023. For the sake of brevity, the parties shall hereinafter be referred to in their original status.

04. The plaintiff filed R.C.S. No.440/2023 seeking a decree of declaration and mandatory injunction restraining the defendant from entering into an agreement to sale in respect of the suit property in favour of any other person. The plaintiff further prayed for a decree of mandatory injunction restraining the defendant from selling the suit property.

05. The plaintiff contended that the defendant is his elder brother. The father of the plaintiff and the defendant died in the year 1993, whereas their mother, Sitabai died in the year 2021. The plaintiff further contended that after the demise of his father, he purchased the suit property from Shriram Vijay Estate Agency (hereinafter referred to as “Agency” for short) by paying the instalments in the name of his elder brother/defendant and got the sale deed executed on 07/04/1998, vide Registration No.1447/1998. As per the tradition prevailing in the Sindhi community, the plaintiff got the sale deed of the suit property executed in the name of his elder brother/defendant.

06. After the demise of their mother, the plaintiff requested the defendant to transfer the suit property in his name. However, the defendant failed to do so. In the month of October 2023, the plaintiff again requested the defendant to transfer the suit property in his name, but no such transfer was effected. Consequently, on 29/09/2023, the plaintiff issued a legal notice, to which he received a reply on 05/10/2023. The defendant also affixed a notice board on the suit property claiming ownership thereof. Therefore, the cause of action arose for filing the suit.

07. After service of summons, the defendant appeared in the matter and filed an application (Exh.16) under Order VII Rule 11 of CPC, seeking rejection of the plaint mainly on the grounds that the plaint does not disclose any cause of action and that the claim for declaration is barred by the provisions of Section 4 of the Benami Transactions (Prohibition) Act, 1988 (hereinafter referred to as “the Act” for short). It was further contended that the suit is barred by limitation, as the sale deed was executed in favour of the defendant on 07/04/1998, whereas the plaintiff sought a declaration after the expiry of the prescribed period of limitation.

08. The non-applicant/plaintiff filed his reply (Exh.19) and opposed the said application, contending that (i) the receipts of consideration paid towards the suit property, stamp papers and sale deed stand in the name of the plaintiff; (ii) owing to the fiduciary relationship between the plaintiff and the defendant, the suit property was purchased in the name of the defendant and, therefore, the suit is not barred under Section 4 of the Act; (iii) the cause of action arose when the defendant refused to transfer the suit property by his reply dated 05/10/2023 to the legal notice; and (iv) the suit is properly valued in accordance with the provisions of the Maharashtra Court-fees Act. Hence, the plaintiff prayed for rejection of the said application.

09. On 12/04/2024, the learned trial Court passed the impugned order and rejected the application on the ground that the plaint discloses a cause of action, the suit is not barred under Section 4 of the Act, and the question of limitation and valuation of the suit property is a mixed question of fact and law.

10. The learned Counsel appearing for the applicant/defendant canvassed that, as per the pleadings of the plaintiff, the sale deed was executed on 07/04/1998 in favour of the defendant. Therefore, the suit seeking declaration in respect of the suit property ought to have been instituted within a period of three years therefrom. Instead, the plaintiff instituted the suit in the year 2023, which is hopelessly barred by limitation. Therefore, the learned trial Court ought to have rejected the plaint on the ground of limitation, as contemplated under Order VII Rule 11(d) of CPC. It is further canvassed that, in view of the provisions of Section 4 of the Act, the suit filed by the plaintiff is barred by law. However, the learned trial Court misinterpreted the provisions of Section 4 of the said Act. It is further submitted that no cause of action arose on 05/10/2023. Therefore, the learned trial Court ought to have allowed the application and rejected the plaint.

11. In support of his submissions, the learned Counsel appearing for the applicant placed reliance on the decision of the Hon'ble Supreme Court in the case of Shri Mukund Bhavan Trust and others vs. Shrimant Chhatrapati Udayan Raje Pratapsinh Maharaj Bhonsle and another, reported in 2024 SCC OnLine SC 3844, wherein the Hon'ble Supreme Court, after considering the various judgments referred to therein as well as the provisions of Order VII Rule 11 of CPC, held that limitation is a mixed question of fact and law and the question of rejecting the plaint on that score has to be decided after weighing the evidence on record. Further, the alleged cause of action is also found to be creation of fiction, hence, the trial Court erroneously dismissed the application filed by the appellants under Order VII Rule 11(d) of CPC.

12. Per contra, the learned Counsel appearing for the non-applicant/plaintiff supported the findings recorded by the learned trial Court. He submitted that the plaintiff has specifically pleaded that he purchased the suit property in the year 1992 from the Agency on instalment basis and paid the instalments through cheques. It is further submitted that the said Agency also executed an agreement to sale. Thereafter, the plaintiff purchased the stamp papers and got the sale deed executed on 07/04/1998 in the name of his elder brother/defendant in order to maintain his position in the family and society as per the customs prevailing in the Sindhi community. However, the defendant, despite being financially well-settled, refused to transfer the suit property in the name of the plaintiff. After the demise of their mother, the plaintiff requested the defendant to transfer the suit property in his name, but no such action was taken. Hence, on 29/09/2023, the plaintiff issued a legal notice through his Counsel. However, on 05/10/2023, the defendant replied to the said notice and denied the claim of the plaintiff. Thus, the cause of action arose for filing the suit. It is further submitted that the provisions of Section 4 of the Act do not create a bar for filing of the suit. Hence, the suit filed by the plaintiff is not barred by law.

13. In support of his submissions, the learned Counsel appearing for the non-applicant/plaintiff placed reliance on the decision of the Hon'ble Supreme Court in Pawan Kumar vs. Babulal Since Deceased Through Lrs. and Ors., reported in 2019(4) SCC 367, wherein the Hon'ble Supreme Court considered the case of R. Rajgopal Reddy through Lrs. vs. Padmini Chandrasekharaiah through Lrs. - (1995) 2 SCC 630 and held that the question whether the plea raised by the appellant is barred under Section 4 of the Act or not could not have been the subject matter of assessment at the stage when application under Order 7 Rule 11 of CPC was taken up for consideration. The matter required fuller and final consideration after the evidence was led by the parties. It cannot be said that the plea of the appellant as raised on the fact of it, was barred under the Act. The approach must be to proceed on a demurrer and see whether accepting the averments in the plaint, the suit is barred by any law or not.

14. Needless to say, in the cited case, the Hon’ble Supreme Court also considered the judgment in Popat and Kotecha Property v. State Bank of India Staff Association, reported in (2005) 7 SCC 510, and held that Clause (d) of Order VII 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 the application filed under Order VII Rule 11 of CPC. Clause (d) of Rule 11 Order VII 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.

15. In the case in hand, the plaintiff has specifically pleaded that his father-Gopichand died in the year 1993 and that as per the customs prevailing in the Sindhi community, it is the responsibility of the elder brother to maintain his siblings and other family members. In the year 1992, the plaintiff was unmarried and had purchased the suit property on an instalment basis from the Agency, for which he paid the instalments through cheques. So also, an agreement to sale was also executed between the plaintiff and the Agency. Upon payment of the sale consideration, the sale deed was executed on 07/04/1998 in the name of the defendant. In the year 2021, their mother- Shantibai died. Thereafter, the plaintiff requested the defendant to transfer the suit property in his name, as the defendant was well-settled in his business. However, the defendant failed to transfer the suit property. Hence, on 29/09/2023, the plaintiff issued a legal notice through his Counsel. Soon after receipt of the said notice, the defendant erected a notice board on the suit property claiming ownership thereof. The defendant also replied to the legal notice and denied the right of the plaintiff. Therefore, the cause of action arose when the defendant denied the rights of the plaintiff.

16. Nonetheless, though it has been canvassed on behalf of the defendant that the plaintiff ought to have instituted the suit in the year 1998 itself, after execution of the sale deed, no material has been brought on record to show that there was any dispute between the plaintiff and the defendant regarding transfer of the suit property prior to September 2023.

17. Section 4 of the Act prohibits enforcement of rights in respect of property held benami, subject to the applicable statutory exceptions, which reads thus :

                    “4. 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 in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property.”

18. Considering the law laid down by the Hon’ble Supreme Court in Pawan Kumar (cited supra), it does not appear that the suit seeking transfer of the property is barred under Section 4 of the Act. Further, the Hon’ble Supreme Court held that the question as to whether the suit is barred under Section 4 of the Act could not have been the subject matter of consideration at the stage of deciding an application under Order VII Rule 11 of the CPC. Therefore, the submissions canvassed on behalf of the applicant/defendant are not acceptable. On perusal of the plaint, it appears that the plaintiff has disclosed a cause of action for filing the suit and that the suit is not barred by limitation.

19. Hence, I do not find that the findings recorded by the learned trial Court are perverse, illegal or bad in law, or that the learned trial Court has failed to exercise the jurisdiction vested in it. Hence, the present revision application stands dismissed with no order as to costs.