[Cites 11, Cited by 0]
Bombay High Court
Nilesh Shivaji Pingle vs Shivaji Baburao Pingle And Another on 29 January, 2026
2026:BHC-AUG:4602
903 CRA 53 18.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
903 CRA NO. 53 OF 2018
NILESH SHIVAJI PINGLE
VERSUS
SHIVAJI BABURAO PINGLE AND ANOTHER
...
Shri H. V. Tungar, Advocate for the Applicant.
Shri Sayyed Tauseef Yasin, Advocate for the Respondent No. 1.
Shri Ajinkya Reddy, Advocate for the Respondent No. 2.
...
CORAM : SHAILESH P. BRAHME, J.
DATE : 29.01.2026
ORDER :
Applicant is taking exception to the order dated 26.02.2018 passed
below Exhibit No. 15 refusing to reject the plaint by the Trial Court in R. C.
S. No. 565 of 2017. Applicant is the defendant No. 1 and the respondent
No. 1 is the plaintiff, who has filed suit for declaration of his title and
injunction.
2. The respondent No. 1 is the father of the applicant and the
respondent No. 2. Applicant Nilesh was born from the wedlock of first wife.
The respondent No. 2 was born from the wedlock of his second wife. The
suit land is stated to be ancestral property, recorded in the name of
plaintiff's mother Hausabai. Thereafter there was consensus in the members
of the joint family to allot the suit land to the respondent - plaintiff. It is
further contended that for the family arrangement Hausabai executed
registered sale deed on 26.12.2000 in the name of applicant and the
respondent No. 2, her grandsons, who were minors.
3. It is the case of the plaintiff that though by sale deed suit land is
transferred in the name of the applicant and defendant No. 2, in fact he is
903 CRA 53 18.odt
the owner and his title is disputed by them. Hence he has filed suit for
declaration of his ownership and the injunction.
4. Application Exhibit 15 was filed by the present applicant U/O VII Rule
11 of the Code of Civil Procedure (for the sake of brevity and convenience
hereinafter referred as to the 'C. P. C.')for rejection of plaint on the ground
that suit is not tenable in view of Sec. 4 of the Benami Transaction Act (for
the sake of brevity and convenience hereinafter referred as to the 'Act'). The
application is contested by the plaintiff. It was rejected by the impugned
order.
5. Learned counsel Mr. Tungar for the applicant submits that meaningful
reading of the plaint discloses that the plaintiff is claiming exclusive title and
his right to sue is based upon the benami transaction, which is clearly barred
by Sec. 4(1) of the Act. It is submitted that the exception carved out in Sec.
4(3)(a) of the Act has no application because it is neither a suit for partition
nor is the suit land claimed to be coparcenary property. It is further
submitted that it is not a case of the plaintiff that the suit land was
purchased from the income of the plaintiff and it was merely recorded in the
name of the defendants due to their minority and for their benefit. It is
submitted that going by the pleadings in the plaint it is squarely covered by
Sec. 4(1) of the Act.
6. Learned counsel for the respondent No. 1 submits that Act was
amended and in view of definition of Sec. 2(8) and 2(9), the transaction in
question is benami and the suit land is benami property which are triable
issues. It is submitted that the plaint cannot be rejected at the threshold
because adjudication on facts and law is required.
7. Learned counsel for the respondent No. 2 adopted the submissions of
the respondent No. 1. Additionally it is submitted that the amended Act
came into force on 01.11.2016. The sale deed was executed on 26.12.2000
and the suit is filed on 28.09.2017. As the suit is filed after enforcement of
903 CRA 53 18.odt
amended provisions, it is governed by amended Act. It is further submitted
that even if applicant succeeds to the extent of relief of declaration,
injunction is another relief for which the suit is maintainable.
8. Having considered the rival submissions of the parties, the Court has
to take into account Benami Transaction (Prohibition) Act 1988 and the
Prohibition of Benami Property Act, 1988. Earlier act is referred as old Act
and amended Act is referred as New Act. New Act is introduced on
01.11.2016.
9. The registered sale-deed was executed on 26.12.2000 in favour of
defendants by their grandmother Hausabai transferring the suit land.
Plaintiff claims that he is the owner of the suit land and his sons are
Benamidar. The transaction took place when old Act was in force. Present
suit is filed on 28.09.2017 when new Act has been enforced. Plaintiff seeks
reliance on Section 4(1) and exceptions in sub Section 3(a) of the old Act.
As against that, defendants relies on Section 4(1) and Section 2 (8) and
Section 2(9) of New Act. It is an intricate issue as to whether matter is
governed by old Act or new Act. A full fledged trial is required to examine
this aspect of the matter. When the defendant argues that exception in sub
Section 3(a) of the old Act is not attracted, it is unsafe to answer at this
stage. Besides declaration, relief of injunction has also been prayed. Unless
there is objective scrutiny of the matter the right to sue cannot be decided.
10. The suit is not for partition and the plaintiff is claiming his exclusive
title. The plaintiff has not pleaded that consideration has been paid by him
for purchasing the suit land. The issues are contentious. It is necessary to
enquire into as to whether the property is Benami. The respondents are
relying on the judgment of Pawan Kumar Vs. Babu Lal (2019) 4 SCC 367. In
that case plaint is sought to be rejected under Order VII Rule 11 of CPC due
to the provisions contained in old Act. In that case also suit was for
declaration of title. The following are the relevant observations:
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"13. In the present case, the controversy has arisen in an
application Under Order VII Rule 11 Code of Civil Procedure.
Whether the matter comes within the purview of Section 4(3) of
the Act is an aspect which must be gone into on the strength of
the evidence on record. Going by the averments in the Plaint, 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
VII Rule 11 Code of Civil Procedure 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 face 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. We may quote the following
observations of this Court in Popat and Kotecha Property v. State
Bank of India Staff Association (2005) 7 SCC 510 (SCC p.515,
para 10:
"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 Code of Civil Procedure. 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."
This Court is bound by the observations cited above.
11. Further reliance is placed on Shaifali Gupta Vs. Smt. Vidya Devi
Gupta and others; LiveLaw (SC) 604; inter alia relying on the judgment of
Pawan Kumar (supra). It is relevant to refer to following paragraphs:
"26. The Benami Act further defines 'benami property'
and 'benami transaction' under Sections 2 (8) and 2 (9) of
the said Act. Benami property is the property which is the
subject matter of benami transaction whereas benam/
903 CRA 53 18.odt
transaction is a property held by a person in respect
whereof consideration has been provided by some other
person but would not include certain categories of
properties such as where a person is holding a property in a
fiduciary capacity for the benefit of another person.
27. In such circumstances, whether a property is a
benami, has to be considered not in the light of Section 4 of
the Benami Act alone but also in connection with Sections 2
(8) and 2 (9) of the said Act i.e. whether the property if
benami falls in the exception. It is only where the property
is benami and does not fall within the exception contained
in Sub-Section (9) of Section 2 that a suit may be said to be
barred. However, the issue whether the property is benami
and is not covered by the exception, is again an issue to be
decided on the basis of evidence and not simply on mere
averments contained in the plaint. The defendants have to
adduce evidence to prove the property to be benami.
28. In Pawan Kumar vs. Babu Lal, a similar issue arose
before this Court in a matter concerning rejection of plaint
under Order VII Rule 11 (d) CPC. This Court held that for
rejecting a plaint, the test is whether from the statement
made in the plaint it appears without doubt or dispute that
the suit is barred by any statutory provision. Where a plea is
taken that the suit is saved by the exception to the benami
transaction, it becomes the disputed question of fact which
has to be adjudicated on the basis of the evidence.
Therefore, the plaint cannot be rejected at the stage of
consideration of application under Order VII Rule 11 CPC.
29. The ratio of the above case squarely applies to the
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facts of the case at hand. Accordingly, in our opinion, the
courts below have not committed any error of law in
rejecting the application under Order VII Rule 11 CPC on
the above score."
12. Relying upon the judgment referred above, I find that the trial court
is justified in rejecting the application. I find no illegality in the impugned
order.
13. The Civil Revision Application is dismissed.
( SHAILESH P. BRAHME, J.)
mkd/-
