Peer Mohammad vs Yakub Mohammad
2021 Latest Caselaw 1261 Chatt

                                  1

                                                              NAFR
        HIGH COURT OF CHHATTISGARH, BILASPUR
                        MA No. 20 of 2020
                  Order Reserved on :    01.07.2021
                 Order Delivered on :    20.07.2021

1.   Peer Mohammad S/o Taar Mohammad Musalman, aged about
     56 year.
2.   Zahir Mohammad S/o Taar Mohammad, aged about 50 year.
     Both R/o Musalman Para, Simga, Post Simga, Tahsil Simga,
     District Baloda Bazar-Bhatapara (C.G.)
                                                      ---- Appellants
                              Versus

1.   Yakub Mohammad S/o Taar Mohammad, aged about 53 years,
     R/o Musalman Para, Simga, Post Simga, Tahsil Simga, District
     Baloda Bazar-Bhatapara (C.G.).
2.   State of Chhattisgarh, through Collector, Baloda Bazar-
     Bhatapara (C.G.).
                                                  ---- Respondent

For Applicants : Mr. H.B. Agrawal, Sr. Advocate with Ms. Richa Dwivedi, Advocate For Respondent No.1 : Mr. Hemant Gupta, Advocate. For State/Respondent 2 : Mr. Vimlesh Bajpai, G.A.

Hon'ble Smt. Justice Rajani Dubey

CAV Order

20/07/2021

1. Proceeding through video conferencing.

2. The appellants/defendants have preferred this miscellaneous

appeal being aggrieved by the judgment and order dated

20.01.2020 passed in Civil Appeal No.H-28A/2019 by the

Additional District Judge, Bhatapara, District Balodabazar-

Bhatapara (C.G.), whereby the learned Additional District

Judge allowed the appeal filed by respondent No.1./plaintif

arising out of order dated 22.02.2019 passed in Civil Suit

No.6-A/2019 by Civil Judge Class-II, Simga, District

Balodabazar-Bhatapara and remitted the case to Civil Judge

Class-II, Simga.

3. Briefly stated facts of the case are that a civil suit was filed

by the respondent No.1 against the appellants/defendants

and State before the Civil Judge Class-II for declaration of

title, permanent injunction and separation of possession as

per partition. The plaint was filed with injunction application

and application under Section 151 of the Code of Civil

Procedure (for short 'the CPC') was also filed along with

Batwaranama, which was replied by the

appellants/defendants of the suit on 12.07.2019. The Civil

Judge Class-II, Simga, passed an order dated 22.07.2019

allowing the application under Section 4(1) of Benami

Transaction Prohibition Act, 1988 (for short 'the Act') and also

under Order 7 Rule 11 (d) of the Code and rejected the

plaintif's suit. Against this order, respondent No.1 filed an

appeal before the Additional District Judge, Bhatapara, along

with an application under Section 39 Rule 1 & 2 and under

Section 151 of the Code. The learned Additional District

Judge, vide order dated 20.01.2020, allowed the appeal of

respondent No.1 and case was remitted back to the trial

Court for adjudication of the matter afresh by setting aside

the order dated 22.07.2019. Hence, this appeal by the

appellants/defendants.

4. Learned Sr. Advocate appearing for the appellants submits

that there is no scope for interference by the lower appellate

Court as the plaint is hit by Section 4(1) of Act. Learned

counsel further submits that the learned lower appellate

Court did not consider that unless the case is not made out,

the same cannot be remitted back, therefore, the order of

appellate Court remanding the case may be set aside by

restoring the order of the learned trial Court. In support of

his submission, learned Sr. Advocate placed reliance on the

decision of Hon'ble Supreme Court in the matter of Syeda

Rahimunnisa Vs. Malan Bi (dead) by Legal

Representatives and Another reported in (2016) 10 SCC

315.

5. On the other hand, learned counsel for respondents

supported the impugned judgment and order. Learned

counsel for respondent No.1, referring the decision of Hon'ble

Supreme Court in the matter of Pawan Kumar Vs. Babulal

since Deceased Through Legal Representatives and

Others reported in (2019) 4 SCC 367, submits that

application for rejection of plaint on the ground of being

barred by law in the Act and from the statement in the plaint

it appears without doubt or dispute that suit is saved by

Section 4 (3) (b) of the Act, such disputed question of fact

has to be adjudicated on basis of evidence and cannot be

decided at the stage of consideration of application under

Order 7 Rule 11 (d) of the CPC.

6. I have heard learned counsel for the parties and perused the

material available on record.

7. A bare perusal of the order sheets of trial Court filed by the

appellants/defendants would show that on 19.06.2019,

plaintif/respondent No.1-Yakub Mohammad had filed civil suit

before the Civil Judge Class-II. Defendants/appellants herein

did not file their written statement and an application under

Order 7 Rule 11 of CPC was filed. On 22.07.2019, the learned

trial Court allowing the application of the

appellants/defendants rejected the suit on the ground of

being not maintainable under Order 4 (1) of the Act. Section

4 of the Act, as it stood before it was amended by Act 43 of

2016, was as under :-

"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 rigth 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. (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."

8. It is clear from Sub-Section 3 to Section 4 (a) of the Act which

deals with acquisitions by and in the name of a coparcener in

a Hindu undivided family or the benefit of such coparceners

in the family and Section 4(3)(b) of the Act deals with the

trustee and the beneficiaries thereof and the other that deals

with the persons standing in a fiduciary capacity and those

towards whom he stands in such capacity.

9. Hon'ble the Supreme Court in the matter of Pawan (supra)

has held in para 13, which reads thus:-

"13. In the present case, the controversy has arisen in an application under Order 7 Rule 11 CPC. 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 7 Rule 11 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 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. SBI Staf Assn. (2005) 7 SCC 510 : (SCC p.515, para 10)"

10. The pleading of the plaintif Yakub Mohammad is that

disputed property is a joint family property and

appellants/defendants are his real brother but the disputed

property is on his name and this dispute cannot be decided

only by advancing argument while deciding the application

under Order 7 Rule 11 of CPC. It is clear from order sheets

that appellants/defendants did not file written statement and

they had only filed an application under Order 7 Rule 11 of

CPC. Hon'ble the Supreme Court has already held in Pawan

(supra) that the 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 plaintif in the plaint,

without any doubt or dispute shows that the suit is barred by

any law in force.

11. The lower appellate Court has rightly observed that the order

of learned trail Court being not sustainable in the eye of law

set-aside and remitted back the case to the trial Court for

deciding afresh. The order of the learned appellate Court is

based on proper appreciation of law laid down by Hon'ble

Supreme Court in Pawan (supra), which does not calls for

interference by this Court.

12. Appeal thus being devoid of merit is liable to be dismissed

and it is hereby dismissed. No order as to costs.

Sd/-

                                                      (Rajani Dubey)
PKD                                                       Judge