Jammu & Kashmir High Court
Rajinder Kumar Aged 55 Years vs Sh. Girdahri Lal on 17 October, 2024
Author: Puneet Gupta
Bench: Puneet Gupta
Serial No. 3
Supplementary
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
(Through Virtual Mode)
Pronounced on : 17.10.2024
Case No: RFA No. 33/2024
CM No. 4617/2024
CAV No. 1483/2024
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1. Rajinder Kumar aged 55 years,
S/o Late Sh. Badri Nath,
R/o 292-Rehari Mohalla, Ward No.
07, Jammu, UT of J&K.
2. Surinder Kumar, aged 50 years,
S/o Late Sh. Badri Nath,
R/o 292-Rehari Mohalla, Ward No.
07, Jammu, UT of J&K.
3. Dalip Kumar aged 48 years,
S/o Late Sh. Badri Nath,
R/o 292-Rehari Mohalla, Ward No.
07, Jammu, UT of J&K. ...Appellant(s)..
Through :- Mr. Abdul Hafeez, Advocate.
Vs
1. Sh. Girdahri Lal
S/o Late Sh. Badri Nath,
R/o House No. 40, Lane No.02,
Sham Vihar, Talab Tillo, Jammu.
2. Sh. Kuldeep Kumar Viad and
3. Sh. Surinder Kumar
Both Ss/o Sh. Dharam Paul,
R/o Plot No. 93, Sector No.07,
EWS Colony, Lower Roop Nagar,
Jammu and Ward No. 06 Jourian,
Jammu. .....Respondent(s)..
Through :- Mr. Rahul Pant, Sr. Advocate with
Mr. Ajay Bakshi, Advocate.
Coram: HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
JUDGMENT
1. The appellants-plaintiffs filed a suit for declaration that the lease deed
dated 28.01.1991 and registered on 18th February, 1991 between JDA and
respondent-defendant No.1 in the suit was a benami transaction and the
plot mentioned in the lease deed was acquired by the father of the
plaintiffs and defendant No.1 out of the joint stock of Hindu undivided
family funds. The plaintiffs and defendant No.1 are entitled to the said
property to the extent of shares. The power of attorney executed by the
defendant No.1 in favour of defendant Nos. 2 & 3 is illegal and not
binding on the inheritance rights of the plaintiffs is also the case set up by
the plaintiffs in the suit.
2. The defendants filed application in terms of Order 7 Rule 11 of CPC for
rejection of plaint on the ground that the suit has been filed by the
plaintiffs under the Benami Transactions(Prohibition) Act, 1988 and as
per Section 4and 5 of the Act there is a bar of jurisdiction of Civil Court
to try the suit. Section 4 of the Act prohibits the right to recover the
property held Benami. The objections to this application were filed
wherein it is submitted that the allotment of the plot in question was made
in the year 1991. The provisions of Benami Transactions(Prohibition)
Act, 1988 would not be applicable but the provisions of Benami
Transaction Act, 2010, as then applicable the erstwhile State of J and K as
the transaction took place prior to the year 1991.
3. The learned counsels have made submissions in the matter.
4. The trial court allowed the application filed by the defendants under
Order 7 Rule 11 for rejection of plaint. The court held that the suit is
barred in view of the provisions of Benami Transactions(Prohibition),
Act,1988 as amended in 2016. The court also held that the suit is also
barred by law of limitation.
5. The learned counsel for the appellant has submitted that the Act of 2010
is applicable as the transaction took place prior to the year 2010. The
limitation point taken by the trial court to dismiss the suit is also
erroneous as the limitation is a mixed question of fact and law which
cannot be decided in the application filed by the defendants as the
evidence is required to be led to determine the limitation issue. The
counsel has laid emphasis on Section 2 (9) of The Benami Transactions
( Prohibition) Act 1988 amended in 2016 also to argue that the suit is
maintainable on the strength of the said provision of law.
6. Mr. Rahul Pant, learned Senior counsel appearing for the respondents-
defendants has argued that the suit is not maintainable in view of the
provisions of the 1988 Act as amended in 2016 Act as the suit of the
present nature is specifically barred. It is further pleaded that admittedly
the lease deed pertaining to the plot is executed between the defendant
No.1 and JDA and the possession had also been handed over to the said
defendant. There is no mention of any right of the plaintiffs in the said
lease deed. There is no question of the plaintiffs contributing to the
premium paid for the plot in question to JDA. The suit is palpably barred
by limitation as the averments of the plaint of their own reveal the same.
7. The court is required to only see the plaint and documents while
adjudicating upon the application filed under O 7 R 11 of the Code of
Civil Procedure and not the written statement or any other pleading filed
by the defendants while opposing the plaint. The court need not flood the
order with the judgments on this point.
8. The suit has been filed in the year 2024. The initial issue which arises for
consideration is whether the contents of the plaint speak of the transaction
in question being Benami one and, if so, whether the suit could be filed
by the appellants-plaintiffs before the court of law. The argument of
counsel for the appellants is that the case of the appellants is covered by
the Jammu and Kashmir Benami Transactions (Prohibition) Act, 2010 as
the transaction itself relates to the year 1991 when the respondent No.1
had entered into a lease deed with the JDA on behalf of the undivided
family of the appellants and the respondent No.1. Infact the case of the
appellants is covered by the exception as carved out in Section 5 (3) (a) of
the said Act.
9. The Court is not convinced with this argument of counsel for the
appellants. The court is required to see the "Act" which was applicable at
the time of filing of the suit. It cannot be disputed that when the suit was
filed by the appellants herein before the trial court, The Benami
Transactions( Prohibition ) Act, 1988 as amended in the year 2016 will be
applicable. The appellants cannot take any leverage of the Act of 2010 as
then applicable to the erstwhile State of Jammu and Kashmir.
10. The Court is still required to analyze the provisions of 1988 Act as
amended in 2016. Section 2(9) and 4 of the said Act are relevant for the
case in hand. The „Benami Transaction‟ is defined in Section 2 (9) of the
said Act.
"As per relevant provisions of aforesaid Section Benami
transaction" means,-- (A) a transaction or an arrangement-- (a)
where a property is transferred to, or is held by, a person, and the
consideration for such property has been provided, or paid by,
another person; and (b) the property is held for the immediate or
future benefit, direct or indirect, of the person who has provided the
consideration, except when the property is held by-- (i) a Karta, or
a member of a Hindu undivided family, as the case may be, and the
property is held for his benefit or benefit of other members in the
family and the consideration for such property has been provided
or paid out of the known sources of the Hindu undivided
family............."
11. Section 4 (1) of 1988 Act debars filing of the 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 the real owner of such
property. Section 2 (9) of the 1988 Act does not debar the party from
filing the suit even after the 2016 if the party is able to demonstrate in the
proceedings initiated by him that his case is covered by Section 2 (9) (a)
(i) or other exceptions mentioned in the said Section. If the case of the
party is covered by the exception made in Section 9 of 1988 Act it would
mean that the property regarding which the proceedings have been filed is
not infact a Benami Transaction and thus suit filed or action taken by the
party shall not be hit by Section 4 of 1988 Act. The argument of the
learned senior counsel for the respondents herein that the 1988 Act debars
the party from filing the present suit is without any force. The contents of
the plaint do reveal that the appellants-plaintiffs have based their claim in
the suit on the ground that the money utilized in the plot in question was
infact from the funds of undivided Hindu family and that the leased
property is held by the respondent No.1 on behalf of all family members
of the appellants and the respondent No.1. The party succeeds in proving
this assertion as made in the plaint is a different issue. The trial court has
gone wrong in holding that the suit is barred in view of the provisions of
the Act, 1988 as amended in the year 2016. The plaint could not be
rejected on the ground that the suit is barred by law.
12. The trial court while allowing the application for rejection of the plaint
has also rejected the plaint on the ground that the suit is barred by
limitation. Counsel for the appellants submits that the suit could not be
dismissed on that ground as the limitation aspect is a mixed question of
fact and law which can be decided only after the evidence is produced in
the suit. Learned Senior Counsel for the respondents however argues that
the plaint is required to be rejected on the ground of limitation as the
averments in the plaint are vague.
13. The trial court has held the suit being barred by limitation as the
transaction had taken place in year 1991 and the suit has been filed in the
year 2024 though a vague assertion is also made that in the year 2022 the
appellants gained the knowledge when the defendant No.1 got approved
the building plan for construction. The Court also held that even when the
father of the parties died in the year 2018 and the dependents had not
recognized the rights of the plaintiffs, the suit ought to have been filed
within a period of three years. The Court while dismissing the suit on
point of limitation has also held that the premium had been paid in the
year 1991 and lease deed being executed in the year 1991 as such the
transaction was within the knowledge of the plaintiffs.
14. Indeed, the suit can be dismissed on the point of limitation at the
threshold even without framing issue if the plaint clearly makes out that
the assertion regarding cause of action is vague as a result the limitation
prescribed for such suit cannot be determined. It is not necessary that the
party had to be given chance to produce evidence to prove that suit
having been filed within the period of limitation if the cause of action is
vaguely mentioned in the plaint that is without mentioning the date or
time in the plaint.
15. The perusal of the plaint reveals that the plaintiffs have stated of the
accrual of the cause of action in their favour initially from the time it
came to their notice that the suit property has been purchased out of the
common funds of the Hindu Undivided Family by their father for the
benefit of whole of the Hindu Undivided Family in the name of
defendant No.1. The plaint then records subsequent cause of action which
accrued in their favour when they came to know of the filing of the caveat
by defendant Nos. 2 & 3 on behalf of defendant No.1 about the deal
between the respondents herein.
16. After going through the plaint, the court is of the view that the plaintiffs
have tried to camouflage the date of accrual of first/initial cause of action
as the contents of the plaint do not reveal any specific date or time as to
when it came to the notice of the appellants that the suit property has been
purchased by the father of the parties out of common fund of the Hindu
Undivided Family for the benefit of the parties. It was incumbent upon
the appellants/plaintiffs to specifically mention the date/time regarding
the aforesaid knowledge but that is conspicuously absent from the
pleadings. No doubt the appellants in their suit have pleaded multiple
cause of action giving rise to filing of the suit yet the subsequent cause of
action will not give fresh lease of life to the limitation period as the same
commences from the first cause of action pleaded by the appellants in the
suit. In the absence of the specific pleadings regarding date of first cause
of action that accrued to the plaintiffs, it would be futile to direct the
plaintiffs to lead evidence on the point of limitation. The party cannot be
allowed to fill the lacuna through evidence when the pleadings are
basically deficient in this respect. It cannot be disputed that in the
application filed under Order 7 Rule 11 of the CPC, the plaint can be
rejected on the aspect of limitation. In the present case, this Court has no
hesitation in holding that the vague pleadings qua the cause of action
dents the case of the appellants and the plaint is required to be rejected on
the said ground.
17. In view of the discussion made above, the Court holds that the plaint of
the appellants/plaintiffs is liable to be rejected on the basis of limitation
point though the court has also held in the preceding paras that the
contents of the plaint do not bar the plaintiffs from filing the suit against
the defendants as their case is covered by the exception carved out in
Section 2 (9) of 1988 Act read with amended provisions of 2016.
18. Accordingly, the appeal filed by the appellants/plaintiffs against the
impugned judgment and decree is dismissed on the ground of limitation.
The judgment and decree of the trial court is upheld. The decree sheet
shall be prepared by the office.
(PUNEET GUPTA)
JUDGE
Jammu:
17.10.2024
Pawan Chopra
Whether the Judgment is speaking? Yes/No
Whether the Judgment is reportable? Yes/No
