1. This revision is directed against the order dated 9-9-2010 passed in Civil Suit No. 72-A/2010, by which the Second Civil Judge Class-II, Gadarwara, District Narsingpur rejected the application of the petitioner/defendant No. 1 under Order 7, Rule 1 I of the Code of Civil Procedure.

2. Brief facts giving rise to filing of this revision are that the respondent No. 1 filed the suit alleging that the petitioner/defendant No. 1 is his real nephew, being son of the elder brother of respondent No. 1. Since the marriage of the respondent No. 1 had taken place at a later stage, and he was not having any issue at the relevant time, he purchased certain land benami on the name of the petitioner vide registered sale deed dated 21-4-1982. The entire sale consideration was paid by respondent No. 1 and he was put in possession. Only the name of the petitioner was recorded as purchaser benami. It is further contended that the land in other village was also purchased in the same manner benami by a registered sale deed dated 25-10-1983, though the entire sale consideration by the respondent. The petitioner got the name mutated over the land in suit 2-3 years back, after attaining the majority and is trying to sale out the property, therefore, the cloud is caused on the title of the respondent No. 1 and, therefore, the suit is required to be filed for declaration of title to the effect that the respondent No. 1 is in fact purchased the land in suit by a registered sale deed dated 21-4-1982, 3-8-1982 and 25-10-1983 benami in the name of petitioner but he is the real owner. A decree of permanent injunction is also claimed.

3. The petitioner herein after service of summon of the suit tiled an application under Order 7, Rule 11(d) of Civil Procedure Code stating that the suit as framed by the respondent No. 1 was not maintainable and the plaint was liable to be rejected as the same is barred under the provisions of Benami Transactions (Prohibition) Act, 1988 (hereinafter referred to as Act). The trial Court has rejected the application of the petitioner therefore, this revision is required to be filed.

4. It is vehemently contended by learned counsel for the petitioner that a bare perusal of provisions of section 4 of the Act makes it clear that the suit as filed by respondent No. 1, for the relief aforesaid, was prohibited under the law made by the Parliament. It is contended that if it was mentioned in the plaint that the benami transaction had taken place even prior to coming into force of the Act, the same would be hit by provisions of section 4 of the Act. It is thus, contended that the suit as filed by the respondent No. 1 was hit by sub-section (1) of section 4 of the Act and the same was not maintainable. The plaint was liable to be rejected. However, this particular aspect has not been considered by the Court below and the application filed by the petitioners has wrongly been rejected. It is contended that in such circumstances, the order impugned is bad in law and is liable to be set aside. It is contended that the suit as filed by the respondent No. 1 is liable to be dismissed.

5. Per contra, it is contended by learned counsel appearing for the respondent No. 1 that the entire plaint is required to be seen while considering the application under Order 7, Rule 11 of Civil Procedure Code. The written statement is required to be filed by the petitioner and then only an objection can be taken with respect to maintainability of the suit. Only after framing of the issues, recording of evidence, the suit could have been decided. This being the situation, it cannot be said that the suit as framed by the respondent No. 1 was not maintainable and thus, the application of petitioner was rightly rejected. It is also contended that the Act was made in the year 1988, the transaction had taken place in the year 1982 and 1983 , therefore, since the transaction was prior to coming into force of the Act, it cannot be said that the bar as prescribed under the provisions of section 4(1) of the Act would be applicable. It is contended that the Act itself is not made with retrospective effect. Thus, it is contended that there is no force in the revision petition and the same deserves to be dismissed.

6. Heard learned counsel for the parties and perused the record.

7. Undisputedly, the Act was enacted in the year 1988 but the bar was created under sub-section (1) of section 4 of the Act that no claim would be made on the basis of any benami transaction. The bar is to file a suit or to make a claim and not that a particular transaction is benami or not. If a suit is filed after coming into force of the Act, claiming any right, title or interest on the basis of any benami transaction, whether it was done prior to coming into force of the Act or after coming into force of the Act, would be barred under sub-section (1) of section 4 of the Act. For proper appreciation, the provision of sub-section (1) of section 4 of the Act is reproduced :

"(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."

8. This particular aspect has been considered by the Courts on various occasions. This particular aspect that the bar would be applicable in the suits which were required to be filed after coming into force of the Act has been considered by the Apex Court in the case of Duvuru Java Mohana Reddy vs. Alluru Nagi Reddy, AIR 1994 SC 1647 [LQ/SC/1993/409] . Further it is considered by the Apex Court that if a claim was pending prior to coming into force of the Act, the same would not be barred under the provisions of section 4 of the Act. Please refer Prabodh Chandra Ghosh vs. Urmila Dassi, AIR 2000 SC 2534 [LQ/SC/2000/1082] . In view of the pronunciation of these laws by the Apex Court, it is clear that the bar is only with respect to filing of suit or making of a claim in defence only after coming into force of the Act and not in respect of the claim which are made prior to coming into force of the Act. It is also abundantly clear from this that, if a transaction is said to be done prior to coming into force of the Act but the claim is made after coming into force of the Act, based on such a transaction, the bar prescribed under the Act would be applicable.

9. In light of this, if it is considered whether the suit as framed by respondent No. 1 was hit by sub-section (1) of section 4 of the Act or not, it is to be seen as to how the claim was made by respondent No. 1. In the plaint it is categorically contended by the respondent No. 1 that the petitioner is his real nephew and out of the love and affection he made the purchases of land in the name of petitioner on 21-4-1982, 3-8-1982 and 25-10-1983. It is categorically contended in paras 4, 5 and 6 that the aforesaid lands though were purchased in the name of petitioner but since the sale consideration was paid by the respondent No. 1, all those purchased were benami. In view of these contentions, the relief is claimed that the respondent No. 1 be declared the real owner of the land in suit and it be declared that the said sale deed executed, are benami and do not confer any title on the petitioner. The permanent injunction is also claimed by the respondent No. 1. If these pleadings and the relief are compared, it will be squarely clear that the respondent No. I/plaintiff was claiming title on the basis of benami transaction said to have taken place on 21-4-1982, 3-8-1982 and 25-10-1983. This being so, the prohibition under the Act is squarely applicable and such a plaint was hit by Order 7, Rule 11(d) of Civil Procedure Code. This being so, the Court below was not right in rejecting the application of the petitioner.

10. Resultantly, the revision is allowed. The order impugned is set aside. The application filed by the petitioner under Order 7, Rule 11(d) of Civil Procedure Code is allowed. The suit filed by the respondent No. 1 plaintiff is dismissed as barred under section 4(1) of the Benami Transactions (Prohibition) Act, 1988.

11. In the facts and circumstances of the case, there shall be no order as to costs.

Revision allowed.