OM PRAKASH GUPTA Vs. RADHEY SHYAM GUPTA

JUDGEMENT

(1.) The instant first appeal under Sec. 96 of the C.P.C. has been preferred by the plaintiff in O.S. No. 1034 of 2022 Omprakash Gupta v. Radheyshyam Gupta, against the impugned judgment and decree dtd. 3/3/2023 passed by the Court of Additional Civil Judge (Senior Division) Second, Gorakhpur, whereby the defendant's application 38-C under Order VII, Rule 11, C.P.C. was allowed and consequently, the plaintiff's suit was dismissed being barred by Sec. 4 read with Sec. 2(9) of The Prohibition of Benami Property Transactions Act,1988 (hereinafter referred to as the 'Act').

(2.) Factual matrix is that the plaintiff - appellant filed O.S. No. 1034 of 2022 against his elder brother/defendant Radheyshyam Gupta with the aver-ments that their father Krishnanath died about 45 years ago and at that time plaintiff was minor and since then the plaintiff and defendant are the members of a joint Hindu family, the defendant being its head and Karta.

(3.) It was further averred by the plaintiff that he and the defendant came to Gorakhpur in the year 1987 - 88 where they jointly started timber and sugarcane business and they gradually started accumulating money. The plaintiff averred that whatever he used to earn, he gave it to his elder brother/defendant, being the Karta of the joint family. He further averred that from their joint earning on 30/10/1995 in Indranagar, Gorakhpur five decimal land measuring 2180 ft. was purchased in the name of the defendant to which he didn't object, keeping in view the reputation and dignity of the family and also because the defendant was his elder brother and was also the head and the Karta of the joint Hindu family. He further averred that in the year 1993 he and the defendant after due consultation purchased two plots of land in Transport Nagar, Gorakhpur, out of which plot No. 56 was purchased in the name of defendant and plot No. 12 was purchased in his name. He further averred that he has constructed a three storey house on plot No. 12, in which till the year 2010, the families of plaintiff and defendant along with their mother resided together. He further averred that plot No. 56 has been bounded and pillars and walls have been constructed on it and merely the lantern remains to be cast.