RAVINDER PARKASH Vs. SATYA PARKASH

JUDGEMENT

(1.) Satya Parkash, respondent herein, filed a suit for declaration and injunction challenging sale deed dated 12.12.1949 in favour of the Ravinder Parkash, petitioner herein, on the ground that the sale in favour of Ravinder Parkash was benami and in fact the real owner was Dr. Puran Chand. According to the plaintiff, Dr. Puran Chand died issueless on 6.9.1970 and on his death, plaintiff and defendants No. 2, 7, 8 and 9 became owners to the extent of 3/4th share in the property which was subject-matter of the sale deed dated 12.12.1949. The prayer of the plaintiff for grant of ad interim injunction restraining Ravinder Parkash from alienating the property was declined by the trial Court on the ground that after coming into force of Section 4 of the Benami Transactions (Prohibition) Act, 1988 , (briefly 'the Act') the plaintiff is not entitled to injunction as under Section 4 of the Act, 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, is maintainable by or on behalf of a person claiming to be real owner of such property. On appeal by the plaintiff, order of the trial Court was set aside and in consequence thereof. Ravinder Parkash was restrained from alienating the property till the decision of the suit. Ravinder Parkash has now impugned the order of the first appellate Court by way of present revision petition.

(2.) Having heard learned Counsel for the parties at length, I am of the view that this revision petition deserves to succeed. Sale deed of the year 1949 is being challenged in the year 1985 and that too on the ground that Dr. Puran Chand who died in the year 1970 was in fact the real owner and Ravinder Parkash held the property Benami. The trial Court rightly found that plaintiff was not entitled to injunction in view of Section 4 of the Act as prima facie the suit was not maintainable. The other challenge in the suit that the property belongs to Hindu Undivided Family or was a Joint Hindu Family property and Ravinder Parkash was a coparcener, is a matter yet to be gone into by the trial Court, if so pleaded by the plaintiff. Merely because, it was asserted before the trial Court that property in suit was joint Hindu Family Property, in no way would establish before the trial Court that the property in fact is a Joint Hindu Family property. The assertion so made is only an allegation and will not take place of proof. Thus I am of the view that the order of the first appellate Court cannot be sustained.

(3.) Mr. R.K. Jain, Counsel for the plaintiff, at this stage, contends that second application under Order 39 Rules 1 and 2 of the Code of Civil Procedure, was not maintainable as the petitioner had filed a similar application which was dismissed. For this, he has referred to para 12 of the judgment of the first appellate Court. From the impugned order, I find that some of the defendants had filed an application which was dismissed. It is not clear from the order that the petitioner in fact had filed such an application. Therefore, this contention is also devoid of any merit. Consequently, the revision petition is allowed. No costs.