SANTOSH KUMAR VERMA Vs. BASANTI DEVI

JUDGEMENT

(1.) APPELLANTS were defendants in Title Partition Suit No. 107 of 1996. In the plaint filed in the said suit, it was contended that the properties being the subject matter of the suit had been acquired by the husband of the Plaintiff No.1 and the father of the other plaintiffs on the basis of a registered sale deed in the name of the wife of his elder brother. It was stated that both the brothers were joint owners of the land and constructed building thereon and were residing therein jointly. It was also stated that there was a division in the holding, one in the name of the Plaintiff No.1 and the other in the name of the sons of the brother of the husband of the Plaintiff No.1. The sons and daughters of the brother of the husband of the Plaintiff No.1 were the defendants in the suit.

(2.) IN the suit the defendants took a plea of maintainability of the suit on the ground that the claim of the plaintiffs having been based on benami transaction, the suit was barred by the provisions of Sec. 4 of Benami Transactions (Prohibition) Act, 1988 and pursuaded the trial court to decide the issue raised thereby by way of preliminary issue. The trial court decided the issue in favour of the defendants and accordingly dismissed the suit.

(3.) AFTER the said order was passed but before the First Appeal was admitted, two applications -one under Order XXXIX Rule 4 read with Sec.151 of the Code of Civil Procedure and another under Sec.151 of the same Code were filed by the defendants in the appeal. In the latter application, a prayer was made to dismiss the appeal in limine on the ground that the order impugned in the appeal having been passed under Order XIV Rule 2 of the Code no appeal lay.