JOGINDER GUPTA Vs. MANGU RAM GUPTA

JUDGEMENT

(1.) This revision petition filed under Section 115 of the Code of Civil Procedure, 1920 A.D. (hereinafter "the Code") arises out of an order dated 04.08.2017 passed by the Court of learned 2nd Additional District Judge, Jammu (hereinafter "the Trial Court" for short) in File No.68/Suit titled Mangu Ram Gupta v. Joginder Gupta, whereby an application filed by the petitioner, who was defendant in the suit, in terms of order VII Rule 11 of the Code for rejection of the plaint, has been dismissed.

(2.) The respondent has filed a suit for declaration declaring him to be the owner of the first 1st and 2nd Floor of the building existing on shop owned by one-Virinder Gupta situated at Kanak Mandi, Jammu. The description, whereof, has been given in the plaint. The respondent also prays for consequential relief of possession and permanent prohibitory injunction against the petitioner. For facility of convenience, the petitioner shall be hereinafter referred to as the "defendant" and the respondent as "plaintiff". As is evident from the reading of the plaint in entirety, the plaintiff has set up a case of benami transaction. The plaintiff, in the plaint, has pleaded that in January 1996, he deputed the defendant to contact the petition writer, who had drafted the earlier sale deed dated 24.06.1995 with respect to the shop and get a sale deed with respect to 1st and 2nd Floor prepared but the defendant taking the benefit of the absence of the plaintiff, who remained out of station from 16.04.1996 to ending January 1996, got the sale deed qua the aforesaid two floors executed in his favour, though all expenses on account of sale consideration, stamp duty and registration charges had been borne by the plaintiff. It is claimed that the sale deed was also retained by the defendant. It is, further, claimed by the plaintiff that although the sale deed had been got executed by the defendant in his own name but the property subject matter of sale remained under his possession all along. The plaintiff claims that it was only in the month of May 2015, he could get back the original sale deed from the defendant after great persuasion and was astonished to find that the sale deed had been prepared by the defendant on his own name, despite the fact that all expenses, including the sale consideration, had been incurred and paid by the plaintiff. The plaintiff then refers to the conduct of the defendant, who, as per the plaintiff was not only indulging in criminal activities but also not behaving like an obedient son. The plaintiff also pleads that having regard to the activities of the defendant, he even executed a deed of disinheritance disentitling the defendant from inheriting his property. In paragraph (9) of the plaint, the plaintiff pleads that the defendant had taken the benefit of trust reposed on him by the plaintiff and being put into fiduciary capacity breached the trust and got the sale deed executed in his name fraudulently, without the consent and permission of the plaintiff. It is, thus, claimed that the status of the defendant was only that of trustee in fiduciary capacity. It is, thus, stated that since whole sale consideration and other charges of the sale of the property had been incurred by the plaintiff, as such, he was the actual owner and entitled to be declared as such. It is, on the premises of these pleadings in the plaint, the plaintiff has set up a title in himself as a benami owner of the suit property. The defendant, on being put on notice in the suit, filed an application under Order VII Rule 11 of the Code for rejection of the plaint, primarily, on the ground that the suit of the plaintiff was barred in terms of Jammu and Kashmir Benami Transactions (Prohibition) Act, 2010 (hereinafter referred to as "the Act of 2010"), which came into force on 21.04.2010. Section 5 of the Act of 2010 has been relied upon by the defendant in this regard. The Trial Court, after inviting objections to the application from plaintiff and hearing the learned counsels for the parties, vide its order dated 04.08.2007, dismissed the application on the ground that the same was not maintainable under Order VII Rule 11 of the Code. It is this order of the Trial Court which is impugned in this petition.

(3.) Learned counsel appearing for the defendant, who has come in revision, submits that the case of the plaintiff, as set up in the plaint, is one of Benami transaction, in terms of Section 82 of the Trusts Act, 1976 (1920 A.D.) and, therefore, barred under Section 5 of the Act of 2010, which has come into effect with effect from 21.04.2010. Reliance in this regard has been placed on Section 82 of the Trusts Act and Section 5 of the Act of 2010. It is, thus, urged that the plaint, as it is presented, does not disclose a cause of action and, even if, the same is assumed to have disclosed cause of action, it is barred by the provisions of the Act. Mr. Rahul Bharti, learned Advocate appearing for the defendant draws the attention of this Court to the judgment rendered in the cases of F2 Fun and Fitness Private Ltd. V. Golden Club Fitness Private Ltd, 2018 (6) JKLT 234 and T. Arivandandam v. T.V. Satyapal and anr., (1977) 4 SCC 467.