PREM DEVI JANJHARI Vs. PAWAN KUMAR JAIN

JUDGEMENT

(1.) Instant revision petition is directed against order dated 4.2.2016 passed by Senior Civil Judge & Addl. Chief Judicial Magistrate, Beawar, in Civil Suit No.22/2015, whereby the application filed by petitioner u/O.7 R.11 CPC, has been dismissed.

(2.) Brief facts noticed are that the plaintiff-non petitioner filed a suit for partition and permanent injunction against the petitioners and proforma nonpetitioner nos.2 to 5 initially before Additional District Judge No.1, Beawar which was subsequently, vide order dated 29.9.2015 returned to the plaintiff for want of pecuniary jurisdiction for filing the same before the competent court and then the said plaint was filed before Senior Civil Judge, Beawar. It was alleged by the plaintiff that residential property bearing municipal no.6/283 new number 7, Diggi Mohalla, Gali No.2, House No.3 [immovable property] was purchased through registered sale deed dated 15.5.1993 executed in favour of defendant-petitioner no.1. It was further alleged by the plaintiff that the transaction of purchase of the immovable property in question was a benami transaction. It was further alleged by the plaintiff that defendant no.1 was having no source of income, therefore, she was not having the capacity to purchase the said immovable property. It was further alleged by the plaintiff that since the property in question was purchased by his father from his own sources and his father has died, therefore, he being son of Late Shri Rajmal Janjhari, was having half share in the property in dispute. The plaintiff prayed for a decree of partition as well as a decree of permanent injunction in his favour.

(3.) On receiving summons of the suit, the petitioners put their appearance through counsel and petitioner no.2 filed an application u/O. 7 R. 11 CPC r/w sec. 4 of the Benami Transactions (Prohibition) Act, 1988 stating therein that the plaintiff despite of having knowledge that the property in dispute was purchased by petitioner no.1 through registered sale deed, has stated contrary, wrongful and illegal averments in para no.2 of the plaint by asserting that the transaction of purchase of property in dispute through registered sale deed in favour of petitioner no.1 was a Benami transaction. It was further stated that entire suit of the plaintiff was based on the said averment made by him on oath, and as sec.4 of the Benami Transactions (Prohibition) Act, 1988 creates an absolute bar to enforce any right in respect to any property held Benami against the person in whose name the property is held, thus, the suit filed by the plaintiff being barred by sec. 4 of the Act 1988, was liable to be dismissed.