Delhi District Court
Liyakat Khan & Anr. vs . Ahsan Khan on 8 November, 2011
IN THE COURT OF SHRI VIJAY KUMAR DAHIYA
ADDL. DISTRICT JUDGEII, (NORTHWEST), ROHINI COURTS, DELHI
CS No. 77/11
LIYAKAT KHAN & ANR. VS. AHSAN KHAN
ORDER
08.11.2011
1. Vide this order I shall dispose off the application under Order 7 Rule 11 CPC moved by the defendant.
2. Brief facts, in nutshell, are that the plaintiffs and defendant are real brother and residing at Janta Flat no. B996, Avantika, Rohini, Delhi - 85 (hereinafter referred to as the suit property) It is further stated that the suit property was purchased by the father of parties namely Sh. Noor Mohammad on 10.07.1995 in the name of the plaintiff and defendant for a consideration of Rs. 80,000/ vide registered Will, General Power of Attorney, Agreement to Sale, SP, Affidavit etc. It is further stated that the original documents were kept by the defendant in his possession since the purchase of the suit property. It is further stated that suit property was a single storied flat at the time of its purchase and father of the parties got constructed three floors on the same after demolishing the existing structure at that time. It is further stated that ground floor was handed over to plaintiff no. 2, first floor to defendant and CS No. 77/11 page no. 1 of 8 second floor was handed over to plaintiff no. 1 respectively by the father of the parties and the above named parties are residing over the suit property at their respective floor.
3. It is further stated that on 28.07.08 father of the parties Sh. Noor Mohammad left for heavenly above and after his death, defendant started creating troubles on the one pretext or other and thereafter, defendant has got disconnected the electricity meter which was in the name of predecessor in title Sh. Harichand. Thereafter, plaintiff no. 2 visited the electricity department and it transpired that that the suit property is in the name of defendant and thereafter plaintiffs inquired about the title of the suit property and found that defendant had got the suit property transferred in his name on the basis of false and forged documents and obtained the conveyance deed dated 28.05.99 from DDA. It is further stated that defendant has become dishonest and wants to grab share of plaintiffs. Therefore the forged and fabricated documents filed by the defendant be declared as null and void and suit property be partitioned in the name of parties.
4. Defendant has filed written statement and contended, interalia, therein that no cause of action arose in favour of the plaintiff and suit is not CS No. 77/11 page no. 2 of 8 maintainable and plaintiff has suppressed the material facts. It is further submitted that defendant is the absolute owner in possession of the suit property and the plaintiffs are residing in the suit property being real brothers as licencee and after the death of the father of the parties defendant requested them to vacate the suit property and the plaintiffs become dishonest and plaintiffs are residing in the suit property only in the capacity of unauthrized occupant. It is further submitted that defendant has valid and genuine conveyance deed in respect of the suit property which was got transferred from the predecessor in title of the suit property, Sh. Hari Chand in favour of the defendant.
5. Replication filed by the plaintiff wherein averments of written statement are denied and contents of the plaint are reiterated, therefore, the same are not repeated herewith for the sake of brevity.
6. Therefore, the application u/o 7 Rule 11 CPC for rejection of the plaint has been moved by the defendant. Defendant has stated that suit is not maintainable as plaintiff no. 2 admitted that suit property was purchased by the father of the parties in the name of plaintiffs and defendant, therefore as per the averments the suit is barred by Section 4 & 5 of the Benami Transaction CS No. 77/11 page no. 3 of 8 (Prohibition) Act, 1988 in this regard he has relied upon the judgment "R. Rajagopal Reddy Vs. Padmini. Chandrasekharan AIR 1996 Supreme Court 238".
7. On the other hand, ld. Counsel for plaintiff has contended that as per the averments made in the application the suit property was purchased by the father of the parties and the said transaction can not be held as benami transaction. It is further contended that at the time of adjudication of application u/o 7 Rule 11 CPC only the averments of the plaint are to be seen and defence of the defendant is immaterial for such adjudication. It has been further contended that the word "provided" in Section 2(a) can not be construed narrowly and the sale consideration even if provided by the father can not bring the suit property within the preview of benami property. In this regard he has relied upon "Pawan Kumar Gupta Vs. Rochiram Nagdeo AIR 1999 Supreme Court 1823, Rajinder Prashad Malik Vs. Shanti Devi Malik AIR 2003 Punjab & Haryana 29".
8. The controversy in question is that the sale deed alleged to have been executed in favour of the defendant with consideration supplied by their father Sh. Noor Mohammad is a benami transaction. Before proceeding further, CS No. 77/11 page no. 4 of 8 it will be relevant to peruse the relevant Section 4 of the Act which is reproduced as under:
"Prohibition of the right to recover property held benami(1) 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 shall lie by or on behalf of a person claiming to be the real owner of such property. (2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming be the real owner of such property.
(3) Nothing in this section shall apply, (a) Where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the co parceners in the family, or...."
9. Mere perusal of this provision depicts that a real owner is barred from initiating any proceedings, suit claim, to enforce any right in property held benami against the person in whose name such property is held or any other person. This is also the ratio of R. Rajagopal Reddy (Supra). Here in the present case the property is alleged to be purchased by Sh. Noor Mohammad int he name of his sons i.e. Plaintiff and defendant and it is not the case of the applicant that suit property is claimed by real owner. So the provision of Section 4 of Benami Property is not applicable. Similarly the meaning of word "provided" in Section 2(a) of the Benami Transaction Act can not be construed narrowly so as to make genuine transaction fall within the mischief of word "provided" and be included in the provision of benami transaction. So even if, father had paid CS No. 77/11 page no. 5 of 8 sale consideration as per averment of the plaint, that would not make the sale deed a benami transaction so as to push it into the forbidden area envisaged in Section 3(1) of the Benami Act.
10. In the Hon'ble High Court judgment titled as "Texem Engineering Vs. Texcomash Export 179 (2011) DLT 369(DB)" has observed as under: "2. There can be no gainsaying that an application under Order 7 Rule 11 of the CPC for rejection of the plaint has to be decided entirely on a perusal of the plaint and documents filed along with it. It authorities are required for this proposition, we need not travel beyond the latest exposition of the law contained in Liverpool & London S.P. & I Association Ltd. V. M.V. Sea Success I, (2004)9 SCC 512. More recently, in Mayar (H.K.) Ltd. V. Owners & Parties, Vessel M.V. Fortune Express, II (2006) SLT 612=(2006) 3 SCC 100, it has yet again been clarified that the Court can not reject a plaint under Order 7 Rule 11 of the CPC on the basis of the allegations made in the Written Statement. In other words, the defence of the Suit is not relevant for the purpose of Order 7 rule 11 of the CPC. The summation of the law is available in the following paragraphs thereof:
12. From the aforesaid, it is apparent that the plaint can not be rejected on the basis of the allegations made by the defendant in his written statement or in an application for rejection of the plaint. The Court has to read the entire plaint as a whole to find out whether it CS No. 77/11 page no. 6 of 8 discloses a cause of action and if it does, then the plaint can not be rejected by the Court exercising the powers under Order 7 Rule 11 of the Code.
Essentially, whether the plaint discloses a cause of action, is a question of fact which has to be gathered on the basis of the averments made in the plaint in its entirely taking those averments to be correct. A cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleadings relied on are in regard to misrepresentation, fraud, willful default, undue influence or of the same nature. So long as the plaint discloses some cause of action which requires determination by the Court, the mere fact that in the opinion of the Judge the plaintiff may not succeed can not be a ground for rejection of the plaint. In the present case, the averments made in the plaint, as has been noticed by us, do disclose the cause of action and, therefore, the High Court has rightly said that the powers under Order 7 Rule 11 of the Code can not be exercised for rejection of the suit filed by the plaintiffappellants."
11. From the perusal of the plaint it has transpired, prima facie, that the CS No. 77/11 page no. 7 of 8 suit property is not a benami property but even if the objection raised by the defendants for rejection of the plaint allegedly it is a benami transaction and as such hit by Section 4 & 5 of the Act is a question of fact which needs evidence for adjudication. At this stage it cannot be said that plaint is hit by provisions u/s 4 of Benami Transaction Act, hence application is dismissed. Needless to say that nothing stated herein shall tantamount to any expression of my opinion on the merits of the case. This application is disposed of accordingly.
Announced in the Open Court (VIJAY KUMAR DAHIYA) On this 08.11.2011 ADJII : ROHINI : DELHI CS No. 77/11 page no. 8 of 8