IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1328 of 2006 MOSMAT BRAHAMDEI @ BRAHMDEI DEVI Versus RAM CHANDRA SINGH & ANR With C.R. No.858 of 2007 MOSMAT BRAHAMDEI @ BRAHMDEI DEVI Versus RAM CHANDRA SINGH & ANR With C.R. No.1898 of 2007 MOST.BRAHAMDEI @ BRAHMDEI DEVI Versus RAM CHANDAR SINGH & ORS With C.R. No.1914 of 2007 MOST.BRAHAMDEI @ BRAHMDEI DEVI Versus RAM CHANDRA SINGH & ORS ----------- 5 3.12.2008 Heard Sri Ajit Kumar Ojha, learned counsel for the petitioner. For the reasons mentioned in I.A. No. 3299/2006 is allowed and the delay in filing of C.R. 1326/2006 is condoned. In the opinion of this Court, the Civil Revision No. 1328 of 2006 against an order dated 28.4.2006 in connection with police protection of Pleader Commissioner during course of measurement by him has become infructuous because the Pleader Commissioner had already visited the place, made the measurement and submitted his report in the court on 11.8.2005. Civil Revision No. 858 of 2007 is directed against the order dated 14.3.2007 confirming the aforesaid 2 report of the Pleader Commissioner dated 11.8.2005. In the opinion of this Court merely because the report of the Pleader Commissioner was confirmed that by itself cannot be the clinching evidence on any issue unless such report of the Pleader Commissioner is proved in course of his deposition and its evidentiary value is considered in the light of other admissible evidence of the parties. Infact, it would always be open for the petitioner to place her own evidence to meet any part of the report of the Pleader Commissioner which in her opinion is adverse to her interest. The grievance of the petitioner against the impugned order dated 18.6.2007 which has been assailed in the Civil Revision No. 1898 of 2007 is also misconceived because its direction for addition of party being based on a subsequent event arising out of a decree of Lok Adalat dated 26.8.2006 concerning the land in question was found necessary. The Court below therefore has not committed any jurisdictional error in allowing such prayer for impleadment of the parties. Similarly in Civil Revision No. 1914 of 2007, the challenge to that part of order dated 18.4.2007 allowing amendment in the plaint has no substance in as much as it is only the subsequent events emanating from the proceedings of the Lok Adalat and leading to a 3 judgment/decree dated 26.8.2006, which have been made part of the plaint originally filed in the year 2005. Such amendment being a routine matter and incapable of changing the nature of suit could not have been refused by the court below. In that view of the matter, all the aforementioned four civil revision applications filed at different point of time and at different stages have no merit and are accordingly dismissed. One thing, however which this Court would notice from perusal of the plaint is that the suit appears to be out and out for a perpetual injunction on the basis of the claim that the property which was acquired by the sale deed in the name of the father of the defendant- petitioner actually belonged to the plaintiff-opposite party. The story of disclaimer as introduced in the plaint by the plaintiff in the year 1972 and the suit having been filed in the year 2005 still would raise one question as to whether or not the claim which is being sought to be enforced by the plaintiff is one which is prohibited in law under Section 4 of the Benami Transactions (Prohibition) Act, 1988 (hereinafter to be referred to as ‘the Act’). Section 4 of the Act reads as follows:- 4. Prohibition of the right to recover property held benami. – (1) No suit, claim or 4 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 to 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 coparceners in the family; or (b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity. In that view of the matter, since the parties have already appeared and have filed their written statement, this Court would direct the Court below to frame the issues, if not framed till now and thereafter take up the issue of maintainability of the suit as a preliminary 5 issue and decide as to whether the suit is not barred in terms of Section 4 of the Act. With the aforementioned observations and directions, all the four civil revision applications stand dismissed. Rsh (Mihir Kumar Jha, J.)