`'-.` +, 6.7.200 2. 20.7.2004 lN THE HIGH COURT OF SIKKIM OF]DEF] SHEET Writ Petition (C) Pj\RSURAM Paul)izAL Versus pe\NORAT[I pOuDVAL Order with Signature No.12 of 2004 Petitioner / Appellant Bespondent Shri N. a. Kharga. learned Counsel for the petitioner is directed to produce a copy of the judgment rendered in Civil Suit No.21 of 2000. Put up on 20.7.2004 for admission. R. K. R#, Chief Just.ice N:g1:*i, The petitioner is the defendant in T.S.No.6 of 2003 in the Court of Civil LJudge (East) at Gangtok. The respondent is the plaintiff in the said suit. The petitioner prayed the trial Judge to frame the following issue :- Whether the suit is barred by the provisions of the Benani Transactions (Prohibition) Act, 1988. Vide order dated 12.3.2004, the trial Judge rejected the prayer because the aforesaid issue had been finally heard and decided between the same parties in respect of the same disputed property in Civil Suit No.21 of 2000. In this writ petition, the validity of the said order has been challenged by the Office Note as to action (.if any) taken on Ord'er \.U Order with Signature -.---. Office Note as to action (if any) taken on Order petitioner. We have heard Shri N. a. Kharga, learn Counsel for the` petitioner. It is an admitted fact that the petitioner h filed Civil Suit No.21 of 2000 against the prese respondent in the Court .of Civil Judge (Eas Gangtok for declaration of title, injunction and oth reliefs. The disputed property in the said suit is t subject matter of the present suit. By judgme dated 24.7.2000, tpe aforesaid suit, 21 of 2000, w dismissed. The petitioner filed Civil Appeal No.8 2000 against the decree. The` District Judge judgment dated 16.4.2001 dismissed the appe Thereafter, the pctitioner filed Second Appeal in th C6-u`rt which was dismissed. SLP filed before t `Apex`CQulrt met with the same fate. One of t issues framed in that suit was as follows :- Whether by virtue of ``the provisions of `t Benani Transactions (Prghibition)Act, 1988 t defendarit `is debarred from claiming any right ov ¥ `` -. -i , , the suit l'and ? The.trial Judge decided the issue by holdi '-: *` ~,,\ as follows `:.- Therefore since it is admitted position that plaintiff is the son of t defendan`t, and in the absence of any other evidenc I find it under Sub-.section 3(b) section 4 of t Benami Transactions (Prohibition) Act 1988, t defendant is not barred from claiming the s property." In appeal .the learned District Judge record his finding in the matter as follows :- +.1 No. of Order Order with ` Signatur,e " .................... Therefore, I find that contention of appellant/plaintiff is not tenable and the plea of the respondent/defendant that his contention is saved by exception clause (3)(b) of section 4 of Benami Transaction Act, 1988 is a valid proposition in law and cannot be rejected ................. " In view of what has been stated above, we have no doubt that in the previous suit between the same parties, the issue in question has already been decided. The disputed property of that suit is also the subject matter of the present suit. The finding recorded in the previous suit has reached rinality. Therefore, the learned trial Judge rightly refused to frame the very issue which has already been decided between trie parties. For the reasons aforesaid, we do not find any merit in the writ petition which is accordingly dismissed. No costs. ( R. K. Chiof €ce` Office Note as to action (if any) taken on Order