^i /f^ 4P.^- hUGHCOURT OF CHHATTISGARH AT BILASPUR FSB: Hon'ble Mr.T.P.Sharma.J.I Ciyil Revision No. 58/2008 APPLiCANT Non applicant No.1 Defendant No.2 VERSUS NON APPUCANTS 1. PLAINTIFF Kasmuddin Ansari aged about 50 years son of Mohd. Ismile, Caste Musalman, occupation unemployed, resident of village ' Baisagarwara, Baikunthpur, District Koria, CG. Firoza Shahin D/o Sayyed Asgar, W/o Kamuddin, aged about 48 years, occupation Service R/o village Baikunthrpur (Khuthanpara) Tahsil Baikunthpur, District Kori; State of Chhattisgarh through Collector, Koria, Baikunthpur, CG. Mr. D.N. prajapati counsel forthe applicant. Mr. Manoj Paranjape counsel for the non-applicant No.1. Mr. Ajay Dwivedi Dy.GAforthe non-applicant No.2/State. CIVIL REVISION UNDER SECTION 115 OF THE CODEOF CIVIL PROCEDURE (ORAUO RD E R (03.03.2009) This revision petition is directed against the order dated 7.1.2008 passed by Civil Judge Class II Baikunthpur Distt. Koria in Civil Suit No. 5-A/2008 whereby learned Civil JudgeClass II has negatived the issue relating {o Benami transaction and arrived at the conclusion that the suit is pending and not barred under Section 4 of the Benami Transactions (Prohibition) Act, 1988 (for short the Act). 2. The order is challenged ,on the ground that the Court below has not considered the specific pleading of the non-applicant/plaintiff that the transaction was Benami, and therefore, committed an illegality. 3. Heard counsel for the parties and perused the copy of plaint and written statement available on record. 4. Counsel for the applicant submits that the non-applicanVplaintiff in paragraph 6 of the plaint has specifically stated that defendant No.l/applicant is -2- a Benami Purchaser and non-applicant No.1 is the real owner (afNr^t ^.l ^Tpft ^TT t, mN^R ^TT cn^f ^t I). He submits that when the entire pleading of the plaint shows that the non-applicant No.1 purchased the property in the name of the applicant, thesame is a Benami transaction according to section 2 of the Act and non-applicant is not entitled to recover the property from the applicant in accordance with section 4 of the Act. 5. On the other hand counsel for the. non-applicant No.1 submits that the non-applicant No.1 has not pleaded that the applicant is the Benami purchaser and the non-applicant No.1 is the real owner of the property. Present non- applicant has pleaded in detail in her plaint that the applicant had played fraud by misusing his position and succeeded in getting thesale deed executed in his favour. She has also pleaded the ingredients offraud in paragraphs 3, 4 and 7 of the plaint. On the basis ofthe pleading of the non-applicant, the Court below has decided the issue of Benami transaction in negative which does not suffer from any illegality. 6. It is not disputed that the applicant and the non-applicant are husband and wife. Presently, the property is in the name of the applicant. According to the pleadings of the plaint, the non-applicant has spent money and purchased the property through her husband but instead ofexecuting the sale deed in the name of the non-applicant, he succeeded in executing the same in his name by fraud. Section 2 (a) ofthe Act defines the Benam/'transaction which reads as under: "Benami transaction means any transaction in which property is transferred to one person for a consideration paid orprovided by another person;" Section 4 o the Act deals with prohibition of the right to recover property held benam/which reads 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 ofsuch property; (2) No defence based on any hght 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, claimor action by or on behalfof a person claiming to be the real owner of such property. (3) Nothing in this section shall apply, - L -3- (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 ofthe 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 forthe benefit of another person for whom he is a trustee towards whom he standsin such capacity." 7. In this case, in paragraph 6 of the plaint the plaintiff has pleaded that the applicant is the benami purchaser and the non-applicant is the realowner, with the explanation that by using his position and playing fraud he succeeded in executing the sale deed in his name. Non applicant has not only pleaded that the applicant is the benami purchaser and he purchased the property in his name. On the basis of the pleadings of the plaintiff, the court below has negatived the issue of benami transaction. 8. The Court below has not committed any illegality in negativing the issue of benami transaction. The order impugned being just and proper requires to be maintained. Accordingly, the revision being without substance is liable to be dismissed and it is hereby dismissed. No order as to cost. Sd/- T.P. Sharma Judge w