Ram Prasanna Sharma, J
1. This first appeal filed under Section 96 of the Code of Civil Procedure, 1908 is preferred against the order/decree dated 15- 1-2019 passed by the
First Additional Judge to the Court of First Additional District Judge, Durg (CG) in Civil Suit No. 47-A/2018 wherein the said court rejected the plaint
under Order 7 Rule 11(d) of the Code of Civil Procedure, 1908 on the ground that the suit is barred by The Benami Transactions (Prohibition) Act,
1988 (for short, the Act, 1988"").
2. Appellant/plaintiff herein is son of late Vishambharlal Sonkar. One sale deed was executed in favour of respondent No.1/ defendant namely Vijay
Kumar on 25-3-1997 by Natthu for house situated in nazul land sheet No.30-C plot No.41 area 798 sq.ft., situated at Amapura, Tahsil and District
Durg for cash consideration of Rs.1,17,200/-.
3. It is pleaded on behalf of the appellant that actually this property was purchased out of income of his mother namely late Bisahin Bai and father late
Vishambharlal Sonkar, but respondent No.1 Vijay Kumar executed sale deed in his favour and again property was transferred to respondents No. 2
and 3 by respondent No.1. It is alleged that in the sale deed it is mentioned that respondent No.1 Vijay Kumar is adopted son of late Vishambharlal
Sonkar and late Bisahin Bai, but his adoption was declared illegal by the court of Second Additional Judge to the Court of First Civil Judge, Class-I in
Civil Suit No.39-A/2009 vide judgment/decree dated 2-6-2018. The appellant sought that the sale deed shall be declared void and for restraining
respondents from interfering with the said property.
4. The core issue for consideration of this court is whether the suit filed by the appellant is maintainable or not. Admittedly, sale deed was executed in
favour of respondent No.1 Vijay Kumar on 25-3-1997. As per pleading of the appellant, the transaction was benami transaction.
5. Section 4(1) of the The Benami Transactions (Prohibition) Act 1988 defines benami transaction and property which reads as under:
4 (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"".
6. In the present case, Bisahin Bai and Vishambharlal Sonkar did not file any suit against respondent No.1 during their life time. The suit was filed
before the trial Court on 29-8-2018. The sale deed executed in favour of respondent No.1 was remained as it is till 2018. The cause of action as
shown in the plaint arose on 5- 11-2016 when respondent No.1 executed sale deed in favour of respondents No. 2 and 3. When sale deed executed on
25-3-1997 has not been challenged for 21 years, it is misconceived that cause of action arose on 5-11-2016 on execution of second sale deed,
therefore, no cause of action arose on the said date and the plaint ought to have been rejected as per Order 7 Rule 11 (a) of the Code of Civil
Procedure 1908i.
7. The plaint is based on benami transaction and as per Section 4(1) of the Act, 1988 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, therefore, present suit was not maintainable as per Order 7 Rule 11 (d) of the CPC.
8. In view of the above, present appeal is not maintainable and same is dismissed at motion stage itself.
