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2018 (3) TMI 1391 - BOMBAY HIGH COURTWhether the transfer of property is hit by the provisions of Benami Transactions (Prohibition) Act, 1988 - title of the property - fiduciary capacity - Whether the court below was justified in rejecting the application filed on behalf of defendant No.1 seeking rejection of plaint under Order 7 Rule 11 (d) of the Code of Civil Procedure? Held that: - The property was held in fiduciary capacity - Whether the provisions of the Benami Transactions (Prohibition) Act, 1988, would apply to a transaction of the year 1972 is another matter, but, in view of pleadings in the suit filed by respondent No.1, it cannot be said that this could be a ground for rejection of the plaint at the threshold. It would certainly be a matter requiring evidence, particularly when the defendant No.1 would dispute the claim made by the respondent No.1 in the plaint. Thus, this ground also does not hold good and the court below was justified in holding in favour of the respondent in that regard. The court below committed a grave error in holding that since the defendant No.1 had not filed a suit for declaration of title, it could not be said that cause of action for the respondent No.1 herein had arisen. The suit filed on 21.12.1994 was on the basis that the plaintiff therein was the absolute owner of the suit property and in exclusive possession thereof. There was no question of seeking declaration of title at that point in time. The court below has also erred in holding in the impugned order that the question of limitation in the facts of the present case would require evidence and that therefore, it could be decided only at the time of trial of the suit. As stated above, on an interpretation of the law pertaining to the accrual of the cause of action in the context of Article 58 of schedule to the Limitation Act, 1963, in the present case, on the face of record, it is evident that the suit filed on 20.11.2011 by the respondent No.1 was barred by limitation and that therefore, the application for rejection of plaint filed on behalf of the defendant No.1 (vendor of the applicants) deserved to be allowed on this count. The suit filed by respondent No.1 is barred by limitation and hence the plaint deserves to be rejected under Order 7 Rule 11 (d) of the C.P.C. and accordingly it is rejected - petition dismissed.
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