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2020 (3) TMI 588 - HC - Benami PropertyBenami Property Transactions - Prohibition of the right to recover property held benami - trial Court while rejecting the alleged application filed under Order 7 Rule 11 of CPC has held that the suit as framed is not barred by the provision prescribed under Section 4 of the Act 1988 - Whether the property in question has been purchased by the Plaintiff from her Stridhan i.e. known source of income or not ? - HELD THAT - What has been observed by the trial Court by rejecting the application filed under Order 7 Rule 11 of CPC that the suit property appears to have been purchased by the Plaintiff for the benefit of the family members and therefore the suit as framed is not barred by virtue of Section 4 of the Act 1988. The trial Court has thus virtually given his finding that the alleged transaction does not come within the purview of benami transaction. It however appears that such an observation has been made without considering the fact as to whether it was purchased by the Plaintiff from her known source of income i.e. Stridhan in order to arrive at such a conclusion. It is therefore rather premature to hold that the suit is not barred by the provision prescribed under Section 4 of the Act 1988. Question whether a particular sale is a benami or not is largely one of fact and that cannot be decided in absence of evidence and in order to get the exclusive ownership the Plaintiff has to establish the said fact by way of cogent and reliable evidence that it was acquired from her Stridhan and the alleged transaction does not fall within the ambit of benami transaction defined under Section 2(9) of the Act 1988 and only after its establishment it could be held that the suit is not barred under Section 4 (1) of the Act 1988. However without considering all these facts the trial Court in a cursory manner has opined that the suit is not barred by the said provision. The finding of the trial Court therefore in so far as the suit cannot be held to be hit or barred by Section 4 of the Act 1988 in such a pre-matured stage is liable to be and is hereby set aside. From perusal of the aforesaid provision it is clear that the Court is vested with the discretion under this Order to deal with an issue of law which it may try as a preliminary issue if it relates to the jurisdiction of the Court or is a bar to the suit created for the time being in force. Obviously this provision would apply after issues are struck i.e. after written statement is filed and this is the principle which has been laid down by the Supreme Court in the matter of Kuldeep Singh Pathania vs. Bikram Singh Jaryal 2017 (1) TMI 1708 - SUPREME COURT whereby while dealing with the aforesaid provision - Revision petition is disposed of with the aforesaid observations
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