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2021 (8) TMI 245 - HC - Benami PropertyBenami Transaction - Prohibition of the right to recover property held benami - disputed joint family property - acquisitions by and in the name of a coparcener in a Hindu undivided family or the benefit of such coparceners in the family - HELD THAT:- The pleading of the plaintif Yakub Mohammad is that disputed property is a joint family property and appellants/defendants are his real brother but the disputed property is on his name and this dispute cannot be decided only by advancing argument while deciding the application under Order 7 Rule 11 of CPC. It is clear from order sheets that appellants/defendants did not file written statement and they had only filed an application under Order 7 Rule 11 of CPC. Hon'ble the Supreme Court has already held in Pawan Kumar [2019 (4) TMI 232 - SUPREME COURT] that the disputed questions cannot be decided at the time of considering an application filed under Order 7 Rule 11 CPC. Clause (d) of Rule 11 of Order 7 applies in those cases only where the statement made by the plaintif in the plaint, without any doubt or dispute shows that the suit is barred by any law in force. Lower appellate Court has rightly observed that the order of learned trail Court being not sustainable in the eye of law set-aside and remitted back the case to the trial Court for deciding afresh. The order of the learned appellate Court is based on proper appreciation of law laid down by Hon'ble Supreme Court in Pawan Kumar Vs. Babulal since Deceased Through Legal Representatives and Others which does not calls for interference by this Court.
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