TMI Blog2008 (12) TMI 806X X X X Extracts X X X X X X X X Extracts X X X X ..... n the suit property by utilising his funds. Ever since the date of purchase, the plaintiff has been in peaceful possession and enjoyment of the suit property. The suit property has been leased out to the defendants. Though the sale deed dated 24.01.1994 stands in the name of the first defendant, the first defendant has no manner of right, title and interest over the suit property. The first defendant has been under the care and custody of the plaintiff at the time of execution of sale deed dated 24.01.1994. The suit property has been purchased in benami in the name of the first defendant. A flimsy dispute has arisen betwixt the plaintiff and first defendant. Taking advantage of the dispute that exists between the plaintiff and first defendant, the first defendant has claimed a novel right over the suit property and he has also threatened to sell the suit property. The defendants are enjoying the suit property as tenants within the meaning of Tamil Nadu Buildings (Lease and Rent Control) Act. The relationship of landlord and tenant exists betwixt the plaintiff and defendants. Under the said circumstances, the present suit has been instituted for the relief of perpetual injunction. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d he held suit property in that status, whether the conclusion drawn by the first appellate Court that the purchase and holding of property by defendant is exempted from the provisions of Benami Transactions Prohibition Act, is sustainable? 7. As agreed by the learned counsel appearing for both sides, the present second appeal is disposed of on merits at the stage of admission. 8. The present suit has been instituted for the relief of perpetual injunction mainly on the ground that the plaintiff has purchased the suit property by utilising his funds in the name of his son viz., the first defendant in benami and after purchase, he put up a construction and subsequently leased out the building which is in existence in the suit property to the defendants and the defendants are enjoying the same as the tenants of the plaintiff and the relationship of landlord and tenant is in existence between the plaintiff and defendants and now the first defendant has been making arrangements to alienate the suit property and he has also been making arrangements to collect rent from the second defendant. 9. It has been specifically contended on the side of the first defendant that the first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t property has been purchased by the plaintiff by using his funds in the name of his son viz., the first defendant for the sake of convenience in benami and the trial Court has erroneously dismissed the suit, but the first appellate Court has rightly decreed the suit and even though the present suit has been instituted only for the relief of permanent injunction, title can be decided incidentally and the first appellate Court has rightly done it and therefore, the Judgment and decree passed by the first appellate Court are not liable to be interfered with. 13. Basing upon the divergent submissions made by either counsel, the Court has to analyse under what circumstances in a suit for injunction, simpliciter title can be decided incidentally. 14. In the decision reported in 2008 AIR SCW 2692 (Anathula Sudhakar Vs. P.Buchi Reddy (dead) by L.Rs. Others), the Honourable Apex Court has culled out the following positions in regard to suits for prohibitory injunction under Section 38 of Specific Relief Act (47 of 1963) relating to immovable property: (a) Where a cloud is raised over plaintiff's title and he does not have possession a suit for declaration and possession, wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laintiff to a more comprehensive declaratory suit, depending upon the fact of the case. 15. From the close reading of the decision referred to earlier, the following aspects have become emerged. i) If there is a cloud with regard to title of the plaintiff, he ought to have filed a suit for declaration and possession and if title of the plaintiff is not in dispute and he is out of possession, he can very well file a suit for possession. ii) In a suit for bare injunction, the Court has to consider only possession and normally issue of title would not be directly and substantially in issue. The prayer for injunction will be decided with reference to possession and in a case of vacant site, issue of title is directly and substantially arises for consideration and without finding with regard to title, it will not be possible to decide possession. iii) In a suit for bare injunction, unless necessary pleadings and appropriate issue regarding title, title cannot be decided and further, if there is no sufficient pleading or if there is no issue relating to title, the Court will not investigate or examine or render a finding with regard to question of title in a suit for injuncti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... blished the alleged relationship of landlord and tenant. Since the plaintiff has not established the alleged relationship of landlord and tenant, automatically, the plaintiff is out of Court. 19. The first appellate Court has elaborately dealt with the plea of benami transaction and ultimately found that the plaintiff has purchased the suit property under Ex.A1 in the name of his son viz., the first defendant in benami. It has already been pointed out that the trial Court has not framed any issue with regard to title. Without framing any issue, the trial Court has decided the alleged benami transaction and the first appellate Court has also decided the alleged benami transaction and ultimately found that the plaintiff has purchased the suit property by utilising his funds by benami in the name of the first defendant. The first appellate Court has invoked section 4 (3)(a)of the Benami Transactions (Prohibition) Act, 1988. 20. In fact, this Court has closely perused the entire averments made in the plaint. In the plaint, it has been simply stated that at the time of purchasing suit property under Ex.A1, the first defendant has attained only 19 years of age and he has had no ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said Act is not applicable. 23. In the instant case, even at the risk of jarring repetition, the Court would like to point out that the entire plaint simply proceeds on the basis that the plaintiff has purchased the suit property under Ex.A1 by utilising his funds in the name of the first defendant in benami. The plaint does not say that both the plaintiff and first defendant are coparceners at the time of execution of Ex.A1 and for the benefit of coparcenary, the suit property under Ex.A1 has been purchased in the name of the first defendant. Therefore, Section 4 (3)(a) of the Benami Transactions (Prohibition) Act, 1988 has no application to the present case. For invoking the provision of the said section, there must be necessary pleadings and proof to the effect that the concerned suit property has been purchased in the name of a coparcener for the benefit of coparcenary. But the first appellate Court without considering the provision of Section 4(3)(a) of the said Act properly and also without looking into the averments made in the plaint, has erroneously come to the conclusion that the plaintiff is entitled to get the benefits available under section 4 (3)(a) of the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fendant, Ex.B1 has been filed. Ex.B1 is a photocopy of the partnership deed dated 12.12.1990, wherein it has been specifically stated that the first defendant is also one of the partners of the firm mentioned in Ex.B1. The suit property has been purchased on 24.01.1994 under Ex.A1 for a sum of ₹ 82,300/-. Since the first defendant has become one of the partners of the firm mentioned in Ex.B1 in the year 1990, definitely he would have purchased the suit property under Ex.A1 by utilising his funds. On that ground also the contention of the plaintiff can easily be rejected. The first appellate Court has granted a decree in favour of the plaintiff on the ground that Ex.A1 has been produced on the side of the plaintiff. Of course, it is true that Ex.A1 has been produced on the side of the plaintiff. Ex.A1 is original sale deed. The plaintiff is the father of the first defendant. Since the plaintiff is the father of the first defendant, he might have taken Ex.A1 and subsequently produced before the Court and that itself is not sufficient to hold that the suit property has been purchased by the plaintiff by utilising his funds in the name of the first defendant in benami. In a case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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