TMI Blog2000 (7) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... n the present case, we find, when possession was ordered, allowing the application under section 144 of the Civil Procedure Code, on March 4, 1988, there was no contest by the respondent. Thus, when the order is passed under Order 21, rule 35, formally restoring the possession it was not only consequential order to the order without contest, so any claim if at all stood satisfied prior to the Act coming into force. In any case it cannot be construed to be a claim or action taken after the Act came into force. Passing an order under Order 21, rule 35, is an act of the court, it is not an act by way of action or claim made by the appellant. What is barred is the making of a claim or action by the original owner. The appellant is the owner and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The short facts are that the disputed suit property was originally in the name of one Tulsi Bala. A part of this suit property lying in plot No. 615 was purchased in the name of Urmila Dassi who is the respondent before us and after the death of Tulsi Bala she became the sole heiress. Some time in 1952 in revisional settlement operation the property was recorded in the names of Anil Mani Dassi and Armila Dassi. Anil Mani Dassi on May 10, 1967, sold the entire suit property to Probodh Chandra Ghosh, the appellant before us, after getting the said suit property in partition. Dasarathi was amongst the other co-sharers and this property of Jadavpur was allotted to Urmila Bala exclusively. Immediately, after the aforesaid purchase by the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Transactions (Prohibition of the Right to Recover Property) Ordinance of 1988, came into force. On July, 20, 1988, a writ for restoration of possession to the appellant was issued under Order 21, rule 35. On July 30, 1988, possession was delivered to the appellant. This delivery of possession was challenged by the respondent, Urmila Dassi, before the Calcutta High Court. This revision was allowed and the order for delivery of possession to the appellant was set aside on the ground that the same is violative of the provision of section 2 of the aforesaid Ordinance which is section 4 of the Act. It is this order in revision, which is the subject-matter of challenge before us. It is interesting that both learned respondent are relying on the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oresaid decision further records that the operation of sub-section (1) of section 4 also includes past transactions where any right is acquired by any one as a real owner, in respect of the property held by a benamidar. This is highlighted with the illustration, namely, if a benami transaction has taken place in 1980 and a suit is filed in June, 1988, by the plaintiff claiming that he is a real owner of the property and the defendant is merely a benamidar then such a suit would not lie in view of section 4(1), this court in the said decision held : "With respect, the view taken that section 4(1) would apply even to such pending suits which were already filed and entertained prior to the date when the section came into force and which has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action by the appellant would not lie. We do not find any merit in this submission, What is to be seen in terms of section 4 is, whether the appellant has filed any suit, claim or action subsequent to the coming into operation of the present Act or not ? If the suit, claim or action was pending on the date this Act came into force, then it would continue to be adjudicated in accordance with law and the bar of section 4 would not be applicable. This leads us to find, what are the facts in the present case, whether the suit, claim or action has been filed subsequent to the coming into operation of the said Act or what was pending then. If it was pending, then the bar of section 4 would not apply. The facts as recorded above are, after the pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e are merely deciding, whether on the admitted facts, any claim, action or suit was pending or not or whether the appellant has filed any suit, claim or action after the Act came into force ? As we have recorded above the claim or action, if at all, which could be said to have been made by the appellant was when he filed an application under section 144 of the Civil Procedure Code, on April 17, 1986, which is prior to the Act coming into force. Even an order was passed allowing the same on March 4, 1988, which was prior to the said Ordinance coming into force. Merely restoring possession, subsequent to the said Act under Order 21, rule 35, would have no effect on the bar of section 4. Once it is undisputed that an application under section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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