IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Revision No.2197 of 2007
Nutan Mishra, Daughter of late Shailendra Nath Thakur,
wife of Sanjiv Kumar Mishra, resident of Village
Gosaidaspur, P.O. + P.S. Nathnagar, District- Bhagalpur
----Defendant/Petitioner.
Versus
1. Smt.Geeta Devi, wife of Sri Bindeshwari Thakur,
resident of Village- Kauwa Koli Lane, P.O.+P.S.
Nathnagar, District-Bhagalpur
---- Plaintiff/Opposite Party.
2. Most. Nirmala Devi, widow of late Shailendra Nath
Thakur.
3. Smt. Punam
4. Kumari Babloo
5. Kumari Newla
6. Kumari Shailani
7. Shiv Kumar Thakur, daughters and son of late
Shailendra Nath Thakur, resident of Champanagar, P.O.
Champanagar, P.S. Champanagar.
8. Asha Thakur, daughter of late Shailednra Nath Thakur,
wife of Anirudh Prasad Jha, all at present resident of
Village Sheopur, Near Cinema Hall, P.O.+ P.S. Godda,
District-Godda-Jharkhand
---- Defendant/Opposite Parties.
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5. 18.10.2011 Heard Mr. Ranjan Kumar Dubey for the
petitioner, and Dr. Manoj Kumar for respondent no.1.
Defendant no.8 of Title Suit No. 175 of 1988 has preferred
this civil revision application under the provisions of
Section 115 of the Civil Procedure Code, and challenges
the order dated 16.8.2007, passed by the learned IInd
Munsif, Bhagalpur, whereby he has rejected the application
filed by the present petitioner under the provisions of Order
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14, Rule 2, read with Order 7 Rule 11(d), of the Civil
Procedure Code, whereby he had made the prayer that the
question of maintainability of the suit may be decided as a
preliminary issue.
While assailing the validity of the impugned
order, learned counsel for the petitioner submits that, on
the own showing of the plaintiff, it is evident that he is
seeking enforcement of a benami transaction which is
prohibited by Section 4 of the Benami Transactions
(Prohibition) Act, 1988 ( hereinafter referred to as ‘the
Act’). In his submission, therefore, the present suit is not
maintainable in view of section 4 of the Act. The
contention is stated only to be rejected. Section 4 of the Act
prohibits a benami transaction, it does not bar a suit with
respect to a benamini transaction, whether or not a
transaction is a benami transaction, or the rights of the
benamidar, can be adjudicated by the civil court of
competent jurisdiction. It is open to the civil court to
declare that the transaction in question is a benami
transaction, can not be enforced in favour of the real
owner, and the title now vests in the ostensible owner. In
other words, a benami transaction is prohibited and
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unenforceable in view of section 4 of the Act, not a suit
with respect to such a transaction. Law is well settled that
the suit is the basic remedy for the citizen of this country
for adjudication of civil rights and liabilities. The Act does
not create any specialized forum for adjudication of a suit
under the Act. The civil court is the only forum to decide
matters relating to alleged benami transactions. We entirely
agree with the order of the learned court below.
The civil revision application is dismissed.
Vinay/ ( S. K. Katriar, J.)