- (1.) S. U. Khan, J. At the time of admission of this Second Appeal on 4-10-1980 following order was passed : "after hearing Counsel for the appellant, I am satisfied that grounds No. 1, 2, 4 and 7 raise substantial question of law. Accordingly, I admit the appeal. "
(2.) THE substantial questions of law numbers 1, 2, 4 and 7 mentioned in the memo of appeal after the grounds of appeal on which appeal was admitted are quoted below : (1) Whether the pith and substance of the plaint involves declaration of Bhumidhari right, hence the plaintiff's suit is barred by Section 331 of U. P. Zamindari Abolition and Land Reforms Act and the civil Court has no jurisdiction to entertain the suit? (2) Whether the plaintiff's suit is barred by Section 49 of U. P. Consolidation of Holdings Act, 1950? (4) Whether the necessary ingredients of Benami transaction were neither pleaded nor proved by the plaintiff? (7) Whether the plaintiff's suit is barred by Sections 38 and 41 of Specific Relief Act? Bar of Section 49 of U. P. C. H. Act (Second question of law) I propose to consider the aforesaid substantial question of law first. This is defendant's second appeal. Plaintiff original respondent No. 1 Sita Ram since deceased and survived by legal representatives instituted OS No. 395 of 1968 against appellant Satya Narain who was defendant No. 1 and respondent No. 2 Ram Sevak who was defendant No. 2 in the suit. According to the plaint allegations, sale-deed dated 16-8-1960 executed by Ram Sevak defendant respondent No. 2 in favour of Satya Narain defendant No. 1/appellant was benami and in fact plaintiff original respondent No. 1 was the real owner of the property in dispute which was in the form of agricultural land. The suit was dismissed by Munsif Shahganj, Jaunpur. Against the said judgment and decree plaintiff Sita Ram filed civil appeal No. 48 of 1976. Ist Additional District Judge, Jaunpur through judgment and decree dated 16-7-1980, allowed the appeal, set-aside the judgment and decree passed by the trial Court and decreed the suit and restrained the respondent No. 1 in the said appeal i. e. Satya Narain from interfering in the possession of plaintiff over the land in dispute.
(3.) IN the plaint the relief claimed was for permanent prohibitory injunction restraining the defendants from interfering in the possession of the plaintiff over the disputed plot. An alternative relief was also prayed for a direction to the defendant to execute sale-deed of the disputed agricultural plots in favour of the plaintiff for Re. 1/ -. Further case of the plaintiff was that in an earlier suit being suit No. 19 of 1958 filed by plaintiff Sita Ram against the same defendants one Dubri Pandey started doing pairvi hence the defendants of the said suit (who were also the defendants in the instant suit) promised to help the plaintiff and on the advice of plaintiff's advocate it was decided that defendants of the said suit should execute a sham transfer deed in favour of a person of plaintiff's confidence and the said suit was got dismissed. In order to defeat the alleged evil intention of Dubri Pandey and in pursuance of the said arrangement sale- deed was executed by Ram Sevak in favour of Satya Narain. The least said about the morality and legality of such arrangement the better. The parliament realising the quantum of dishonesty involved in benami transactions prohibited the same in the year 1988. However, the Benami Transactions (Prohibition) Act, 1988 is not retrospective hence this case will have to be decided on the basis of principles pertaining to benami transactions prevailing at the relevant time.;