Murari Mohan Dutt, J. - (1.) This is a defendants' appeal against the order dated May 23, 1984 of the Tenth Court of Additional District Judge, Alipore, setting aside the order no. 22 dated June 6, 1983, of the First Court of Minsif at Alipore, rejection the plaint filed by the respondent no.1 registered as Title Suit No. 484 of 1981/218 of 1983. By the impugned order the lower appellate court sent the case back on remand to the learned Munsif for trial on merits.
(2.) The suit has been filled by the plaintiff/respondent no.1 for a declaration of title, recovery of possession and other relief's on the footing, inter alia, that he is the real owner of the disputed property which stands in the benami of his nephew, Kali Kinkar Mitra, the defendant no. 2. At this stage, it is necessary to refer to the provisions of section 281A of the Income-tax Act, 1961. Section 281A provides as follows: "281A.(1) No suit to enforce any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be instituted in any court by or on behalf of a person (hereafter in this section referred to as the claimant) claiming to be the real owner of suh property unless, - a) The income, if any, from such property has een disclosed in any return of income furnished by the claimant under this Act: or b) Such property has been disclosed in any return of net wealth furnished by the claimant under the Wealth-tax Act, 1957; Or c) Notice in the prescribed form and containing the prescribed particulars in respect of the property has been given by the claimant to the Income-tax Officer. (2) The Income-tax officer shall on application made by any person in the prescribed manner and on payment of the prescribed fees, issue for the purposes of a suit referred to in sub - section (1), relevant extracts from the return furnished by such person under this act or the Wealth-Tax act, 1957, or a certified copy of any notice given by such person under clause (c)of sub-section (1), within fourteen days from the date of receipt of the application therefore. (3) This section shall not apply to any suit of a value not exceeding two thousand rupees which is tried by, - (a) A Court of small Causes constituted under the presidency small cause Courts Act, 1882, or the provincial small Cause Courts Act, 1887; or (b) A court invested with the jurisdiction of a Court of small causes by or under any enactment for the time being in force, in the exercise of such jurisdiction".
(3.) It was contended before the learned Munsif on behalf of the defendant / appellants that as the plaintiff-respondent No. 1 did not file a certified copy of the notice required to be given prior to the institution of the suit, the suit was barred by the provision of section 281A. It may be stated here that in the plaint there is a categorical statement that the plaintiff has issued a notice to the Income-Tax officer in respect of the disputed property in accordance with section 281A on July 20, 1981.;