- (1.) This revision petition is directed against the order of the trial Court dated May 23, 1989, whereby the application under Order 1 Rule 10, Code of Civil Procedure (hereinafter called the Code) on behalf of Har Narain, who claimed himself to be the real owner and purchaser of the land, in dispute, in a pre-emption suit was dismissed.
(2.) The said application was opposed by the plaintiff on the ground that the applicant had no locus standi to file the present application and to be impleaded as a party in the presence of the vendees-defendants in whose favour the sale was made."The learned trial Court dismissed the said application in views of the provisions of section 4 of the Benami Transactions (Prohibition) Act, 1988 (hereinafter called the Act), Which reads as under :- "Prohibition of the right to recover property held benami.- (1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property. (2) No defence based on any right in respect of any property held be name whether against the person against whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property. (3) Nothing in this section shall apply - (a) where the person in whose name the property is held is a copacrener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family, or (b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacaty."
(3.) The learned counsel for the petitioner submitted that at this stage, this question could not be gone into because the defendants themselves admitted that the real owner was their father Har Narain and, therefore, the question could only be gone into if Har Narain is allowed to be made a party under Order 1 Rule 10 of the Code. The learned counsel further submitted that the said provisions do not bar the taking of such a plea when the person in whose favour the property was purchased does not contest the same. The learned counsel also referred to a Division Bench judgment of this Court in Dina Ram v. Rama Nand, 1979 PunLJ 26wherein the scope of section 281-A of the Income Tax Act, was considered, and the application under Order 1 Rule 10 of the Code in a pre-emption suit was allowed.;