Hemant Kumar Srivastava JUDGMENT
Hemant Kumar Srivastava, J.
1. This petition under Order 47 Rule 1 of the CPC has been filed on behalf of the petitioner against the order dated 15.9.2017 passed in Civil Revision no. 59/2015.
2. Opposite party filed Title suit no. 183/2012 against the petitioner in respect of disputed land for declaration that the petitioner is Farzidar and Benamidar of disputed land and also for declaration of his right, title and possession over the suit land. The petitioner appeared in Title suit no. 183/2012 and filed petition under Order VII rule 11 read with section 151 of the CPC praying therein for rejection of plaint of the aforesaid Title suit no. 183/2012 on the ground that the aforesaid title suit is hit by section 4 (2) of the Benami Transactions (Prohibition) Act, 1988. The aforesaid petition filed under Order VII rule 11 CPC was rejected by the concerned court vide order dated 01.05.2015 which was challenged by the petitioner before this court by filing Civil Revision no. 59/2015. However, the aforesaid Civil Revision no. 59/2015 was, too, dismissed vide order dated 15.9.2017 holding that the question as raised by the petitioner for rejection of the plaint could not be a ground for passing order under Order VII rule 11 CPC and the question could be decided only in course of trial after taking evidence of both parties. The petitioner, being aggrieved by the aforesaid order dated 15.9.2017 passed in Civil Revision no. 59/2015, has preferred this petition.
3. Learned counsel appearing for the petitioner submits that Title suit no. 183/2012 was apparently barred by section 4 (2) of the Benami Transactions (Prohibition) Act, 1988 as opposite party sought relief to declare the petitioner as Farzidar and benamidar of the disputed property and the aforesaid fact itself goes to show that the court has got no jurisdiction to give the aforesaid relief but while dismissing Civil Revision no. 59/2015, this court over-looked the above stated fact and, therefore, it is desirable to review the order dated 15.9.2017 passed in Civil Revision no. 59/2015. In support of his contentions, he refers several decisions such as 2003 (I) SCC 557, MANU/SC/0071/2004 : 2004 (3) SCC 137, 2006 (I) PLJR 160, AIR 1980 SC 722, MANU/SC/0751/2016 : 2016 (14) SCC 275, MANU/SC/8039/2006 : 2006 (4) SCC 78 and AIR 1996 SC 288.
4. On the other hand, learned counsel appearing for opposite party refutes the submissions advanced on behalf of the petitioner arguing that opposite party, specifically, pleaded in Title suit no. 183/2012 that he purchased the disputed land in the name of the petitioner who happens to be his wife out of love and affection and to save from ceiling proceeding and, therefore, the aforesaid fact can only be decided in course of trial. He, further, submits that the suit is not hit by section 4 (2) of the Benami Transactions (Prohibition) Act, 1988. He, further, submits that section