MOIDIN BEARY Vs. MOHAMMAD BEARY

JUDGEMENT

(1.) This Second Appeal is by the plaintiff in a suit for recovery of possession of properties, with past and future mesne profits, on the basis of title.

(2.) The property was purchased in court sale in 1930 by the 4th defendant and taken delivery on 16-12-1931. On the allegation that the 4th defendant was only a benamidar for Adbulkhader Haji, plaintiff had taken an assignment of the property from the latter as per Ext. A3 dated 9-6-1943 and instituted this suit for recovery of possession from the defendants. The 3rd defendant contended that the 4th defendant was the real purchaser at the court sale and he has assigned his rights to the 2nd defendant as per Ext. B13, who assigned it to the 3rd defendant. The learned Munsiff repelled the contentions of the defendant and decreed the suit, finding that the 4th defendant was only a benamidar for Abdulkhader Haji. The learned Subordinate Judge, on appeal by the 3rd defendant, held that the plea of benami in court purchase is barred by S.66 of the Civil Procedure Code and that the plaintiff or his predecessors-in-interest had no possession of the suit properties at any time within 12 years prior to the institution of the suit, and therefore dismissed the suit. Hence the Second Appeal.

(3.) It is strenuously contended by the learned counsel for the appellant that the appeal in the court below was on 15-12-1953 dismissed on merits, but was restored to file on 12-3-1954 on application under O.41, R.19 CPC., that a restoration after disposal on merits was incompetent and that therefore the subsequent hearing and disposal of the appeal were beyond authority and void. It is however conceded that on 7-12-1953 when the appeal before the court below came up for hearing, the learned counsel for the appellant prayed for an adjournment, it was rejected, the appeal was at once taken for disposal and on 15-12-1953 the court entered judgment purporting to be on the merits of the case.