BISHUN DAYAL Vs. KESHO PRASAD

JUDGEMENT

(1.) THIS appeal is brought by the plaintiff from a decree dated August 11, 1936, of the High Court at Allahabad, which affirmed the decision (June 30, 1932), of the Subordinate Judge at Banda dismissing the suit. The only question which now arises is as to the maintainability of the suit in view of Section 66 of the Code of Civil Procedure:- 66.-(1) No suit shall be maintained against any person claiming title under a purchase certified by the Court in such manner as may be prescribed on the ground that the purchase was made on behalf of the plaintiff or on behalf of someone through whom the plaintiff claims. (2) Nothing in this section shall bar a suit to obtain a declaration that the name of any purchaser certified as aforesaid was inserted in the certificate fraudulently or without the consent of the real purchaser, or interfere with the right of a third person to proceed against that property, though obstensibly sold to the certified purchaser, on the ground that it is liable to satisfy a claim of such third person against the real owner.

(2.) THE plaint was filed on January 8, 1932, and the case made thereby was as follows. One Ram Dayal died in 1910 leaving as his heiress Mst. Ram Piari Kuer, his widow. On her death in 1922 the plaintiff succeeded to his property as reversioner according to the Hindu law. THE first defendant Kesho Prasad was nephew to Ram Dayal, and on July 20, 1907, at a Court sale at which the village of Mamsi Khurd was sold in execution, he had bid therefor on behalf of himself, his brother Kedar Nath and Ram Dayal. THE bid was accepted and the sale confirmed, but the sale certificate was made out in the sole name of Kesho Prasad, and his name alone was recorded in the revenue record (khewat). THE property was held by Ram Dayal and the defendants jointly, Ram Dayal and afterwards his widow receiving their share of the net profits from Kesho Prasad, who was himself the lambardar of the village. But after the death of the widow in 1922 the defendants stopped paying any part of the profits and denied the right of the plaintiff. THE relief prayed for by the plaint was a decree for joint possession of one-half of the village and mesne profits. This was on the footing that Ram Dayal had a one-half interest, the other half belonging to Kesho Prasad either alone or jointly with his brother Kedar Nath.

(3.) ON this appeal learned counsel for the appellant has confined his argument to maintaining that the plaint if properly interpreted did raise a case based upon possession subsequent to the auction purchase, which possession had continued for sufficient time to bar the rights of Kesho Prasad under Article 142 or 144 of the Limitation Act and to extinguish his title under Section 28 thereof. Learned counsel did not dispute that Section 66 excluded any claim of the plaintiff based upon an averment that the auction purchase had been made by Kesho Prasad on account of Ram Dayal as well as on his own account. Their Lordships have therefore no occasion to discuss the various points emerging from the careful study made in the High Court of the case law upon the section. It is sufficient to say that their examination of the plaint leads them to agree with the High Court in holding that the only case pleaded by the plaintiff was that Ram Dayal derived his right to half of the village from the auction purchase having been made in part on his behalf by Kesho Prasad. No case independent of this purchase and basing title upon subsequent possession is traceable in the memorandum of appeal to the High Court or in the grounds of appeal to His Majesty. In these circumstances their Lordships will humbly advise His Majesty that this appeal should be dismissed. The appellant must pay the costs of the first respondent, who alone has appeared to contest the appeal.