TINKORI GHOSE Vs. KAMAL KANTI GHOSE & ORS.

JUDGEMENT

(1.) This second appeal is at the instance of the Defendant No. 1 in a suit for partition brought by the Plaintiff-Respondents claiming 1/3rd share in the suit properties which were recorded in khatian Nos. 56 and 57, mouza Cheliama and described in the schedule to the plaint. Dolegobinda Ghose was the common ancestor of both parties. Dolegobinda had three sons, namely Shantiram, Tinkori and Prasanna. Kaminibala was the widow of Dolegobinda. The Plaintiffs were the successors-in-interest of Shantiram who died after Dolegobinda's demise. Tinkori and Prasanna brought a previous partition suit in respect of some of the properties left by Dolegobinda. But the properties recorded in khatian Nos. 56 and 57, mouza Cheliama, were not obtained in the plaint schedule of the previous partition suit. The lands included in khatian No. 56 were purchased in the name of Kaminibala, the wife of Dolegobinda, in a private sale. The trial Court and the lower appellate Court upon consideration of the evidence have found that the said property was acquired by Dolegobinda in the benami of his wife Kaminibala. Therefore, the said property was liable to be partitioned amongst the Plaintiffs and the Defendants of the present suit. The trial Court and the lower appellate Court have also believed the Plaintiff's case that Dolegobinda in the name of his son Tinkori had auction-purchased the properties recorded in khatian No. 57 and that Tinkori was a benamdar of his father Dolegobinda. Both the Courts of fact have found the said two items to be joint properties of the Plaintiffs and the Defendants. Accordingly, a preliminary decree of partition declaring the Plaintiffs' rd share in both the items of property has been passed in the Plaintiffs' favour. The lower appellate Court has upheld the said decree. Hence, this second appeal.

(2.) Both the trial Court and the lower appellate Court have considered the evidence adduced by the parties and have applied correct legal tests for determining whether Kaminibala was a benamdar of his husband Dolegobinda in respect of khatian No. 56 and whether Tinkori was his father's benamdar in respect of khatian No. 57. Therefore, these findings of fact, are not open to challenge in second appeal. Mr. Barun Kumar Roy Chowdhury, learned Advocate for the Appellant, has submitted that Sec. 66 of the Code of Civil Procedure was a bar to the maintainability of the instant suit in respect of khatian No. 57. The Plaintiff-Respondents were precluded from claiming title in the said khatian No. 57 on the ground that the auction-purchase in the name of Tinkori was really on behalf of his father Dolegobinda through whom the Plaintiffs claimed 1/3rd interest.

(3.) A copy of the sale certificate in the name of Tinkori Babu was exhibited in the instant suit. The said sale certificate dated Sept. 29, 1916, was issued by the Deputy Collector under Sec. 11 of Bengal Rent Recovery (Under Tenures) Act, 1865 and not under the Code of Civil Procedure, 1908.