SM RUPAI DEVI Vs. BAMDEB DAS

JUDGEMENT

(1.) This appeal is presented under the Letters Patent from the judgment of Reuben, J. (as he then was) in a second appeal.

(2.) The plaintiff Bamdeb Das brought the suit on the allegation that he was the 16 annas landlord or a chandna tenancy of which defendant 2 Bhramarbar Choudhuri was the recorded tenant. The plaintiff alleged that Bhramarbar Choudhuri had transferred the holding to his wife Rupai Devi defendant 1, without his consent. The plaintiff claimed that defendant 1 Rupai Devi was holding the land as a trespasser, and that Bhramarbar Choudhuri was liable to be ejected from the holding. The main ground of defence was that the transfer in question was not real but a 'benami' one which was made in order to save the holding from being sold in execution of a decree obtained against Bhramarbar. It was also contended on behalf of the defence that the tenancy was not chandaa at all, but was an occupancy holding which was transferable without the landlord's consent. The learned Munsif held that the tenancy was a chandna one and was not transferable without the landlord's consent. He further held that defendant 2 Bhramarbar ought not to be permitted to show that the transaction was 'benami' since fraud had been effected in the execution case. He accordingly decreed the suit in favour of the plaintiff. In appeal, the learned Subordinate Judge held that the onus was upon the plaintiff to show that the tenancy was not transferable; and the plaintiff had failed to discharge the onus. He also held that defendant 2 was not estopped from pleading that the transfer was 'benami'. He proceeded to consider the evidence on the point and found that the transfer was, in fact, 'benami'. He accordingly reversed the decree of the learned Munsif and dismissed the suit.

(3.) In second appeal, Reuben, J. was of the view that the defendants were estopped from raising the plea of 'benami' since they had practised fraud in the execution case and saved the chandna holding from being sold in satisfaction of the decree. The learned Judge further held that there was abandonment of the holding and the plaintiff was entitled to a decree for ejecting the defendants.