JADUNANDAN SINGH Vs. BALDEO SINGH

JUDGEMENT

(1.) This is an appeal by the substituted plaintiffs against the judgment of a single Judge of this Court in Second Appeal affirming the concurrent decisions of the two lower courts and dismissing the plaintiffs' suit for declaration of title and recovery of possession. The plaintiffs' case was that through one Ramdeo Singh (the father of the respondent-defendants) they instituted a title suit No. 57 of 1937 against third parties in which there was a decree for costs by the High Court in favour of the said Ramdeo Singh. That decree was also duly executed by the plaintiffs in the name of the ostensible decree-holder, namely, Ramdeo Singh, and the disputed properties were also purchased in court auction in his name. Delivery of possession was also taken and according to the plaintiffs they remained in possession for several years. During the lifetime of Ramdeo Singh there was no trouble, but after his death his sons (the defendant-respondents) got their own names mutated in respect of the disputed property in the khasmahal and also succeeded in dispossessing the plaintiffs on 12-2-1954. Hence the suit was brought for declaration of title and recovery of possession.

(2.) On the very allegations made in the plaint, all the three Courts rightly had that the suit was not maintainable in view of the express bar imposed by Section 66(1) of the Code of Civil Procedure. The plaintiffs' case all along was that Ramdeo Singh was their benamdar, the decree obtained by him against the previous owners of the property was in reality their own decree and that as the decree stood in his name the execution proceedings were also conducted in his name and the property was also purchased in court auction in his name, but the plaintiffs were the real purchasers and they also remained in possession until dispossessed by the sons of Ramdeo Singh in 1954. In terms Section 60(1) of the Code of Civil Procedure is attracted and the Courts, therefore, held that the suit was not maintainable.

(3.) Mr. Lalnarain Sinha for the appellants was fully conscious of his uphill task but wanted to make a subtle distinction between an auction purchase made by a benamdar who was not a decree-holder on the one hand and an auction purchase made by a benamdar who was the decree-holder on the other. He urged, relying upon some observation in Mt. Bibi Kaniz Ayesha v. Mojibul Hassan Khan, AIR 1942 Pat 230 that inasmuch as the plaintiffs had beneficial interest in the decree which was obtained by them by merely using the name of the said Ramdeo Singh, they were entitled to the property subsequently purchased by the decree-holder on the principle of constructive trust and that the fact that the purchase was made benami in the name of Ramdeo Singh should not materially affect this position. He could, however, cite no authority in support of this contention and wanted this Court to make a new departure from the settled law that has prevailed all along.