RAM PEARILAL KHANDELWAL Vs. SURAJMAL KHANDELWAL

JUDGEMENT

(1.) This is a second appeal by the plaintiff from a decision of the learned Subordinate Judge of Dhanabad, dated the 23rd of January, 1948, affirming a decision of the learned Munsif of Dhanbad, dated the 26th of April, 1947, in a suit for ejectment of a tenant of on a notice to quit. The suit was framed as one under Section 7, Clause (XI) (cc) of the Court-fees Act, and Court-fees were paid on the annual rental plus the amount of arrears claimed. The case of the appellant was that his father had purchased a house in Dhanbad from the father of defendants 1 to 3 and two other persons by a registered sale deed dated the 9th of October, 1922. It was alleged that defendants 1 to 3 and their father took the house as monthly tenants on a rent of Rs. 16/- per month. Defendants 1 to 3 did not pay rent in spite of demand, and on the 6th of January, 1945 a notice to quit was served on defendants 1 to 3. The appellant then brought the suit for ejectment and for recovery of arrears of rent for 35 months plus interest. The total claim was laid at Rs. 600/- and Court-fees were paid on that claim plus the annual rental of the house. The defence of defendants 1 to 3 was a denial of the appellant's title. It was alleged that the father of defendants 1 to 3 and his two nephews used to carry on business jointly and had business transactions with the appellant's father. As the father of defendants 1 to 3 and his nephews were heavily indebted a bogus or benami sale deed was executed in the name of the appellant's father in order to save the house from creditors. It was further alleged that defendants 1 to 3 always remained in possession as owners and never parted with possession. On separation the house fell to the share of defendants 1 to 3 who alleged that they were full owners of the house.

(2.) The learned Munsif who dealt with the suit in the first instance decided only one issue, namely, the issue as to the alleged 'benami' nature of the sale deed of the 9th of October, 1922. The learned Munsif found that the sale deed was benami and without consideration. On that finding he dismissed the suit. The learned Subordinate Judge, on appeal, affirmed that finding, and held that there was no relationship of landlord and tenant between the appellant on one side and defendants 1 to 3 on the other.

(3.) Learned Counsel for the appellant has raised several points before me. His principal point is that the learned Munsif, in whose Court the suit was filed, had no jurisdiction to decide the question of title. Therefore, permission should be given to the appellant to withdraw from the suit with liberty to bring a properly constituted suit for a declaration of title and recovery of possession. Learned Counsel has placed reliance on the decision in 'Pramatha Nath v. Amiraddi', 24 Cal W N 151 where a similar course was adopted. It was there pointed out as follows: