BANARSI DAS Vs. MTBHAWANI KUER

JUDGEMENT

(1.) This is an appeal by one Banarsi Das who was defendant 1 in the Court below and who is aggrieved by the concurrent decisions of the learned Subordinate Judge and of the learned District Judge of Gaja, by which they have decreed the suit of the plaintiff which was instituted for a declaration that notwithstanding a certain certificate sale, his title in the property was not affected in the following circumstances.

(2.) The plaintiff obtained a decree on the basis of a handnote against the heirs of Ram Prasad for about Rs. 20,000 and attached in execution 7 annas interest of village Sugaon which is the property in dispute. He himself purchased the property on 6 September 1933, in the execution sale. In the meantime the original owners of this village, namely, the heirs of Ram Prasad, who were his judgment- debtors, made deliberate default in payment of cess and a certificate was issued to realise the dues from the certificate debtors on 9 January 1933; and in the sale which was held on 8 July of the same year one Tauqir Ahmad (defendant 15) purchased the property for a sum of Rs. 125. On 29 January 1934, the plaintiff applied to the Certificate Department that he should be added as a party as the sale was fraudulent and that he did not know of this before; but that application was rejected on 14 February of the same year and the certificate sale was confirmed on 20 February 1934. In the meantime before the sale was confirmed Tauqir Ahmad sold the property to defendant 1 for Rs. 250. He is the appellant before this Court. The plaintiff then instituted the suit giving rise to this appeal on 13 February 1936.

(3.) The principal question of fact which arose for deoision in the Courts below was whether the sale was a good sale and whether Tauqir Ahmad and the appellant were benamidars for the original certificate-debtors. The Courts below have concurrently held that defendant 1 was a benamidar for the certificate-debtors, namely, the heirs of Ram Prasad who were the judgment-debtors of the plaintiff. The learned District Judge gives his finding in these words: "There can be no doubt that the learned Subordinate Judge was correct in coming to the conclusion that defendant 1 in taking the conveyance of the property in suit from defendant 15, Tauqir Aamad, was acting not on his behalf but as a mere agent on behalf of defendants 2 to 13." The learned District Judge felt some difficulty at one stage of the argument as to whether defendant 15 can be held to be a benamidar for defendants 2 to 13 but having further considered the matter and especially the conduct of Tauqir Ahmad in conveying so valuable a property as this to the defendant for a sum of Rs. 250, he felt that it was incapable of explanation except on the assumption that there was a previous arrangement between defendants 2 to 13 and Tauqir Ahmad. He, therefore, agreed with the learned Subordinate Judge that the whole sale was brought about by the deliberate default of defendants 2 to 13 and that they adopted this contrivance to defeat the rights of the plaintiff in the execution of his decree and that defendant 15 was a party to this fraud.