SURENDRAKUMAR CHAUDHURY Vs. GANGACHANDRA CHAUDHURY

JUDGEMENT

(1.) This is an appeal by the plaintiffs in a suit for declaration of title to and recovery of possession of a 9 annas share into shikmi taluks described in the schedule to the plaint. The plaintiffs case was that, in 1906, Hridaytara, from whom the plaintiffs purchased the property in suit, was a young widow and Ganga-sundari was her deceased husband's aunt and had been appointed her guardian by the District Judge under the Guardians and Wards Act; that, in that year, 1906, Gangasundari purchased the property in suit in her own name but the plaintiffs case is that the purchase? was made in benami for Hridaytara with Hridaytara's money; that, further, in 1912, when Gangasundari was leaving the place and was going a way to Benares, she transferred the property to her son-in-law, defendant 1, and that, since then, defendant 1 really held, the property in trust for Hridaytara. But, in the year before the suit, which was instituted in 1928, defendant 1 denied the title of Hridaytara and refused to make over possession, whereupon she transferred the property to the plaintiffs, who instituted the present suit. There were two main issues in the case: (1) Whether Gangasundari was the benamidar for Hridaytara or was she herself the owner of the property in suit; and (2) whether the suit was barred by limitation. On the first issue, the trial Court found that the title deeds of the property came from the custody of the plaintiffs and on a consideration of the same, as well as other evidence, the Court came to the conclusion that Gangasundari was the benamidar of Hridaytara and had purchased the property on account of Hridaytara. On issue 2, the trial Court found that the possession of defendant 1 was adverse to Hridaytara from 1912 and the suit was, therefore, barred by limitation.

(2.) In appeal by the plaintiffs, the learned Subordinate Judge found both the issues against the plaintiffs and dismissed the appeal. Mr. Rupendra-kumar Mitra for the appellants, urges that the learned Subordinate Judge committed an error in law in using in evidence against the plaintiffs a compromise decree in Suit No. 10 of 1930 and that, in doing so, he violated the provisions of Order 41, Rule 27, Civil P.C. It appears that, some time after the-decree of the first Court, there was another suit pending in another Court between the parties and, in that suit on a certain date after the decree of the present suit, the parties filed a compromise petition, wherein the present plaintiffs admitted the title of defendant 1 in the property in suit. A. decree was passed in that suit according to the compromise. This compromise decree was produced by the defendant as a piece of evidence before the appellate Court. The plaintiffs objected on various grounds to the reception of this evidence. The Court postponed the decision of the matter until the judgment. In the judgment the learned Subordinate Judge came to the conclusion on the evidence that it was not established that defendant 1 held the property in the benami or in trust for Hridaytara and that his possession was, in fact, adverse to her. After that finding, he proceeded as follows: There has, moreover, been produced at the hearing of the appeal on behalf of respondent defendant 1, a certified copy of a compromise decree supported by an affidavit to indicate that the plaintiff-appellant 1, and the other plaintiff, appellant 2's father, Uday, noticed above, have lately admitted under that decree the title of defendant 1 in the disputed properties in suit No. 10 of 1930 of a local Munsif's Court relating to certain lands of the disputed shikmis.

(3.) Further down in the judgment, the learned Subordinate Judge proceeds: In view of all the above stubborn facts and other circumstances, it is idle to contend on behalf of the appellants that the respondent, defendant 1, had been only a trustee for the plaintiffs vendor Hridaytara and the Court is not favourably influenced by the production from their custody of the alleged benami kabala of 1906 and the sale certificate relating to the disputed properties.