DINABANDHU GAN Vs. MAKIM SARDAR

JUDGEMENT

(1.) The plaintiff who is appellant before me, instituted a suit to recover four anna share of the rent from defendant 1, Makim Sardar, who is respondent 1 before me. His case is that the remaining defendants Chandra Kumar Gan and others who are respondents 2 to 6 are the landlords of the remaining twelve anna share. The plaintiff came to Court with the case that he, Barada Prosad Gan, Chandra Kumar Gan and Jogendra Kumar Gan inducted defendant 1 as tenant on the land and that thereafter defendant 1 executed in favour of himself, the aforesaid Barada, Chandra Kumar and Jogendra a Kabuliat on 21 September 1909. Chandra Kumar and Jogendra are pro forma defendants in this suit and are respondents 2 and 3 in this appeal. Barada has no interest in the property, and it is admitted that his interest in the property has passed to the pro forma defendants. The defence that was taken was as follows: The defendant 1, said that the plaintiff was the benamidar of one Sarada Prosad Gan, whose son is Jatindra Gan, who now represents the interest of Sarada, that the defendant paid a portion of the rent claimed in the suit to the authorised agent of the plaintiff and the pro forma defendants, and that the remaining portion of the rent claimed in this suit to Jatindra who is the real owner according to this defendant. In this state of the pleadings a preliminary issue was raised as to whether defendant 1 could urge in this suit that Dinabandhu, the plaintiff, is not the real owner, and is the benamidar of Sarada and thereafter of Jatindra. Other issues were also raised one of them being: Is the defendant's plea of payment true? The learned Munsif decided all the issues in favour of the plaintiff and decreed the suit. In deciding the preliminary issue he held that defendant 1 could not raise the question in this case as to whether the plaintiff was the benamidar or the real owner in respect of the four anna share of the property claimed by him. The learned Munsif did not consider the question of benami.

(2.) He gives his reasons for not going into the said question. He says that in the Kabuliat as well as in the previous Amalnama by which the principal defendant was inducted on the land, the name of the plaintiff and not the name of his brother Sarada appeared, that is to say, defendant 1 had been inducted on the land by the plaintiff and therefore he held that he is estopped from questioning the plaintiff's right to receive rent. An appeal was taken to the learned District Judge. The learned District Judge has not considered the question as to whether the plaintiff inducted defendant 1 on the land as his tenant. He says that simply because a kabuliat has been executed in favour of the plaintiff, the defendant cannot be held to be estopped from denying the plaintiff's title and setting up the case that the plaintiff is the benamidar of Jatindra Gan to whom he paid a part of the rent claimed in the suit. The learned District Judge incidentally refers to the case of Kuppu Konan V/s. Thirugnama Sammandam Pillai (1908) 31 Mad 461, and holds that the principle of estoppel as formulated in Section 116, Evidence Act, can have no possible application when the defendant comes to Court with the case that the plaintiff suing him is the benamidar of a third party. I have to examine the correctness of the said decision. Having taken the said view the learned District Judge directed the learned Munsif to decide the two points on taking further evidence, viz., whether any payment was really made by defendant 1 to Jatindra or his Gomasta, and (2) whether Jatindra Gan was the real owner and the plaintiff a benamidar. In my judgment the learned District Judge was not right in remitting the two aforesaid points for decision by the Munsif, without recording a finding as to whether defendant 1 has been inducted on the land as tenant by the plaintiff. On that point the learned Munsif has recorded a finding and if the finding of the learned Munsif is correct, I am clearly of opinion that the learned District Judge was wrong in remitting the aforesaid two points for further consideration. If however the learned Munsif is wrong in his finding that the plaintiff inducted defendant 1 on the land, of course the learned Judge was right in asking the learned Munsif to record a finding on the two points aforesaid.

(3.) In any view of the case whatever may be the finding on the aforesaid questions, a further defence of defendant 1, viz., that he had paid a portion of the rent claimed to an authorized agent of the plaintiff and his co-sharers is to be considered. That point was considered by the learned Munsif who gave an adverse decision against the defendant. The said point was also not considered by the district Judge.