LAWS(PVC)-1945-4-36

RAMCHANDRA SINGH Vs. MTBIBI KHODAIJAIUL KUBRA

Decided On April 27, 1945
RAMCHANDRA SINGH Appellant
V/S
MTBIBI KHODAIJAIUL KUBRA Respondents

JUDGEMENT

(1.) This is a plaintiffs appeal from the decision of the learned Additional Subordinate Judge of Gaya, dismissing their suit for a declaration that the plaint properties belong to them, and that the pro forma defendants (defendants 7 to 9) have no interest therein and, finally, that the order of attachment after dismissal of the plaintiffs claim under Order 21, Rule 58, Civil P. C, was illegal and inoperative. There was also a prayer for a permanent injunction against the principal defendants, restraining them from getting the properties sold in Execution Case No. 19 of 1938.

(2.) The plaintiffs instituted the suit on the following allegations : The plaintiffs are related to defendant 7 who is their sister's husband. The plaintiffs "advisedly" executed two sale deeds, dated 18 September 1925, and 19 August 1930, in respect of the properties described in the schedule attached to the plaint. Those deeds were mere benami transactions, and, therefore, no consideration passed therefor. The principal defendants had a decree against the pro forma defendants, and they put the same into execution which was numbered as Execution case No. 19 of 1938 in the Court of the 3 Subordinate Judge at Gaya. The decree-holders aforesaid got the properties in suit attached and prayed for their sale for realization of the decree against the pro forma defendants. The plaintiffs preferred an objection under Order 21, Rule 58, Civil P. C, which was registered as Misc. Case No. 65 of 1938 and was ultimately dismissed on 22 September, 1938. Being aggrieved by the said order of dismissal of their claim case, the plaintiffs instituted the suit for the reliefs aforesaid.

(3.) The suit was contested by the principal defendants who denied that the sale deeds aforesaid in favour of their judgment-debtors were benami transactions. On the other hand, the defendants contended that they were real transactions for good consideration followed by possession in favour of the pro forma defendants. They also alleged that the pro forma defendants were in collusion with the plaintiffs who filed the objection under Order 21, Rule 58 on wrong and false allegations in which case defendant 7 stated that a deed of relinquishment in respect of the said properties had been executed by him. It was finally contended that the decision in the claim case was correctly given after taking oral and documentary evidence. The defendants also pleaded that the suit was barred by limitation.