BISHAN DAYAL Vs. KESHO PRASAD

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for joint possession of one half share in certain property which were admittedly sold at auction and purchased in the name of Kesho Prasad, defendant No 1. The plaintiff is the son of a daughter of Ram Dayal who was Kesho Prasad's uncle. It is admitted by both the parties that Ram Dayal and Kesho Prasad were separate and did not form members of a joint Hindu family. The plaintiffs case as put forward in the plaint was that the property was put up for sale on several occasions and bids were made, but they were not ultimately accepted as the price offered was considered to be inadequate; but finally the highest bid was accepted on July 20, 1907 on which occasion Ram Dayal was absent and Kesho Prasad, defendant No. 1, called out bids on his own behalf and on behalf of Ram Dayal, and that the said sale was confirmed. (Paragraph 5 of the plaint).

(2.) His case was that the said property was jointly held by Ram Dayal and the defendants as a family property (not joint family property) and that after the death of Ram Dayal, his widow Musammat Ram Piari Kure was in possession and defendant No. 1, who was the lambardor of the village went on paying profits to the real owners The plaintiff chimed joint possession over one half of the property together with mesne profits for there years. The defendant denied that Ram Dayal was the joint owner of this property and asserted that he and his brother were the sole purchase and the only proprietor. There was a further denial of the allegation that Ram Dayal and after him his widow were in possession of the property or received any profits and there was a further plea that the plaintiff's claim was barred by Section 66, Civil Procedure Code. There was, however, no case put forward by the plaintiff in the plaint suggesting that subsequent to the auction purchase of 1907 either Ram Dayal or List widow had by advise possession for over 12 years acquired title to this property. The suit was not based on any such adverse title claimed independently of the eights alleged to have been acquired by the auction purchase of 1907. The learned Subordinate Judge has dismissed the plaintiff's claim deciding these main issues against the plaintiff. The main point argued before us is the question of law whether the claim is or is not barred by Section 66, Civil Procedure Code. Now that section consists of two parts. Sub- section (1) provides that; No suit shall be maintained against any person claiming title under a purchase certified by the Court in such manner as may be prescribed on the ground that the purchase was made on behalf of the plaintiff or eh behalf of some one through whom the plaintiff claims.

(3.) Accordingly, if a suit is brought on the ground that the purchase is made on behalf of the plaintiff or on behalf of some one through whom he claims and is maintained against a person who claims title under a purchase certified by the Court in the manner prescribed, the suit is not maintainable and must be dismissed. Sub-section (2) provides that: Nothing in this section shall bar a suit to obtain a declaration that the name of any purchase certified as aforesaid was inserted in the certificate fraudulently or without the consent of the real purchase, etc.