BALAI CHAND MONDAL Vs. NIBARAN CHANDRA DASS

JUDGEMENT

(1.) The question involved in this appeal is one of some difficulty and the decided eases brought to our notice certainly do not make its decision easier.

(2.) The material facts are the following : The plaintiff, Nibaran Chandra Das, was the owner of a one-third share in a certain occupancy holding and the remaining two-thirds share belonged to defendant 1. On 24-6-1910, the plaintiff executed a deed of sale in favour of his nephews, pro forma defendants 2 and 3, by which he purported to sell to them his share in the holding for a consideration of Rs. 50 and the deed was in due course registered. Thereafter defendant 1 made an application for preemption before the third Munsif at Alipore. The plaintiff and the pro forma defendants were all made parties to the proceeding which was contested by the plaintiff, with pro forma defendant 2 supporting him by his evidence on behalf of both himself and his brother. The ground taken by the plaintiff was that there could be no question of pre- emption, inasmuch as there had been no sale at all and the Kabala executed by him was a benami document, intended only to put away the property beyond the reach of his creditors. The learned Munsif entertained this defence, took evidence on the matter and ultimately dismissed the application for preemption on the finding that the sale was a benami transaction. On appeal by defendant 1, this decision was reversed by the First Additional Subordinate Judge of Alipore who held 4hat there had been a real transfer and on that finding allowed the application for pre-emption. The learned Judge gave his decision on 16-4-1941.

(3.) The present suit was brought on 31-5-1941, in the same Court before which the application for pre-emption had been filed, and, in it the plaintiff asked for a declaration that the kabala executed by him on 24-6-1940 was a benami document by which his title had not passed. Certain further reliefs were also asked for, such as recovery of possession in case defendant 1 dispossessed him during the pendency of the suit and an injunction restraining him from so doing. The defence of defendant 1 was that the kabala was not a benami document and that, in any event, the suit was barred by the principle of res judicata on account of the decision in the pre-emption proceeding. Pro forma defendant 2 again deposed in favour of the plaintiff.