SHEOSHANKARPRASAD Vs. MAHABIR PRASAD

JUDGEMENT

(1.) In this appeal by the plaintiff the only question for determination is whether the Additional District Judge of Gay a was right in holding that the suit of the plaintiff was barred under the provisions of Section 66, Civil P.C., in the following circumstances.

(2.) The property in dispute is 3 annas and 12 dams odd share in Mahal Rupau, tauzi No. 4382. In execution of a certificate for realisation of case against the proprietors, the property was purchased on 20-4-1931 by Mahabir Prasad alias Bakhori Lai, defendant 1, The Courts below have concurrently found that Mahabir Prasad was the benamidar but the real purchaser was Bipat Earn, the father of the plaintiffs and the pro forma defendant--he died in 1933. They have also found that ever since the delivery of possession, Bipat Ram and thereafter his sons continued in possession, i.e., the benamidar was not in possession for a single day and all the rent suits for the recovery of hak hazri from the usufructuary mortgagee, who was in possession of the property, were instituted by the plaintiffs and the pro forma defendant though in the name of the benamidar; they made all the pairvis and realised all the decrees after putting them into execution.

(3.) It has also been found, as is the plaintiff's case, that the plaintiffs and the pro forma defendant negotiated with Mahant Ramdhan Puri of Budhauli for the sale of the property together with the arrears of the hak hazris due from the usufructuary mortgagee, Munshi Deonath Sahay for 1947 Fasli, and the consideration was settled at Rs. 4383-12-0 and a sale deed was executed on 30-9-1940. The, sale deed was signed by defendant 1, Mahabir Prasad, as the executants, as the sale certificate stood in his name, but the plain, tiffs and the pro forma defendant also attested as marginal witnesses.