PIRAMANAYAGAM PILLAI Vs. ALWAR NAICKER

JUDGEMENT

(1.) THE point that the decrees of the lower Courts cannot be supported in view of the express provisions of the first part of Section 317 of the Civil P. C. was not taken in the Courts below or in the memorandum of appeal to this Court. Assuming it is open to the appellants in these circumstances to take this point in second appeal, on the authority of THEyyavalam V/s. Kochan (1897) I.L.R. 21 M. p. 7 the first part of the section does not apply since the present suit is not against the certified purchaser. As regards Exhibit 4, it is no doubt a piece of evidence which suggests that the original purchase by Sundaram Pillai was not benami, but the District Judge came to the conclusion that, notwithstanding this piece of evidence, the original purchase by Sundaram Pillai was benami on behalf of the plaintiff's predecessor in title. This is a finding of fact.

(2.) THE second appeal is dismissed with costs.