SRIMATI KAUSALYA SUNDARI Vs. NABIN CHANDRA KAR

JUDGEMENT

(1.) THIS appeal is preferred by the plaintiff against the judgment of the learned Subordinate Judge of Chittagong, dated the 18th January 1917, affirming the decision of the Officiating Additional Munsif of Patiya. The plaintiff sued in ejectment. She claimed as the purchaser in execution of a money-decree and the interest she alleged she bought was the interest of the heirs of one Jonab Ali. Therefore, the plaintiff got by her purchase in execution only such right, title and interest as Jonab Ali or his heirs had in the property. It is found, and that finding is binding on us, that Jonab Ali was not in fact the owner of the land and that the document under which it is said that he took an interest was in fact a benami document. Therefore the plaintiff, if the facts are not open to the defendants in this case, has clearly got no title. It is said, however, that this matter was litigated before between the present defendants and the heirs of Jonab Ali and that, therefore, a case of res judicata has arisen and the present defendants are precluded by the former judgment from setting up the case that the document purporting to vest the property in Jonab Ali was, in fact, a benami transaction. As the learned Judges in the lower Courts have pointed out quite clearly, that was not a point necessary for the decision of the former suit. The former suit was brought by the present defendants to recover the land in Dag No. 1151 and the finding of the Court was that the land sued for was not a portion of Dag No. 1151. It is quite true that in the Appellate Court the learned Judge remarked that the document purporting to transfer the property to Jonab Ali was not a benami one. Bat no issue was raised on that question in the primary Court and no ground of appeal was taken by the appellant in the lower Appellate Court. In that view of the case, it is quite clear that the present defendants are not precluded from setting up what was the true nature of the document purporting to transfer this property to Jonab Ali. The learned Judge of the lower Appellate Court has also made a finding in the present case that the plaintiff and her predecessors-in-title have been out of possession for more than twelve years and that the possession of the defendants has been adverse. In that view of the case, it is quite clear that the present appeal cannot succeed. There is no reason to dissent from the conclusion arrived at by the learned Judge of the lower Appellate Court. The present appeal, therefore, fails and must be dismissed with costs.