MONMOTHO NATH Vs. BEPIN BEHARY

JUDGEMENT

(1.) This appeal arises out of a suit for recovery of possession of some land on a declaration of the plaintiff's title thereto. The allegations on which the plaintiff brought the suit were briefly these: The land belonged to one Preonath Lahiri, the father of defendants 1 to 3 and defendants 17 and 18. In the year 1300 B.S. Preonath sold the land to one Promothonath Ghose. Promotho possessed the land for a short period after which he sold the same to the plaintiff, in the year 1302 B.S. After the purchase the land was for some time under the direct management of the plaintiff but as the plaintiff was an inhabitant of Calcutta it was not very convenient for him to look after the property and so he entrusted the management of the property to Preonath who was no other than his sister's husband. After Preonath's death his sons were placed in charge of the property and they continued managing the property for a pretty long term of years. Preonath's sons subsequently colluded with the landlord's gomasta and caused the rent of the holding to fall into arrears. The holding was sold in execution of a rent decree and purchased by Preonath's sons in the name of their servant Sibu Santra, The plaintiff, when he came to hear of the sale, applied for setting it aside and succeeded in doing so. Thereafter, he brought a suit for rent against defendants 4 to 16 who were the tenants on the land in suit and in this suit the tenants-defendants denied the plaintiff's right, with the result that the plaintiff had to withdraw the suit.

(2.) On these allegations, the plaintiff brought a suit for a declaration of his right to the disputed land and for recovery of possession against the sons of Preonath and for khas possession as against the tenant and defendants on the ground that they had forfeited their rights as tenants by their denial of the plaintiff's title. The substantial defence that was set up in the case was that the plaintiff was nothing but benamdar of Preonath and that it was Preonath and not the plaintiff who was the real owner of the property in dispute. The Court of first instance dismissed, the plaintiff's suit. On appeal the lower appellate Court held that the plaintiff was not the benamdar of Preonath, but was the real purchaser and owner of he property in dispute and on that finding the learned Additional District Judge gave a decree to the plaintiff as against the sons of Preonath but refused the plaintiff's prayer for khas possession as against the tenants defendants on the ground that nothing, had been shown to substantiate the allegation that the tenants-defendants had forfeited their tenancy in any way Defendants 1 to 3 have appealed to this Court.

(3.) The learned advocate for the appellants first of all contended that the lower appellate Court was wrong in law when it came to the finding that the plaintiff was the real owner and not the benamdar of Preonath. We do not think there is much substance in this contention. The plaintiff was the person in whose name the property was purchased and if the defendants wanted to establish that plaintiff was nothing but a benamdar the onus to substantiate that point was on them. The learned Additional District Judge has fully discussed all the circumstances that were present in the case apparently in support of the defence case on the point that after a full discussion of those circumstances he came to the conclusion that those circumstances were of no avail to the defendants. Over and above that, the learned Additional District Judge has found as a fact that it was from the plaintiff and not from Preonath that the purchase money came. In these circumstances, we do not think it can reasonably be contended for a moment that there is any error of law when the learned Additional District Judge came to the finding that the plaintiff was the real purchaser and the real owner of the property and not the benamdar of Preonath as the defence wanted to establish.