BHUSAN CHANDRA DAS Vs. MANUJENDRA DUTT CHOWDURY

JUDGEMENT

(1.) The plaintiff in T.S. No. 89 sued for declaration of title to and joint khas possession in a 7 annas, 17 gandas share of a tank alleging purchase by him from Ardha and Pasupati Chandra Eay Choudhury by a kobala on 18 November 1929. He claimed to have been in possession of the tank through a tenant, and alleged that the defendant 1 Manujendra had set up title and had had his name recorded in the settlement records. Defendant 1 contested the suit and claimed title by virtue of a kobala dated 13 March 1930 from the same vendors, Ardha and Pasupati. One Gosto, a tenant of the plaintiff, also sued the same defendants for his tenancy right in title Suit No. 88. The suits were decided by the same judgment. The trial Court held that the plaintiff was the benamidar of his vendors Ardha and Pasupati, but that he was entitled to maintain a suit as such a benamidar; it found against the title of defendant 1 and decreed Suit No. 89 accordingly. It dismissed the tenants's Suit No. 88. The plaintiff then appealed in T.A. No. 375 of 1934 claiming a decree for a full title in his own right and impugning the decision that he was a mere benamidar. Defendant 1 appealed in T.A. No. 397 of 1934 claiming title under his kobala. The tenant also appealed. The lower Appellate Court upheld the finding that the plaintiff was a benamidar and dismissed his appeal; it also found that defendant 1 had title, and allowed his appeal. The tenant's appeal was dismissed. The plaintiff now prefers this second appeal.

(2.) Two points are argued for the plaintiff-appellant, first that his appeal against the Munsiff's finding that he was a benamidar was not properly considered by the lower Appellate Court and secondly that as regards the finding of the triat Court that defendant 1 had acquired no title to the tank, the judgment of the lower Appellate Court is not a proper judgment of reversal. For the respondents it is pointed out that it was not the case of any party to the suit that the plaintiff was a benamidar for Ardha and Pasupati, the plaintiff's case was that he acquired title by his kobala, while the defendants case was that the document was a nullity and represented a bogus transaction. Hence, if the Court finds that the plaintiff has no title as claimed by him, his suit should be dismissed; there being concurrent findings of the two Courts that the plaintiff has failed to prove his title based on his kobala this Court should not interfere. On the other hand, it is clear that if the plaintiff is found to have title then no title could in any event pass to defendant 1 by his later kobala and on this view it is not necessary to consider the question as to the finding that defendant 1 had acquired no title, and the learned advocate for the respondents was not heard on the point.

(3.) We are of opinion that the contention of the respondents is sound, and that the decision of the case turns solely on the question whether the plaintiff's kobala is held to be a genuine document as alleged by him. The case in Gur Narayan V/s. Sheolal Singh (1918) 5 A.I.R. P.C. 140 has been cited to support the appellant's contention that he may have a decree as was granted by the trial Court even if he be held to be a benamidar, but the facts here are quite different from the facts of that case. There the transfer was by a third party to one Mahesh Lai, and the defendants there alleged that Mahesh Lai was a benamidar for one Rafiuddin, and hence could not maintain the suit as one of the plaintiffs. This contention was overruled. In the present case it is nobody's contention that the plaintiff is a benamidar for his vendors; the plaintiff himself denies it; the vendors are parties to the suit, but do not appear and the defendant contends that the plaintiff's document is a nullity. The Court must choose between these two cases, there is nothing to found a finding that the plaintiff was a benamidar for the vendors. Thus, if the plaintiff fails in his case his suit must be dismissed on the ground that he has no title. If he succeeds he must clearly obtain a decree, as the sub. sequent transaction of sale by his vendors could not then affect his title. Whether the plaintiff fails or succeeds it is not necessary to decide as to the effect of the disputed, kaifiyat in the defendant's document. The learned Munsif discussed in detail the transaction of sale to the plaintiff, and held that it was not a real transaction. The learned Subordinate Judge in appeal has also dealt with the question at some length, though admittedly he has nothing new to say on the subject. It is urged that his dealing with the matter is not adequate. We have considered the judgments on this subject, and also the evidence and we are unable to agree with this contention; we are of opinion that the question of fact is finally decided against the plaintiff, and that he has acquired no title by his kobala. His suit must therefore be dismissed for the reasons given above.