1. The three main arguments advanced in support of this appeal are first that the plaintiff was debarred from bringing the suit out of which this appeal has arisen, because it had been decided finally as between him and the appellant Shankar Kurmi, in a revenue Court of competent jurisdiction by a decision of 12th April 1915 subsequently affirmed on appeal that in respect of the property in dispute in the present proceedings the plaintiff was a zamindar and the appellant, Shankar Kurmi, his perpetual lessee. The second point argued was that the Court should not enforce the agreement which it was asked to enforce by the plaintiff-respondent as such an agreement was fraudulent and intended to defeat the provisions of the Tenancy Act. The third point was that the suit was barred by limitation.
2. In respect of the first point, I find that there can be no question of res judicata because on the view I hold the revenue Court did not decide that the plaintiff-respondent was the zamindar and that the appellant Shankar was his lessee of the property now in dispute. The suit before the revenue Court was a suit brought by the plaintiff-respondent for the determination of the amount of rent to be paid by third parties on the allegation that these third parties were his exproprietary tenants. They replied that they did not base their tenancy upon an agreement with the plaintiff-respondent, but that they were holding from Shankar, who was a tenant of the plaintiff-respondent. Shankar intervened and took the same position. Now, it was not necessary for the purpose of the decision of that suit to determine whether the lease which it is now asserted was a benami transaction (the plaintiff-respondent being the actual lessee and Shankar having been put forward to represent him) was or was not such a transaction, for if the plaintiff-respondent had then established that the lease was really in his own favour, though nominally in favour of Shankar, he would not have advanced his case against the persons against whom he wished to have exproprietary rents fixed, because it would have been obvious that, if he had put forward Shankar as representing him, Shankar had a perfect right to lease to the then defendants. I do not consider that the question now before this Court was before the revenue Court, and could have been before the revenue Court. This is a very different matter from laying down that the revenue Court is not competent to decide matters falling with in its cognizance under the provisions of Section 167, Tenancy Act. My point here is that the revenue Court did not decide anything bearing upon this particular point. In respect of the second point as to the suit being barred, because the arrangement was fraudulent, it is not open to Shankar to raise that plea and I would accordingly repel it.
3. In respect of the third point, the suit appears to me to be clearly a suit by a person out of possession for possession. The real remedy sought is to recover the property from the benamidar, who after having agreed to hold it on behalf of the actual owner, is asserting a contrary title and refusing to give the actual owner the benefit of the property. I would therefore dismiss this appeal with costs including in this court-fees on the higher scale.
4. I concur. I would prefer to rest my decision on the second plea on the ground taken by this Court in its decision on a case arising out of a similar lease, namely, that no fraud was actually committed. The vendors never claimed their exproprietary rights and consequently these rights lapsed.
5. The appeal is dismissed with costs including in this Court fees on the higher scale.