1. This is a first appeal from a decision dated 28th April 1931 of the learned Additional Subordinate Judge of Muttra. The suit was brought by one Mt. Asghari Begam and her daughter Mt. Rabia Khatun for a declaration that they and certain other defendants, who were described in the plaint as defendants of the third and fourth party, are the absolute owners of a certain mahal called the Kirpa Shankar mahal in a village called Shazadpur Gujar in the Muttra District. Of the defendants originally impleaded as defendants of the third party, Defendant 13, Irshad Husain Khan, died, and was succeeded by his mother Mt. Moti Begam, his widow Mt. Afsari Begam, and his sister Mt. Siddiqi Begam. There were three defendants of the fourth party; as regards them no change took place during the pendency of the suit. The facts are somewhat complicated but briefly stated they are as follows.
2. The property in question was originally owned by two men named Bijai Singh and Krishna. It was mortgaged by them to one Ayaz Khan. Afterwards Indar, a grandson of Krishna, on 14th February 1874 sold his share (2 biswansis) to one Kirpa Shankar, in 1875, by two agreements evidenced by documents dated respectively 6th November 1875 and 19th November 1875. The other descendants of Bijai Singh and Krishna entered into a somewhat curious agreement with Kirpa Shankar under which he was to redeem the whole property from Ayaz Khan and hold possession of it for a period of eight years, after which time he was to surrender to the descendants of Bijai Singh and Krishna a share of 4 biswas 9 biswansis that is to say, the whole of the 5 biswas of the mahal leas the 11 biswansis which he bad himself purchased from Indar. The mortgage was, in fact, redeemed by Kirpa Shankar, and entries were made in the ' Khewats' on the basis of the new situation which had come into existence. Kirpa Shankar, it appears, did not make over to the heirs of Bijai Singh and Krishna the above-mentioned share of 4 biswas and 9 biswansis at the expiration of the period of 8 years prescribed in the agreements of the year 1875, but on 20th September 1904, in execution of a decree held against him by one Kanhaiya Lal, the entire rights of Kirpa Shankar were put up to auction and were ostensibly purchased by one Mohammad Siddiq. This Mohammad Siddiq, who is now dead left two sons, Mohammad Munim and Mohammad Faruq, who are respectively defendants 11 and 10 in the present suit. According to the plaintiffs, Mohammad Siddiq was the general attorney of Ayaz Khan and his successors, and the purchase by him of the rights of Kirpa Shankar was, in' fact, made on behalf of Mohammad Ayaz Khan's son, Mohammad Ibrahim Khan. It should be mentioned that Mohammad Ibrahim Khan had a son Mohammad Mohsin. Mt. Asghari Begam, plaintiff 1 is the widow of Mohammad Mohsin, and plaintiff 2, Mt. Rabia Khatun is the daughter of Mohammad Mohsin and Mt. Asghari Begam. The defendants of the third party are descended from Hamid-uz-Zafar, son of Mt. Asghari Begam, and the defendants of the fourth party are the children of one Khan Bahadur Ashiq Ali Khan, who is related by marriage to the family of the plaintiffs. The learned Subordinate Judge took the view that it was not proved that Muhammad Siddiq was merely acting on behalf Md. Ibrahim Khan when he purchased the rights of Kirpa Shankar on 20th September 1904 and he accordingly dismissed the plaintiffs' suit with costs. It is contended before us that the finding on this point was not justified, and this has been one of the main points argued before us at the hearing of this appeal which is by the plaintiffs. Learned Counsel for the appellants has invited our attention to para. 8 of the written statement of the contesting defendants 6 and 9 who are descendants of Kirpa Shankar. He has also called our attention to para. 4 of the further pleas taken in that written statement Para. 8 runs as follows:
In para. 11 of the plaint only this much is admitted that Kanhaiya Lal had a decree against Munshi Kirpa Shankar, and in execution thereof the property was put to auction, but Mohammad Ibrahim did not purchase any rights of Munshi Kirpa Shankar, nor could he do so. All the proceedings regarding the auction sale, etc. were collusive and fictitious, and were taken by Mohammad Ibrahim, in order to cause loss to, and jeopardise the rights of Kirpa Shankar.
3. Paragraph 4 of the further pleas runs as follows:
Mohammad Ibrahim did not feel content with this much alone, but colluded with Kanhaiya Lal, who had a decree for a small sum of Rs. 131 against Munshi Kirpa Shankar and taking all proceedings secretly caused the property in dispute to be put to sale, and himself purchased it in the name of his 'Karinda,' as appears from the contents of para. 11 of the plaint. Mohammad Ibrahim took all these proceedings secretly in collusion with Kanhaiya Lal aforesaid in order to deprive him of the property in dispute, and those cannot in any way affect the rights of Munshi Kirpa Shankar. Mohammad Ibrahim was in possession of the property in dispute as a 'thekadar' (lessee). He was legally, morally and equitably bound to safeguard the rights of Munshi Kirpa Shankar. He was not in any way authorised to snatch the said property in this way. Besides this, if Mohammad Ibrahim paid any auction money, (which is not admitted), it was the money of Munshi Kirpa Shankar and he did not pay his personal money.
4. The contention is that in these two paragraphs the contesting defendants admitted that Mohammad Ibrahim Khan was the real purchaser on the occasion referred to, and that as between these contesting defendants and the plaintiffs that admission is conclusive for the purposes of the present suit. In that connection reference was made to a decision reported in Abdul Aziz v. Maryam Bibi 1926 25 ALJ 48. On the other side it was contended that the allegations made in para. 8 of the written statement do not constitute a clear admission on the part of these defendants that Mohammad Ibrahim Khan was the real purchaser, and as regards para. 4 of the further pleas it was contended that what the contesting defendants said in the earlier part of that paragraph was merely a reproduction of what was contained in para. 11 of the plaint. It cannot be said that in para. 8 of the written statement it was unequivocally admitted that Mohammad Ibrahim Khan was the real purchaser; in fact it was said: 'Mohammad Ibrahim did not purchase any rights of Munshi Kirpa Shankar nor could he do so.' In the earlier portion of para. 4 of the further pleas there is certainly what appears to be a definite admission on the part of the contesting defendants that Mohammad Ibrahim Khan was the real purchaser. At the end, however, it is equally clearly said that it is not admitted that Mohammad Ibrahim was the auction-purchaser, and that even if he did supply the money, it was not his own money. Our attention was not called to that part of the paragraph by either of the learned Counsel in the appeal. Our conclusion therefore is that the contents' of the written statement of the contesting defendants cannot be said to constitute a clear admission by them that the real purchaser of the rights of Kirpa Shankar was Mohammad Ibrahim Khan.
5. However, the sons of Mohammad Siddiq, the ostensible purchaser, have not contested the suit, and as a result of mutation proceedings on the basis of the purchase the name of Mohammad Ibrahim Khan was entered in the 'Khewat' (vide the order of the Revenue Court at Muttra, dated 24th July 1908, printed at p. 83 of the printed book). It is not denied that he and his successors have remained in possession ever since that time. These circumstances point clearly to Mohammad Ibrahim Khan as the real purchaser. It is true that in a suit brought in 1906 against Kirpa Shankar, Mohammad Siddiq and Mohammad Ibrahim Khan, it was said in para. 4 of the plaint that Mohammad Siddiq was the purchaser of the property at the auction in execution of Kanhaiya Lal's decree (see p. 68 of the printed book). Mohammad Siddiq, in his written statement (vide p. 70 of the printed book) admitted the purchase, and Mohammad Ibrahim Khan did not, in his written statement, claim to be the real purchaser (vide pp. 71-72 of the printed book). These facts, however, are not conclusive; there may have been reasons why Mohammad Siddiq and Mohammad Ibrahim Khan did not at that time choose to reveal the real nature of the transaction; and we do not consider that the above facts outweigh those already detailed by us, which point to Mohammad Ibrahim Khan as the real purchaser. If Mohammad Siddiq was the real purchaser, we can see no possible reason for his never taking possession, and for his sons not contesting the present suit.
6. The question arises what the rights of Kirpa Shankar were in the property at the time of the auction. It appears that the ancestors of the plaintiffs by four transactions dated two of them 28th May 1878, and the remaining two 5th December 1882, and 11th March 1901, respectively, acquired from the family of the original owners of the property 4 biswas 9 biswansis of the proprietary rights. It is contended by learned Counsel for the contesting defendants, however, that Kirpa Shankar, by remaining in possession of the whole of the property after the expiration of the period of eight years after the agreements of 1875, acquired title by adverse possession to this portion of the property. It seems unnecessary for us elaborately to consider bow this matter really stood, since in either event, on the finding that Mohammad Ibrahim Khan was the real purchaser in 1904 of Kirpa Shankar's rights, he became the full, owner of the whole of the 5 biswas. In other words, either by the four transactions to which we have referred he was already before that time the proprietor of the 4 biswas 9 biswansis, subject to the rights of Kirpa Shankar, in which case, by acquiring the whole of the rights of Kirpa Shankar in 1904, he became the full owner of the whole of the 5 biswas or, if Kirpa Shankar had, become the owner of the whole of the 5 biswas prior to the auction sale of 1904, and Mohammad Ibrahim Khan purchased Kirpa Shankar's rights at the auction, in that case also Mohammad Ibrahim Khan became the full owner of the whole of the 5 biswas. Our finding, therefore, is that as a result of the sale in 1904 of Kirpa Shankar's rights in execution of the decree held against him by Kanhaiya Lal, Mohammad Ibrahim Khan became the owner of the 5 biswas share in dispute that constitutes mahal Kirpa Shankar. The only remaining point to be considered is whether the suit is maintainable having regard to the provisions of Section 66, Civil P.C., Clause 1 of which runs as follows:
No suit shall be maintained against any person claiming title under a purchase certified by the Court in such manner as may be prescribed on the ground that the purchase was made on behalf of the plaintiff or on behalf of some one through whom the plaintiff claims.
7. The contention on behalf of the learned Counsel for the contesting defendants is that having regard to Clause 1 of that section this suit is not maintainable. This position was taken also before the learned trial Court and was the subject of issue 12: Is the suit barred by Section 66, Civil P.C.?' On this issue the learned Additional Subordinate Judge said:
Section 66, Civil P.C., has no application to the present case. It provides for a suit against a certified purchaser. It does not exclude evidence as to auction-purchase being benami when such evidence is relevant for the purposes of determining title between plaintiff and a third person.
8. It seems to us that this question has to be determined with reference to the clear language employed in Clause 1 of Section 66. The prohibition is against the suit being maintained against any person claiming title, etc. No doubt in the present case if the two sons of the ostensible purchaser, Mohammad Siddiq, had chosen to contest the suit, the matter would have been entirely different, and the suit would have been barred by the provisions of Section 66, Civil P.C. This much is conceded by learned Counsel for the plaintiffs. As things are, however, the sons of Mohammad Siddiq, as we have said already, do not contest the suit, that is to say, they are not persons 'claiming title,' inasmuch as they have not come forward and claimed any title. In these circumstances we think that the suit was not barred by the provisions of Section 66, Civil P.C. Our attention was called on behalf of the respondents to a ruling re-ported in Bishan Dial v. Ghazi-ud-din (1901) 23 All 175, but in that case the ostensible purchasers came forward and denied that the plaintiff was the real purchaser, that is to say, the ostensible purchasers in that case were persons claiming title. In support of the contention on behalf of the appellants, we were referred to a decision of the Calcutta High Court in Saradindu Chakravarti v. Gosta Behari Pramanick 1923 75 IC 196 at p. 197. The concluding paragraph of that decision is:
As to Section 66, Civil P.C., the heirs of Parameshwar do not appear in this case and deny plaintiff's benami purchase; that section only applies when the plaintiff attempts to enforce his secret title as against the certificated purchaser.
9. The situation in that case seems to have been the same as the situation in the present case, and following the view there taken, we think that there is no force in the contention that the present suit was barred by the provisions of Section 66, Civil P.C. The result is that we allow the appeal, with costs in both the Courts against the contesting respondents, and give the plaintiffs a declaration that they, along with the defendants and the third and fourth party, are the absolute owners of the property in dispute, and that' the defendants of the first party have no rights in it.