1. These two appeals arise out of two suits heard together in the trial Court and one judgment of the trial Court cover both the suits. They were heard together before the lower appellate Court, who, however, passed two judgments. Both the appeals would be covered by the present judgment of ours.
2. SECOND APPEAL NO. 98 OF 1949: This appeal arises out of O. S. No. 12/543 of 1947/45 wherein the present appellant Dolgovind Mahapatra is the only defendant. The plaintiff brought the suit for declaration of his title and for confirmation of possession in respect of the suit properties described in two schedules Ka and Kha consisting of 16 items of property each of the schedules containing 8 items.
The main allegation of the plaintiff is that the properties in suit really belonged to him even though they stand in the name of the defendant. Ka schedule properties are the subject matter of the private sales and Kha schedule properties were acquired in court sales. All these items of property indeed stand in the name of defendant.
The defendant is the maternal uncle of the present plaintiff, who lost his father prior to the year 1923 and the defendant being a general power-of-attorney holder managed the properties of the plaintiff. The plaintiff attained majority in the year 1930 but in spite of his attaining majority, the defendant continued management till the year 1942.
Plaintiff's version is that the defendant is a man of no means, the properties in suit were acquired from out of the funds belonging to the plaintiff which were in the hands of the defendant during the time when he was in charge of management of the properties of the plaintiff, and with those funds they have been acquired and are still in continuous possession of the plaintiff ever since the time of acquisitions.
3. The defence is that in fact the defendant is the real owner of the properties, the funds were supplied by him for the purpose of acquisition of different items of property at different times and he is continuing in possession thereof. In respect of Kha schedule properties, his additional plea is that the present suit is barred under the provisions of Section 66, Civil P. C.
4. So far as Ka schedule properties are concerned, the simple question for determination in suit is whether kabalas in respect of the 8 items of property appertaining to Ka schedule are benami transactions i.e. whether the plaintiff is the real owner in respect thereof even though the properties have been purchased in the name of the defendant.
Both the Courts below have examined the volume of evidence adduced in the case from the right point of view throwing the onus upon the plaintiff and have applied the well known differnt tests for the purpose of coming to the conclusion as to the nature of the transaction in dispute to determine who is the real owner whether the plaintiff or the defendant. (His Lordship reviewed the evidence and proceeded):
5. All the title deeds in respect of the properties in dispute are coming from the custody of the plaintiff and nave been filed in Court by the plaintiff. The defence explanation as to how the documents came into possession of the plaintiff has been rejected by the Courts below. Both the Courts have concurrently found that in fact in spite of the transactions being in the name of the defendant the suit properties are all along in undisturbed and continuous possession of the plaintiff ever since the time of their acquisitions. The learned trial Court on a very elaborate and exhaustive judgment and on an examination of evidence in respect of different items of property, has come to the finding that the purchase money in each case was supplied from out of the plaintiff's funds. This finding has been confirmed by the lower appellate Court.
In view of the above considerations, therefore, in our opinion, the Courts below were perfectly justified in coming to the only available conclusion that the Ka schedule properties really belonged to the plaintiff.
6. The main defence in respect of Kha schedule properties is that the present suit is barred under the provisions of Section 66, Civil P. C., which is parallel to the provisions of Section 27, Bihar and Orissa Public Demands Recovery Act. Section 66 runs as follows:
'66(1) 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.
(2) Nothing in this section shall bar a suit to obtain a declaration that the name of any purchaser certified as aforesaid was inserted in the certificate fraudulently or without the consent of the real purchaser, or interfere with the right of a third person to proceed against that property, though ostensibly sold to the certified purchaser, on the ground that it is liable to satisfy a claim of such third person against the real owner.'
The learned lower appellate Court has rightly found that the plaintiff's suit comes' within the exception as provided for under Clause (2) and is not really hit by the mischief of Clause (1) of the section. It is not a case where the plaintiff comes with the allegation that the Kha schedule properties were purchased on behalf of the plaintiff. On the contrary, the definite allegations of the plaintiff as contained in paragraph 10 of the plaint, are to the effect that when the defendant was managing the properties of the plaintiff as a Power-of-Attorney holder and agent even though the plaintiff supplied the money for purchase of different items of property in court sale, the defendant with a fraudulent desire inserted his name in the sale certificates though the properties actually remained in the possession and enjoyment of the plaintiff and the defendant has no right, title and interest thereof. If really the plaintiff had brought the case that he had asked the defendant to purchase the property in the defendant's name or that while supplying the money he had consented to the purchase being in the defendant's name, the suit would be barred under Section 66, Clause (1) but on the contrary, there being nothing to indicate that the plaintiff had consented to the name of the defendant being inserted in the sale certificates, the case comes under the exception of Clause (2) of Section 66.
Moreover, on a consideration of the circumstances of the case, the Courts below have rightly come to the conclusion that the defendant taking advantage of his position as the manager has played fraud in getting the sale certificates in his name. Both the Courts below after a careful consideration have come to the conclusion that the purchase money in respect of the Kha schedule properties was from out of the plaintiff's funds. It appears in respect of some of the items of property that the expenses for the purchase money have been entered in the plaintiff's accounts and that they appear in the writing of the defendant himself. In our opinion, it is clear on a consideration of the above circumstances, that the defendant is a man of very small means and being the maternal uncle of the plaintiff in charge of the management of the properties has played fraud in getting these properties in his own name indeed without the consent of the plaintiff.
7. We would further observe that in respect of item nos. 3, 4, 5 and 6 of the Kha schedule properties prior to the court sales admittedly the title remained with the plaintiff, the properties being his ancestral property. They were purchased in execution of decrees to which the plaintiff was not a party and as such, the plaintiff's rights by virtue of the purchases were not affeced. The plaintiff can fall back upon his antecedent titles and the question of Section 66, Civil P. C., will not arise.
In respect of the 7th item of property of schedule Kha, as it appears from the date of acquisition of the property, it was acquired more than 12 years prior to the suit and the finding being that the plaintiff was all along in possession of all these properties, he has acquired title by adverse possession in which case also, consideration of Section 66 will not arise.
In conclusion, therefore, we are definitely of the view that the plaintiff has been able to make out his title in respect of the properties described ,, in schedules Ka and Kha of the plaint and is entitled to the declaration prayed for and for confirmation of his possession. The appeal is, therefore, dismissed with costs and the judgment and decree of the lower appellate Court are confirmed.
8. SECOND APPEAL NO. 129 OF 1949: This appeal arises out of a suit in O. S. No. 47/306 of 1947/ 46 which was filed nearly a year after the other suit. Here also, the plaintiff is the same Anathbandhu Naik and defendant 1 Dolgovinda Mohapatraisthe maternal uncle of the plaintiffs. Defendants 2 & 3 are subsequent transferees from Dolgovind by virtue of a registered sale deed dated 21-2-1944, for a sum of Rs. 340/-. The suit property is of an area 4.04 acres in Sisipur mouza when purchased in execution of a decree for rent on 25-11-1932. The sale certificates stand in the name of defendant 1. Plaintiff's allegation is that the purchase money was paid from out of the funds belonging to the plaintiff and that since the date of the purchase the plaintiff was all along in possession of the properties till 21-2-1944 when he was dispossessed by defendants 2 and 3.
The plaintiff's further allegation is that the purchase on 25-11-1932 was made benami in the' name of his maternal uncle, who was enjoying full confidence of the plaintiff and his mother and that he was also in charge of the management of the properties. The plaintiff on his allegation being the real owner prays in this action for declaration of his title and for recovery of possession.
9. The defence was two-fold:-- (1) that the transferees claim protection under the provisions of Section 41, Transfer of Property Act; that they are bona fide purchasers for valuable consideration from the ostensible owner and (2) that the present action is clearly barred under the provisions of Section 66, Civil P. C. The trial Court had decreed this suit also along with the other suit in the same judgment.
The lower appellate Court, however, while upholding the decision in respect of the other suit, reversed the decree in respect of this suit and dismissed the plaintiff's suit upholding both the contentions of the defence.
10. We agree with the finding of the trial Court which has not been reversed by the lower appellate Court that in fact the purchase money came out of the funds of the plaintiff and further that plaintiff was all along in possession of the suit properties since the date of taking delivery of possession till 21-2-1944, i.e., the date of transfer in favour of defendants 2 and 3. We are not inclined to accept the view of the lower appellate Court that the transferees are entitled to protection under Section 41, Transfer of Property Act. |The admitted fact is that these transferees belong to the same village where the lands in suit are situate. When the fact is that the lands in dispute were all along in possession of the plainitiff and not of the transferor, defendants 2 and 3 being the residents of the same village, it is impossible to accept that they were not aware of the possession of the plaintiff. At least any little enquiry would have been sufficient to inform them of the real position regarding possession, which is the very first step of a bona fide purchaser to enquire before finalising the transaction. As we get it from the judgment of the trial Court, the defence version in evidence is that because defendant 1 is in possession of the lands they did not consider it necessary to make enquiries any further or to ask the title deeds of the latter. In this view, therefore, it is not possible for us to accept them as bona fide purchasers having entered into the transaction in good faith. The defence contention on this point, therefore, must tall.
11. But there is a real difficulty in the way of the plaintiff to get a decree in the present suit on account of his statements in the pleading itself. More than once in the plaint he has mentioned that this property was purchased by him benami in the name of defendant 1, who was his agent on 25-11-1932. It is significant to note that there is no averment of any fraud nor even is there any averment that defendant 1 purchased the property in his name without the consent of the plaintiff. The lower appellate Court has rightly construed the plaint read as a whole to mean that defendant 1 purchased these properties in his name with full knowledge of the plaintiff and the mother. This being the position, the case cannot really .come within the exception as provided for in Clause (2) of Section 66, Civil P. C. P., but is directly met by the mischief of Clause (1) unlike the other case.
12. The appellant tried to make out a case that the plaintiff is entitled to a declaration of his title in respect of the court sale on the basis of adverse possession for a continuous period of 12 years after the date of sale. Indeed, if he is able to establish his title by adverse possession, Section 66 will not be a bar to the present suit as has been decided by their Lordships of the Privy Council in -- 'Mahomed Abdul Jalil Khan v. Md. Obaid Ullah Khan', AIR 1929 PC 228 (A).
But unfortunately for him, the plaintiff's case was to the effect that he was in possession till the date of the kobala dated 22-2-1944 and has, therefore, prayed for recovery of possession in the present action. The learned trial Court also had found that the plaintiff was in possession till February, 1944. The period falls short of the statutory requirement to mature plaintiffs title by adverse possession and as such, he is not entitled to fall back upon this position.
13. It is next urged that the plea of bar under Section 66, Civil P. C., is not available to the transferees from the certified purchaser.
Indeed, under Section 317 of the old Code, a suit was barred only as against the certified purchaser but not against any one claiming title under him. This was the view held by all the High Courts except the Bombay High Court. The language in the old Code was 'no suit shall be maintained against the certified purchaser'.
But the present section has settled the conflict at rest by introducing the language
'no suit shall be maintained against any person claiming title under a purchase certified by the Court in such manner as may be prescribed.'
This introduction gives legislative effect to the Bombay view. We may in this connexion refer to the latest edition of the Civil Procedure Code by Mulla '1953' at page 275.
Mr. Chatterji appearing on behalf of the respondents further relies upon a Bench decision of the Calcutta High Court in -- 'M. Ali Ahmed v. Shamsunnessa', AIR 1938 Cal 602 (B), where after discussion of the position of law under the old Code as compared with the new, their Lordships have come to the conclusion that the objection under Section 66 applies to a suit against the assignees of the benamidar.
The same view also was expressed in the case of -- 'Fazlur Rahman v. Sardar Ali', AIR 1928 Cal 338 (C). We are, therefore, constrained to find that the present suit is barred under Section 66, Civil P. C.
14. In conclusion, therefore, Second Appeal No. 98 of 1949 is dismissed with costs and Second Appeal No. 129 of 1949 is dismissed but as the plaintiff's suit fails merely on a technical ground in spite of the position that he had supplied the purchase money and was in possession of the properties till 1944 the defendants will not be entitled to recover any cost from the plaintiff when we have found that the transferees are not bona fide purchasers and had not acted in good faith.
14. I agree.