1. The Receiver of Nidadavole Estate obtained a decree for money against defendants 1 to 3. The properties in suit were attached in execution and were purchased by the plain. tiff. He obtained a certificate of sale, but when he applied to be put in possession, he was resisted by the 4th defendant who claimed to have purchased the property at a private sale from defendants 1 to 3. The present suit is to recover possession.
2. The contention of the 4th defendant among other pleas, is that the plaintiff is a benamidar for the Receiver and that consequently he is not entitled to sue in ejectment. The Subordinate Judge found that the 'plaintiff was a benamidar. In a careful judgment, after reviewing the authorities, he came to the conclusion that the plaintiff was not entitled to sue.
3. We think he is right. Mr. Nagabhushanam who appeared for the appellant conceded that in an ordinary suit in ejectment, a benamidar cannot recover possession. He argued, however, than a suit necessitated by resistance to obstruction in execution, the holder of the certificate of sale whether he be a benamidar or not is entitled to maintain a suit for possession. It was not seriously argued that anything in Section 68 of the Code of Civil Procedure can confer such a right. That section is designed to protect the person who has obtained a sale certificate and has acquired possession under it. It has no application to a purchaser who seeks to oust another from possession.
4. Reliance was placed by the learned Vakil upon certain observations in, Sree Raja Datla Venkata Suryanarayana Jagapathirqju v. Goluguri Bapiraju I.L.R. (1910) M. 143. A careful perusal of the judgment leaves no room for doubt that that decision is no authority for the contention now advanced. The learned Judges in that case drew a distinction between contractual rights and rights arising from title. In the former class of cases, the person who is eo nomine the contracting party is entitled to enforce the terms of the contract. It will not be open to the other party to the contract to turn round and say that although he did enter into the contract with the party suing, as that party is only a namelender for another, he can refuse to perform his part of the contract. The an logy of the sections relating to the rights of agents of undisclosed principals was relied upon for this purpose. We can conceive cases where even possession may be claimed under the contract against the party who has agreed to deliver possession. But the person sued in this case is not the person who entered into the contract; he is a third party who claims possession in his own right. The plaintiff in such cases must show that he has a better title than the person whom he seeks to eject. Consequently it is open to the defendant to plead that such a plaintiff has no right to recover possession. It is on this ground, we take it, that in suits in ejectment, the benamidar is not allowed to recover possession.
5. Mr. Nagabhushanam contended that under Order XXI, Rules 97 to 103 the person entitled to move the Court in cases of obstruction to possession, is the certified purchaser and none else and that therefore he is the only person who can sue under Rule 103. We are not prepared to hold, as at present advised, that the real purchaser is not entitled to take action under these rules. Even granting the premises, it does not follow that the real owner has no remedy. The fact that he could not sue to remove the obstruction under Rule 103, does not show that the ordinary right of a suit for possession on title is not open to him.
6. A stray observation in Ravji v. Mahadev (1897) 22 B. 672 that the benamidar can sue for possession was relied on. This was a suit for damages against the judgment debtor for cutting and carrying away the crops after the auction sale. The learned Judges very guardedly say that as between the benamidar and the judgment-debtor, the former may have a right to recover possession. We do not think that that observation can help the appellant.
7. We are of opinion that the view of the Subordinate Judge is right and dismiss the second appeal with costs.