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 18th 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 13th 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. 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.
4. It was urged that the evidence as to the subsequent transaction relating to the defendants' kobala had itself some bearing as the question of the transactions relating to the plaintiff's kobala and that the lower Appellate Court had not dealt adequately with this latter matter. We are also of opinion that the learned Subordinate Judge's handling of this question is not altogether satisfactory, but as we desire to make its clear that the decision on it is left entirely open and that it may be agitated by Ardha and Pasupati Ray Choudhury if they are so advised, we do not consider it necessary to remand the case for any re-hearing on this question. This appeal will therefore stand dismissed with costs.
B.K. Mukherjea, J.
5. I agree. The cass is a simple one and the whole controversy centres round the point as to whether the plaintiff has acquired a title by purchase to the property in suit. If his purchase was a bona fide and an operative purchase the decree must be in his favour and the question whether defendant 1 had purchased the selfsame property from the plaintiff's vendors becomes immaterial, as admittedly the purchase of defendant 1 was subsequent to that of the plaintiff. If, on the other hand, the plaintiff's purchase is held to be void for want of consideration then also the other question would not arise except perhaps that the nature of the subsequent transaction might throw some light upon the nature of the previous one. In my opinion the Munsif having come to the definite opinion that the plaintiff did not acquire any title by his purchase should not have passed a decree for khas possession in is favour upon the basis that he was the benamidar for his vendors. The circumstances in this case could not possibly attract the operation of the principle enunciated in Gur Narayan v. Sheolal Sheolal Singh (1918) 5 A.I.R. P.C. 140. It was not the ease of defendant 1 that the plaintiff was the benamidar for Ardha and Pasupati and as such was not competent to maintain the suit. He claimed that the title was in him and that he had acquired the same property by purchase from the real owners. The vendors of the plaintiff who were made parties to the suit took up the position that they had parted with their interest in the property in suit in favour of the plaintiff. So it was nobody's case that the plaintiff was a benamidar and having regard to the position taken up by the plaintiff's vendors it could not be said that the plaintiff represented his vendors and could make any claim as their representative or trustee.
6. The plaintiff undoubtedly had a right to challenge the decision of the trial Judge that he had no beneficial interest in the property in suit, and the lower Appellate Court was wrong in holding that the appeal was incompetent as it was an appeal from a mere finding. It was not a finding merely but a part of the decree itself for the decree that was given by the trial Judge was different and much more limited than the decree which the plaintiff actually claimed. At the same time the lower Appellate Court did enter into the evidence relating to the passing of consideration and affirmed the finding of the trial Judge that there was no consideration in support of the plaintiff's kobala and that the sale was a sham transaction. We have looked to the material portion of the evidence ourselves and in our opinion the finding arrived at is a correct finding which was sufficient to dispose of the case. I think the Appellate Court came to certain hasty findings as regards the other point which related to the explanation or kaifiat that was attached to the kobala of defendant 1. It did not consider the evidence of Nalini who was the material witness on the point and it did not advert to the fact that Bansadhar, the pleader for defendant 1 who was an attesting witness to the document, was not called as a witness at all. The finding on this question therefore as arrived at by the lower Appellate Court must be set aside and it would be open to defendants 2 and 3 if they consider that they have still a subsisting title to the property to institute a suit for recovery of the same from defendant 1. The appeal and the suit will stand dismissed on this finding alone that the plaintiff has failed to prove his title to the property in suit. The result is that I agree with my learned brother that the appeal shall stand dismissed with costs.