1. In this suit the plaintiff sued for recovery of possession of 1 kani 14 gandas of land on declaration of his raiyati title to 6 annas 8 gandas share and of his under-raiyati title by purchase at a sale for arrears of rent due by the under-raiyat. The suit was dismissed in the First Court but has been decreed by the lower Appellate Court.
2. The plaintiff's cause of action arose on the defendant Tuka Meah succeeding in an application under Order XXI, Rule 100. Code of Civil Procedure. The first point argued in this appeal is, that the suit is barred by limitation under Article 11A of the Schedule to the Limitation Act. Though on examination of the dates at first this objection appears to be sound, we now see that, allowing for the closing of the Court for Puja vacation and the time allowed to the plaintiff to file deficit Court-fee, the plaint was filed within time.
3. The second point relates to a question of fact on which the two Courts differed. The first Court held that Nayantara, from two of whose five sons the plaintiff purchased his raiyati right, was a benamdar of her husband Krishna Chandra. The lower Appellate Court held that she was not a benamdar. It is contended that in coming to this finding of fact the burden of proof was wrongly thrown on the defendant. Primarily, the party alleging that a person is a benamdar is bound to prove it, and that in what the Additional District Judge has stated. He has further considered the evidence in the case. It appears to us that he has committed no error of law in coming to this finding of fact.
4. It is also contended that the lower Appellate Court has erred in his finding as to the plaintiff's under raiyati title. The first contention is that the under raiyati is not transferable. This is true as a general rule, as was held in the case of Aminunnisa v. Jinnat Ali 27 Ind. Cas. 27 : 19 C.W.N. 43 : 20 C.L.J. 548 : 42 C. 751, which was followed in the case of Biswambhar Mandal v. Nasarut Ali 57 Ind. Cas. 912 : 32 C.L.J. 46. But as was held in the case of Akhil Chandra Biswas v. Hasan Ali Sadagar 20 Ind. Cas. 698 : 18 C.L.J. 262 : 19 C.W.N. 246 an under-raiyat may under certain circumstances acquire a right of occupancy and if he so acquires it his right is transferable. It appears that this plea that the under-raiyati interest was not transferable was not raised in either of the lower Courts. Had it been so raised, the plaintiff might have been in a position to prove a custom of transferability of under raiyati holding in this locality. It is too late to raise this plea for the first time in second appeal.
5. It is also said that the lower Appellate Court has not overruled the finding of the Munsif that the under-raiyati of Lakshmi was non-existent. This, in our opinion, is not correct. After setting out the plaintiff's case the learned additional District Judge states that he has prima facie shown his title to the land in suit. That evidently means both his raiyati and under-raiyati title as claimed. He then goes on to state that the defendant contends that Nayantara was a benamdar and Lakshmi's Osat raiyati was fraudulent and collusive. He then discusses the evidence principally, it is true, with reference to the question of benami. But he sums up by saying that the plaintiff has got title to the land in suit. The questions of Nayantara's benami and the genuineness of Lakshmi's Osat raiyati are inter-dependent and the finding of the Munsif that the latter was fraudulent largely depended on the finding that Nayantara was a benamdar. Having upset the finding in respect of Nayantara it was not necessary to discuss at length the question of Lakshmi's Osat raiyati, and we must hold that what has been written in the judgment is a distinct finding that the under raiyati was genuine and in existence at the time of the plaintiff's purchase.
6. The last point urged is that the plaintiff's title has been destroyed by the rent-suit brought by the superior landlord who put the which holding in which this land was comprised to sale in execution of the rent-decree. The finding that this sale is a fraudulent transaction is one of fast which cannot be overrated in second appeal.
7. We hold, therefore, that points raised on behalf of the appellant failed. We dismiss this appeal with costs.