1. This was a suit for, recovery of possession of certain lands on the allegation that they belonged to a certain taluk which had been purchased in the name of the plaintiffs in a revenue sale. There was also a prayer in the plaint, in the alternative, for the recovery of rent. The Courts below found that the plaintiff was a benamdar and was not entitled to bring this suit.
2. The plaintiff appeals.
3. It has been argued that the findings of the Courts below on the subject of benami are not sufficient to warrant the decision that the plaintiff was the banamdar. This, however, is an inference of fact with which I could not in any case interfere in second appeal and I may say, though perhaps it is somewhat beyond the scope of my authority, that, on reading the reasoning of (he Munsif on the point which was accepted by the learned. District Judge on appeal, there cannot be much doubt that this matter was rightly decided.
4. It is next argued that this question of benami does not arise in this suit and reference is made to Section 28 of the Bengal Revenue Sale Law, 1859. The plaintiff obtained the usual certificate of title after the sale and it is enacted by the second paragraph of the section that such a certificate shall be deemed in any Court of Justice sufficient evidence of the title to the estate or share of an estate sold being vested in the person or persons named from the date specified. It has been argued that such a certificate should be considered not only as sufficient evidence but as conclusive evidence. But this appears to be an untenable contention. It is open to doubt, in my opinion, whether the paragraph refers to anything more than the question of the date from which the certificate has operation. It is perfectly clear to my mind that, in any case, a certificate cannot be regarded as conclusive evidence of title. It has often been held that when a defaulting proprietor purchases in the name of benamdar, Section 53 will apply. But, clearly, if the certificate was conclusive evidence as to who was the purchaser at the revenue sale, the question raised by Section 53 could not even be gone into. If, also, a certificate was conclusive evidence, it would either have been unnecessary to enact Section 36 at all, or if it had been enacted, it would have been drawn in far wider terms than it has at present been drawn and would not have been confined to mere suits brought to oust the certified purchasers.
5. I think, therefore, that the Courts below were fully entitled to go into the question whether the plaintiff was a benamdar or not, and having found that he was a benamdar, they were perfectly right, in my opinion, in dismissing the suit.
6. It has been argued that under Section 37, the plaintiff would be entitled to avoid all incumbrances because he is a purchaser at the revenue sale. But the findings of the Courts below show that he is not really the purchaser at all.
7. Finally, it has been argued that even if the facts do not entitle him to eject the defendants, he is, at any rate, entitled to recover rent. It may be observed that though this prayer is contained in the plaint, it was never pressed in any of the Courts below and is not mentioned with any definiteness in the grounds of appeal to this Court. It appears to me clear from the decision in Mohendra Nath Mookerjee v. Kali Proshad Johuri 30 C. 265 that the suit must necessarily fail. The learned Judges in that case say as follows: In the Moffusil, and I should say generally in the Courts of this country, the benamdar is treated merely as a person in whose name any property stands without his having any legal or equitable title in the same. That being so, there is no reason for holding that a benamdar is entitled to maintain a suit. Of course, where a suit has been allowed to be brought by a benamdar, the decree in such a suit has been held to be binding on the beneficial owner. That is a very different thing from holding that a benamdar as such is entitled to maintain a suit for recovery of possession of property, of which he is merely a benamdar. Although some of the inconveniences arising from a benamdar being permitted to sue may be met, that is no reason why a person who has no right to any property should be held entitled to maintain a suit for recovery of the same.' If I may say so with the greatest respect, this reasoning appears to me to be absolutely sound and to apply just as much to suits for the assessment of rents as to suits for recovery of property. I can see no reason whatever why any person should be allowed to recover another person's property or assess rent on another person's tenants.
8. I am of opinion that, on the findings of fact arrived at by the Courts below, the suit has been rightly dismissed and the appeal must be dismissed with costs.