1. The case for the plaintiff-respondent was that he had previously purchased some land from one Jadunath Pramanik and that, hearing that Jaduuath was inclined to sell the 17 bighas, 9 cottas of land which form the subject of the present suit, and fearing that Jadunath would not consent to sell the land to him because, after the purchase of the other land, there had been a quarrel between them, he instructed one Umar Ali to purchase the 17 bighas, 9 cottas of land for him from Jadunath. The purchase was made in the name of Umar Ali by a conveyance dated the 17th Jaisth 1311 B.S. and the price paid is stated to have been Rs, 250. After the conveyance had been executed, it is stated that Jadunath discovered that the plaintiff was the real purchaser and refused to have the document registered. It was, however, eventually registered at the instance of Umar Ali; but Jadunath had, in the meantime, conveyed the land to the defendants Bakaullah and others, who were put in possession and refused to relinquish it. In consequence, a suit to establish his title and recover possessions was brought by Umar Ali against the defendants, and it was decreed. The plaintiff's case is that Umar Ali was his benamdar throughout. It was he--the plaintiff--who took the necessary steps through Umar Ali to have the kabala registered. And although, it may here be observed, it is extremely doubtful whether a benamdar can maintain a suit for the recovery of possession of land, Umar. Ali merely lent his name for the purposes of the suit referred to, and all the expenses connected with it were borne by the present plaintiff. Afterwards, it is said, Umar Ali was won over by the defendants Bakaullah and others who are his relations, and he sold the property in suit to them. When the plaintiff went to take possession on the strength of the decree obtained by him in the name of Umar Ali, he was again resisted by the defendants, and the present suit was instituted by the plaintiff against Umar Ali and the other defendants for a declaration of his title and for recovery of possession of the land.
2. Umar Ali died after the institution of the suit, and his wives were substituted in his place. The Judge of the Court of first instance found that Umar Ali was the benamdar of the plaintiff in the purchase of the land from Jadunath, that the plaintiff was the real purchaser and that, therefore, he was entitled to the reliefs claimed in the suit. He accordingly granted a decree in the plaintiff's favour. There was an appeal to the lower Appellate Court, but the judgment and decree of the Court of first instance were affirmed and the appeal was dismissed.
3. This appeal is preferred on behalf of Bakaullah and others, defendants Nos. 3, 4, 5 and 6 in the lower Courts, who claim to have purchased the land from Umar Ali after the decision of the title suit in which Umar Ali was the plaintiff.
4. In support of this appeal, several points have been argued, but the one which appears to us at present to be of importance is that the learned Judge of the Court of Appeal below appears to have been influenced in arriving at his decision by the evidence of one Haran Chandra Chatterjee, who was a Pleader for Umar Ali in the title suit brought against Jadunath, such evidence being inadmissible under the provisions of Section 126 of the Indian Evidence Act. The main point, on which the plaintiff-respondent relied in support of his case, was that Umar Ali in purchasing the land from Jadunath was merely the benamdar of the plaintiff. Umar Ali was a defendant in the present suit up to the time of his death, while Haran Chandra Chatterjee was a Pleader engaged on behalf of the plaintiff. This Pleader was examined as a witness on behalf of the plaintiff, and he made statements in the witness-box disclosing communications made to him in the course and for the purpose of his employment as Pleader in the case brought by Umar Ali. This was done without the consent of his client in that case, and it is contended that, under the provisions of Section 126 of the Evidence Act, his evidence was inadmissible. In his evidence, the Pleader said: Umar Ali told me he was a benamdar;' and this evidence is relied on by the Court of first instance as well as by the lower Appellate Court. In our opinion, the contention advanced on behalf of the appellant is correct, and the evidence of the Pleader Haran Chandra Chatterjee as to communications made to him in the course and for the purpose of his employment as Pleader was inadmissible under Section 126 of the Evidence Act. Prom the judgment of the lower Appellate Court, it would appear that the learned Judge has to a considerable extent been influenced in arriving at his decision by that evidence, and it is impossible for us to say how far that evidence may have affected the conclusion at which he has arrived in the appeal. We think, therefore, that the only course which we should adopt in the present case is to set aside the judgment and decree of the lower Appellate Court and direct that the appeal be sent back to that Court for re-hearing after discarding from consideration all statements made by the Pleader, Haran Chandra Chatterjee, as to communications made to him in the course and for the purpose of his employment as Pleader in the case brought by Umar Ali against Jadunath. At the same time, we desire to express our astonishment at, and disapproval of, the conduct of the Pleader, who, while he was a Pleader for the plaintiff in the present case, consented to go into the witness-box to give evidence as to facts which had been communicated to him in confidence as Pleader for one of the defendants in another ca3e. Costs will abide the result.