S.K. Ghose, J.
1. This appeal arises out of a suit which according to the description in the plaint is a suit of a composite nature, for specific performance of contract, for recovery of possession on declaration of title, for mesne profits, damages and for setting aside an auction sale and is valued at Rs. 26,000. The suit was filed under the following circumstances. Mouzas Nij Gangatikuri and Radhikapore appertaining to putni lot Gangatikuri within the zamindari of defendant 6 the Maharajadhiraj Bahadur of Burdwan comprised a putni estate in the ownership and possession of the plaintiff personally. On 27th September 1924, the plaintiff executed two deeds of trust with regard to his secular properties and debuttar properties respectively in favour of Maharaja Sir Manindra Chandra Nundy of Cossimbazar the father of the present defendant 7. On 4th August 1925 the properties which are the subject matter of the present suit were sold in execution of a money decree and purchased nominally by one Hemanta Kumar Nundy the father of the minor defendants 1, 2 and 3. The plaintiff's case is that these properties were, in fact, purchased by Maharaja Sir Manindra Chandra Nundy as trustee of the debuttar properties. On 17th November 1925, the putni estate was brought to sale under Regulation 8 of 1819 by the Collector of Burdwan and auction purchased by Satindra Nath Banerji and Sibnath Banerji who are represented by defendants 4 and 5 in this suit. The plaintiff's case' is that this auction purchase was made in collusion with the officers of defendant 6 who according to him, were aware that Hemanta Kumar Nundy was a mere benamidar. On 12th November 1926 Suit No. 212 of 1926 was instituted by the aforesaid Hemanta Kumar Nundy for setting aside the putni sale. Hemanta Kumar died on 26th July 1929 and his three minor sons who are defendants 1, 2 and 3 were substituted in his place and represented by their mother Ratnabala as guardian and next friend. Maharaja Sir Manindra Chandra Nundy died on 10th November 1929.
2. The plaintiff's case is that subsequently he came to learn that the plaintiffs in Suit No. 212 were about to withdraw that suit in collusion with the defendants in that suit. On 27th March 1930 the present plaintiff in his personal capacity applied to be added as a plaintiff in Suit No. 212 asserting that Hemanta Kumar Nundy was a benamidar and that he apprehended that the heirs of Hemanta were about to withdraw the suit. The application was opposed by all the defendants and it was dismissed on 26th April 1930. The matter was taken up to the High Court which affirmed the said order. On 8th June 1931, the present plaintiff made another application for being added as a defendant in Suit No. 212, this application being similarly rejected on 26th June 1931. Then there was an application to the High Court which declined to interfere by its judgment dated 4th December 1931. On 11th March 1932 the plaintiffs in Suit No. 212 withdrew that suit. In the present plaint the plaintiff asks for reliefs which may be grouped as follows : By prayers (ka) and (cha) it is prayed that the defendants 1, 2 and 3 be directed to execute a deed of release. By prayers (ka 1) and (gha) it is prayed that the putni sale be declared to be illegal and void. By prayers (kha) and (ga) it is prayed that the 'withdrawal order passed in Suit No. 212 be declared to be void and that the plaintiff be entitled to prosecute that suit. By prayer (uma) mesne profits are asked for. By prayer (chha) compensation of Rupees 26,000 is asked for as against defendants 1 to 3 and defendant 7. By prayers (ja) and (jha) reliefs in general are asked for. The plaint was originally filed by the plaintiff describing himself as shebait of an idol. Subsequently a petition for amendment of the plaint was filed in the course of which it was stated that the plaintiff did not know for certain whether the auction purchase of the properties in suit was made out of the debuttar funds or out of the secular funds both of which were in charge of Maharaja Sir Manindra Chandra Nundy as trustee. In consequence of this, certain amendments were asked for to show that the plaintiff was also suing in the alternative in his personal capacity.
3. Meanwhile the plaintiff filed a petition for insolvency. The result was that the receiver in charge of the plaintiff's secular estate was added as plaintiff 2. On 17th February 1934, the plaintiff filed a petition for permission of withdrawal of the claim for mesne profits and damages as against defendants 1 to 3 and 7. The respective pleaders for these defendants also noted on the petition that they would not contest the suit and did not pray for costs. Thereafter it appears they did not take further part in the proceedings. The suit was con. tested by the auction-purchasers, defendants 4 and 5 and the zemindar defendant 6, The substantial defence of the auction purchasers was that they denied that Hemanta Kumar Nundy was a mere benamidar and they set up Section 66, Civil P.C., as a bar to the plaintiff's suit. They also asserted that the putni sale was valid and that Suit No. 212 was not liable to be revived at the instance of the present plaintiff. The de-fence of the zamindar defendant 6 was that the putni sale was valid, that the suit was barred by limitation, and that there was no collusion.
4. As the result of the trial, the Subordinate Judge came to the following findings on the major issues : The suit is not barred under Section 66, Civil P.C. The property in question was purchased out of the income of the debutter estate of the plaintiff and thereafter it became part of the debutter estate of the plaintiff. But the sale of putni lot Gangatikuri on 17th November 1925 was valid and binding on the plaintiff and not liable to be set aside. Further the plaintiff was not entitled to revive Title Suit No. 212 of 1926. In the result the Subordinate Judge dismissed the suit. The present appeal is filed by the plaintiff as representing the debutter estate. As regards the personal estate the receiver plaintiff 2 took some part in the proceedings at the trial and he has been made respondent 8 to this appeal. But he has not appeared in this Court.
5. Mr. P. R. Das for the appellant has contended that, having got the issue as to benami in his favour in the trial Court, he need only press the appeal in this Court on the prayers (kha) and (ga) of the plaint, subject of course to limitation and that his main point is that the withdrawal order passed in Suit No. 212 should be vacated and the appellant should be entitled to prosecute that suit. He has suggested that the other issue of fact viz. whether the patni sale notices were regularly published need not be one into now but may be left for decision in Suit No. 212, if the parties to this appeal should consent to that course; and further that if this issue be also gone into now, then it should not be tried again in Suit No. 212 if that suit should be revived. The other parties to this appeal do not however agree that the aforesaid question should be left open; nor can they agree. The plaint raised the question and asked for relief to the effect that the patni sale should be set aside : para. 23 Clause (ka-1) of the plaint. Upon that an issue was framed, viz. Issue 10. This was tried and decided against the plaintiff. If this decision stands it would cut the foundation from under the plaintiff's claim and it would not be possible to revive Suit No. 212. In view of the points raised in this appeal, it seems to me that its fate will depend on our view of Issue 10 which I now discuss.
6. Issue 10 is this: Is the sale of the patni lot Gangatikuri on 1st Agrahayan 1332 = (17th November 1925) under Patni Regulation liable to be set aside? Was the notice of sale regularly published? Is it binding on the plaintiff?, The Subordinate Judge has found that the serving peon did go to the spot and serve the notice; that he asked four persons to attest, that they did attest, but that the names put down were fictitious. In this view of the facts, the Subordinate Judge has held that there was substantial compliance with law; that the sale notices were regularly published, and that the patni sale is not liable to be set aside. The question is whether this view is correct. Under Section 8 of the Bengal Patni Taluqs Regulation, the zamindar shall be exclusively answerable for the observance of the forms and this throws the burden of proof on the zamindar. The plaintiff also in para. 7 of the plaint made the case that the names of persons whose signatures appear on the return of service are fictitious. It is contended that this is not specifically denied in the written statement of the zamindar defendant 6, but the deniai appears in para. 6 of his written statement. It has to be remembered that the service of notice took place in 1925 and the witnesses were deposing in 1934. Defendants' witness 4 Atul Krishna Palit was the serving peon. He deposes that he served the notice of patni sale of Mahal Gangatikuri at the Gangatikuri village office of the patnidar. He asked the people near him to sign the copy of the notice. They told him that they were of the village. Four of them signed, the name of one Rampada Bagdi who was illiterate, being signed by another witness Jogesh. The witness further says that there was a practice to despatch a post card to the Raj office after service of the: notice and accordingly he despatched the post card Ex. D by posting it at Pachimadi Raj station which is about four miles from. Gangatikuri. The post card actually bears the seal of the post office at Banwaribad, but this is not inconsistent with the postcard being dropped at the station and thence taken to the local post office where it was stamped. Our attention was drawn to a postal guide of 1937 to show that there is a post office at Gangatikuri also but this again is satisfactorily explained.
From Gangatikuri I went to Murandi to serve another notice. Prom Murandi I went to Pachimudi to serve a notice there. On the way I posted the post card in the letter box, at Machandi Bail-way station ... I wrote the post card at the Machandi Railway station.
7. There can be no doubt, as the Subordinate Judge says, that the peon went to the locality. He is no longer in the service of the Burdwan Raj, being a deed writer at present. He is corroborated by two wit-nesses. One of these is defendants' witness-2, Manindra Nath Banerjee, who was at Gangatikuri and saw the peon. This witness is a pleader of Katwa, but he happened to go to Gangatikuri for Jagadhatri Puja on the invitation of defendant 5. He is a. friend of defendant 5 and works for his estate as pleader now and then. He was also not cited as witness in Suit No. 212. Nevertheless he appears to be a respectable-person whom ordinarily one would non-disbelieve. D. W. 11 has a shop near by and also saw the peon. The names of these' two witnesses however do not appear on the peon's return of service Ex. C (1). The attesting witnesses mentioned therein are (1) Ramapada Chatterjee, (2) Bepin Behari Kaibarta, (3) Jogendra (Joges?) Chandra Kaibarta, (4) Rampada Bagdi Choukidar by the pen of Joges Chandra Kaibarta 'all of Gangatikuri'. As mentioned already the Subordinate Judge has found that these are fictitious names, but this would not invalidate the service since be has found that the peon did go to the spot and 'serve the notice: Maharajah of Burdwan v. Tara Soondari Debi (1883) 9 Cal 619 and Provat Kumar Sinha v. Bejoy Chand Mahatab (19S7) 41 CWN 946. But if the names are really fictitious, it would affect the credibility of the evidence as to service. (After discussing evidence his Lordship proceeded further.) Considering therefore the evidence in the light of probabilities, I must hold that the sale notices were regularly published and that the patni sale is not liable to be set aside. The parties are bound by this decision on Issue 10 and the present suit is therefore liable to be dismissed.
8. The next question which should also determine the fate of this appeal is a question of law, viz. whether the suit is barred under Section 66, Civil P.C. This was Issue 4. The Subordinate Judge has held that the suit is not so barred on the short ground that the heirs of Hemanta Kumar Nandi are no longer contesting the suit. This ground however does not apply because these heirs viz. defendants 1, 2, 3 are respondents to this appeal and have appeared through the Deputy Registrar. They do contest and their learned advocate Mr. Surjya Kumar Aich has stated that he would adopt the arguments of Mr. H. D. Bose and Dr. Basak appearing for the other respondents being defendants 4, 5 and 6. Now the contention of the appellant is that the defence of bar under Section 66 is available only to the certified purchaser and those claiming through him, i.e. defendants 1, 2, 3 and even defendant 7, but that it is not available to defendants 4 and 5, the auction-purchasers, nor to defendant 6 the zamindar, none of whom claim through the certified purchaser Hemanta. It has been mentioned that prayer (chha) which asked for mesne profits and damages from defendants 1 to 3 and defendant 7 were withdrawn on 17th February 1934 whereupon the advocates for these defendants stated that they would not contest. As to prayers (ka) and (cha) which asked for nadabi deeds from defendants 1 to 3, they were apparently not pressed at the trial and no issue was framed; they have certainly not been pressed in this Court by Mr. Das for the appellants. These defendants however were not discharged from the suit; they are parties to the decree of dismissal.
9. It is contended for the appellant that the present suit is not for declaration for title against defendants 1, 2, 3 and no specific relief is claimed Against them. On the other hand it is pointed out for the respondents that the relief which is now asked for, as comprised in the prayers (kha and ga) to be allowed to prosecute Suit. No. 212, is based on the plaintiff's case of benami which is resisted by the heirs of the alleged benamidar, and if that goes then the whole foundation of the suit goes. It has been held that since a statutory provision bars the equitable jurisdiction of the Courts, the Section must be construed strictly: Mt. Buhuns Koonwar v. Lalla Buhoree Lall (1872) 14 MIA 496 at p. 522. It is pointed out that the present is not a suit for title and possession as against the certified purchaser as was the case in Hanuman Pershad v. Jadu Nandan (1916) 3 AIR Cal 762 and Umasasi Debi v. Akrur Chandra (1926) 13 AIR Cal 542 upon which Dr. Basak for defendant 6 relied. Mr. P. R. Das for the appellant has relied on two cases, Promatha Nath Pal v. Mohini Mohan Pal (1920) 7 AIR Cal 435 and Abinas Chandra v. Pratul Chandra : AIR1928Cal448 . In the first mentioned case the question was whether the present Section 66 or the old Section 317 should apply and it was not disputed that if Section 66 applied the suit was barred. To both cases no doubt the certified purchaser was a party but in neither case did he contest the suit, nor was it necessary to decide the question of benami in order to give the relief asked for in the suit. Where the certified purchaser does not contest no question of bar under Section 66 arises: Saradindu Chakravarti v. Gosta Behari Pramanik (1923) 10 AIR Cal 302. But that is not the position here. The claim for the execution of nadabi deeds has not been pressed. Still it is not a suit pursuant to an agreement made between the beneficial owner and the judgment-debtor with the certified purchaser as a party not contesting. The suit is now for relief, which can only be given on declaration of title as against persons claiming title under a purchase certified by the Court, such persons being parties and con-testing the claims. That is the primary purpose. This being so, the suit is barred under Section 66 as against defendants 1, 2 and 3. That being so again and in view of the relief claimed, the suit must fail as against the remaining defendants also. On these two findings the appeal stands to be dismissed. I may however consider some of the other questions which have been argued. Issues 7 and 8 are stated thus:
7. Was lot Gangatikuri purchased out of the income of debutter or personal estate of the plaintiff in Money Execution Case No. 66 of 1925 and did the same become after that debutter or personal property of the plaintiff? 8. Was the plaintiff or his trustee ever in possession of the mahal in suit and were they dispossessed by defendants 4 and 5?
10. The Subordinate Judge has found that the patni in question was purchased by the Maharaja Sir Manindra Nandi in the benami of Hemanta Kumar Nandi out of the income of the debutter estate of the plaintiff, that the Maharaja was the agent of the plaintiff and as such was in possession, and that Hemanta Kumar was not in possession. (After discussing evidence his Lordship proceeded further.) Upon the evidence I hold that lot Gangatikuri was purchased out of the income of the debutter estate of the plaintiff, that Hemanta Kumar Nandi was a mere benamidar, and that the property is the debutter property of the plaintiff. The next question is whether, if the other material issues are decided in favour of the plaintiff, he is entitled to relief as prayed for in paras, (kha) and (ga) of the plaint. As mentioned already, this is what Mr. P. R. Das for the appellant is pressing for in this Court. Issue 11 runs thus: 'Is the result of Title Suit No. 212 of 1926 of this Court binding on the plaintiff and is he estopped from challenging it?' The view taken by the Subordinate Judge is this: It is not proved that the sons of Hemanta withdrew Suit No. 212 by collusion with the defendants in that suit, though the circumstances are suspicious. At the same time since March 1930 the sons of Hemanta had been repudiating their alleged character as benamidar for the present plaintiff and therefore the suit ceased to be the present plaintiff's suit after that repudiation. That was more than three years before the institution of the present suit and it would be inequitable to permit the present plaintiff now to continue Suit No. 212. I do not think however the equities of the matter are against the present plaintiff. If there was fraudulent repudiation of plaintiff's title, such repudiation would not convert plaintiff's suit into their suit, i.e. the suit of Hemanta's sons. But if plaintiff is not bound by their withdrawal then he can have the withdrawal order set aside, subject of course to limitation. This is now the contention for the appellant. It appears that after the death of Hemanta and Mahraja Sir Manindra, the present plaintiff applied on 27th March 1930 to be made party co-plaintiff in Suit No. 212. This application, being opposed by the sons of Hemanta, was rejected on 26th April 1930. Then he applied to be made party defendant. The application being opposed was similarly rejected on 26th June 1931. The order was upheld by the High Court on revision on 4th December 1931.
11. Now it appears from the Court's orders put in evidence that the applications by the present plaintiff was made on two grounds: (1) that he was the beneficial owner, Hemanta being a mere benamidar, (2) that he apprehended that the ostensible plaintiffs, viz. Hemanta's heirs, were in collusion with the defendants and would not prosecute the suit. The Courts took the view that the question of benami, which was disputed, need not be decided. On the other point there was an assurance from Hemanta's heirs that they would prosecute the suit. Thus the main grounds urged by the present plaintiffs failed. Another point, viz. delay in making the application, was also considered against the present plaintiff, but really the question of delay would not come in until there was an apprehension in the mind of the plaintiff's that Hemanta's heirs would not prosecute the suit. It appears that Hemanta's heirs as also the auction-purchasers opposed the applications of the present plaintiff. Yet having got the application out of the way finally on 4th December 1931, Hemanta's heirs on 11th March 1932 applied to withdraw the suit. This application was allowed with costs to the defendants. The oral evidence (vide defendant's witnesses 1 and 9) goes to show that the decree for costs was not executed. The circumstances go to show that Hemanta's heirs made a false statement when they represented to the Court that they would prosecute Suit No. 212. They could not have changed their minds so soon. The petition for withdrawal, Ex. 3, contains false statements once it is found that (1) Hemanta was benamidar, (2) his heirs did not intend to prosecute the suit. It is not their case that they were in need of funds and the present plaintiff would not give them any. Ex. 5, the written statement of the auction-purchasers in that suit, shows that they knew that Hemanta was benamidar for the present plaintiff. Therefore the latter's application was opposed by the other parties with full knowledge of the real position. It seems to me therefore that Mr. Das is right in contending that the Courts would not have rejected the application of the present plaintiff to be joined as party if they had known that he was the real owner and that the benamidar was going to withdraw from the suit both of which facts were fraudulently concealed from the Court.
12. In his judgment of 4th December 1931, Mitter J. remarked that the present plaintiff might have his remedy in a separate suit. Possibly this is that suit. There are cases in which a trustee has in breach of the trust failed to carry on a suit and the beneficial owner has been allowed to come in, and the suit did not end with the withdrawal of the parties: Sankaralinga Nandan v. Rajeswara Dorai (1908) 81 Mad 236, Sham Kumari v. Raja Rameswara Singh Bahadur (1905) 32 Cal 27, Kunju Kombi Achan v. Ammu (1932) 19 AIR Mad 31 and Mt. Jaimala Kunwar v. Collector of Saharanpur : AIR1934All4 . This is because the benamidar represents the real owner. It is open to the latter to apply to be joined in the action, but whether he is joined or not, he is bound by the result of the proceeding unless it is revoked : Gour Narain v. Sheo Lal Singh (1918) 5 AIR PC 140. Mr. Das has also referred us to Pulteney v. Warren (1801) 6 Ves Jun 72 for the purpose of showing that there is a principle upon which Courts should act, viz.
to relievo parties against that injustice occasioned by its own acts or oversights at the instance of the party against whom the relief is sought.
13. Mr. Das has also drawn our attention to oases of foreign Courts' judgments being attacked on the ground of fraud: Abouloff v. Oppenheimer (1883) 10 QBD 295 and Vadala v. Lawes (1890) 25 QBD 310. The same principle is embodied in Section 13, Civil P.C., and it is followed where the Court in the previous case was misled by fraud and not merely by perjured evidence: Kedar Nath Das v. Hemanta Kumari Dasi (1915) 2 AIR Cal 69 and Maninara Nath v. Hari Mondal (1920) 7 AIR Cal 126. It has been suggested by learned Counsel for the respondents that plaintiff's proper course was to bring a suit for declaration of title with consequential relief by way of injunction restraining Hemanta's heirs from proceeding with Suit No. 212. But because plaintiff might have done that, it does not follow that he is disentitled from seeking his remedy in another form. Hemanta's heirs gave out that they were going to prosecute Suit No. 212. The present plaintiff was therefore entitled to await the result of the suit. It was when the suit was withdrawn that his cause of action arose. It cannot be said that he was bound to bring a declaratory action before that. From this point of view it seems to me that, subject to other material issues being found in favour of the appellant, he would be entitled to have the order of withdrawal in Suit No. 212 vacated and to prosecute the said suit, further.
14. The next issue which may be considered is that of limitation. The Subordinate Judge has held that the suit is time-barred. This question has to be considered from the point of view of prayers (kha) and (ga). From that point of view the suit is not for setting aside a patni sale and the plaintiff is precluded by Order 23, Rule 1 (3), Civil P. C, from bringing a fresh suit for such relief. He must first have the order of withdrawal set aside whereupon the Suit No. 212 will revive: Partab Singh v. Bhabuti Singh (1913) 40 IA 182 at p. 192. Therefore so far as this point is concerned, the plaintiff's cause of action arose as from the date of the withdrawal of the Suit No. 212, viz. 11th March 1932, from which date he would get six years under Article 120, Limitation Act. Even if Article 95 be applicable and the period should be three years the suit was filed within time on 24th March 1933: A.V. Balakrishna Menon v. Rangan Pattar (1922) 9 AIR Mad 189. It is not necessary to determine here whether there would be any bar to the appellant as representing the debuttar estate being substituted as plaintiff in Suit No. 212.
15. It was pointed out for the respondents that the appellant's creditors had already withdrawn the greater part of the balance of the purchase money realized by the patni sale amounting to over Rs. 18,000, that the zamindar respondent would be entitled to a large sum as putni rent and that under Section 14 of the Patni Regulations he would be liable to indemnify the auction-purchasers. So it is contended that on equitable grounds the appellant should, if he should succeed at all, be put upon terms. In view of our findings this contention need not be determined. Having regard to the finding that the sale notices were duly published and the sale is not liable to be set aside, and the further finding that the suit is barred under Section 66, Civil P.C., the appeal must fail and the judgment of dismissal of the suit must be affirmed. Defendants 4, 5 and 6 are entitled to their costs in this Court. The costs will be divided equally as between defendants 4 and 5 on the one hand and defendant 6 on the other. Defendants 1 to 3 are also entitled to the costs which have already been deposited. Defendant 7 does not appear and will not get costs. The two applications for the admission of additional evidence will stand dismissed. Let the documents filed along with the applications be returned to the respective advocates.
16. I agree.