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Jagabandhu Dutt Vs. Rajani Kanta Pal and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in37Ind.Cas.790
AppellantJagabandhu Dutt;rajani Kanta Pal
RespondentRajani Kanta Pal and ors.;jagabandhu Dutt
Cases ReferredCkundra Kaminy Delea v. Ram Ruttun Pulluck
Excerpt:
land revenue sales act (xi b. c. of 1859), section 36, object of - benami purchase, right of third party to raise question of--appeal, dismissal of--discussion of matters affecting respondents, propriety of. - .....of the defendant no. 1 and that the real purchaser was, in fact, the defendant no. 1. the learned munsif also found, for reasons which commended themselves to him, that as between the plaintiff and the defendant no. 1, the plaintiff was entitled to recover the share he sued for, less a particular share which the plaintiff alleged he acquired title to by a document called a mukhtiarnama. against that decision the defendant no. 2 appealed to the learned district judge. the learned district judge on hearing the appeal agreed with the finding of the munsif that the defendant no. 2 was a benamidar of the defendant no. 1, and that, therefore, he had no interest in the property. prima facie, therefore, directly the learned district judge came to the conclusion that the defendant no. 2.....
Judgment:

1. These are two appeals preferred against a decision of the learned District Judge of Chittagong, dated the 13th February 1914, reversing the decision of the Munsif of Satkhira. The plaintiffs brought the suit to recover a share in a certain revenue-paying estate sold at a revenue sale for arrears of revenue and said to have been purchased by the defendant No. 1 in the benami name of the defendant No. 2 and alternatively he asked that if the sale was a valid sale, he might be given his share in the surplus sale-proceeds which had been withdrawn from the Collectorate by the defendant No. 1. The case came on for trial before the Munsif who found, first of all, that the defendant No. 2 was a benamidar of the defendant No. 1 and that the real purchaser was, in fact, the defendant No. 1. The learned Munsif also found, for reasons which commended themselves to him, that as between the plaintiff and the defendant No. 1, the plaintiff was entitled to recover the share he sued for, less a particular share which the plaintiff alleged he acquired title to by a document called a mukhtiarnama. Against that decision the defendant No. 2 appealed to the learned District Judge. The learned District Judge on hearing the appeal agreed with the finding of the Munsif that the defendant No. 2 was a benamidar of the defendant No. 1, and that, therefore, he had no interest in the property. Prima facie, therefore, directly the learned District Judge came to the conclusion that the defendant No. 2 had no interest in the property, provided the point was capable of being entered into in the suit, the rest of his judgment was unnecessary and improper because no appeal had been Sled by the defendant No. 1, and having come to a clear conclusion that the defendant No. 2 had no interest in the property, it was not necessary for the Judge to enquire into the other matters in order to adjust the rights of the parties before him. The case that has been made before us is that the finding as to the defendant No. 2 being a benamidar was a matter which was excluded from the consideration of the Court, having regard to Section 36 of Act XI of 1859, under which these revenue-paying estates are sold for an ears of revenue. That Section is in these terms: 'Any suit brought to oust the certified purchaser as aforesaid on the ground that the purchase was made on behalf of another person not the certified purchaser or en behalf partly of himself and partly of another person, though by agreement the lame of the certified purchaser was used, shall be dismissed with costs.' The matter has been the subject of judicial decisions and the matter is concluded so far as this Court is concerned. In the case of Ckundra Kaminy Delea v. Ram Ruttun Pulluck (1) it was held that Section 36 of Act XI of 1859 was passed in order to prevent the true owner from disputing the title of his benamidar (certified purchaser), and not to preclude a third party from enforcing his claim against the true owner in respect of the benami property. That is exactly the case here. Section 36 is, therefore, no bar to the plaintiff's right in the present suit. That being so, directly the Judge came to the conclusion on the appeal before him that the defendant No. 2 had no interest in the subject-matter in dispute and was merely a benamidar, it was not open to him in that appeal to go into the other matters that affected purely the rights of the respondents in that appeal and to vary the judgment of the first Court in the manner he has done in the course of his judgment. The result, therefore, is that the appeal of the plaintiff, namely Appeal No. 324 of 1915, must be allowed with costs and the appeal of the defendant No. 2, that is, Appeal No. 337 of 1915 must be dismissed with costs; that is to say, the decree of the Munsif will be restored with costs to the plaintiff in all Courts.


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