1. The plaintiff brought this suit for establishment of his title to the disputed land and recovery of khas possession of it claiming as auction-purchaser at a revenue sale.
2. One of the pleas taken in defence was that the plaintiff was a benamidar. The first Court decided this issue and the other issues raised in the plaintiff's favour and granted him a decree. On appeal the lower Appellate Court came to a contrary decision on the issue of benami and on that ground alone dismissed the suit. It has been held, however, by the Judicial Committee of the Privy Council in the case of Gur Narayan v. Sheo Lal Singh 49 Ind. Cas. 1 : 23 C.W.N. 521 : 17 A.L.J. 66 : 36 M.L.J. 68 : 9 L.W. 335; I.U.P.L.R. (P.C.) 1 : 46 C. 566 : 12 Bur. L.T. 122 : 46 I.A.I. (P.C.) that a benamidar can maintain a suit for recovery of possession. The lower Appellate Court having dismissed the suit solely on the finding that the plaintiff as a mere benamidar cannot maintain the suit, his judgment must be reversed and the case remanded to him for the decision of the other issues that arise in the case.
3. The learned Vakil for the respondent does not dispute the contention now raised on behalf of the plaintiff-appellant but asks that at the re hearing of the appeal the beneficial owner may also be made a party. I can make no order in this matter when the beneficial owner is not before me. It will be open to him to make such an application in the lower Appellate Court.
4. The appeal is accordingly decreed and the judgment and decree of the lower Appellate Court are set aside and the case remanded to that Court for re-hearing and decision according to law.
5. The appellant is entitled to a refund of the Court fee paid on the memorandum of appeal under Section 13 of the Court Fees Act.
6. The parties will bear their own costs of this appeal.