1. In the suit out of which this, appeal has arisen the plaintiff who is the appellant before this Court sued for a declaration that she had lakheraj and jamai right purchased at auction sale in respect of some 3-annas odd share left by her husband and that she was entitled to the 16-annas rent of the land in question and the defendant had no right in respect of the land.; She also asked for a perpetual injunction to restrain the defendant from obstructing her in the realisation of the rents of this land. If it should be found that the plaintiff was not in possession of the land then she sued to recover possession. Her case, as a perusal of the plaint will make quite clear, is that her husband bought the lakheraj right in the land in his own name and with his own money. Subsequent to this he purchased the tenants' right in the land on the 24th of February at a sale in execution of a decree in the name of the defendant No. 1, obtained a certificate of sale and in virtue of this sale certificate obtained possession of the property. Some of the land he kept in his own possession and the rest was let out to tenants. The kabuliyats were in the name of the defendant No. 1 because the sale certificate stood in his name. Umesh Chandra Mukerji the husband of the present plaintiff died leaving no son and the defendant No. 1 taking advantage of this circumstance has persuaded the tenants not to pay rent to the plaintiff. From this the plaintiff realises that the defendant intends to take possession of the' property left by her husband and hence she has brought this suit asking that the Court will declare that she has lakheraj and jamai title purchased at auction sale of the 3-annas odd share left by her husband and also a declaration that she is entitled to the 16-annas share of the rent, that the defendant has no title to the property and that her possession may be confirmed. If by any circumstances it be found that she is not in possession then she may recover possession. She also asked for an account from the defendant of any rent that the defendant might have realised from the tenants. The case of the defendant No. 1 who alone has contested this case is that he is the real owner of the property and that Section 66 (old Section 317 of the C.P.C.) is a bar to the suit.
2. The Trial Court found that defendant No. 1 was the benamdar of the husband of the plaintiff, that the plaintiff, had been in possession from the date of purchase up to the institution of the suit, and that the defendant was liable to render accounts to the plaintiff. He found that the plaintiff's suit was not barred by the provisions of Section 68 and ordered that her jamai title and nishkar title to the lands in suit should be declared. The defendant was restrained from interfering with her possession. He was also to render her accounts. Defendant No. 1. appealed to the District Court. The learned Subordinate Judge held that the plaintiff had been dispossessed from the land before the suit and was not now in possession, that the defendant was. the benamdar of the plaintiff's husband, that, Section 66 was a bar to the.suit and,ordered that the suit of the plaintiff so far as it related to the jamai right of the plaintiff would be dismissed.
3. The plaintiff has appealed to this Court.
4. Her case is if I have understood it rightly as follows:
(1) That the lower Court has wrongly found that she is not in possession and as she is in possession she is entitled to maintain a suit for confirmation of, possession. In support of this contention she relies on the case of Sasti Charan Nundi v. Annapurna 23 C 699 : 12 Ind. Dec. (N.S.) 465.
(2) That by payment of rent to the landlord a new tenancy has been created in her favour and that she has a title independent of the purchase by her husband in the name of the defendant and to this title the provisions of Section 66 are not a bar.
(3) That the purchases made by the defendant of the tenancy rights in 1915-16 were made by the defendant as her agent and hence she is entitled to a declaration of her tenancy under these purchases.
5. Now it seems to me on the facts as found by the learned Subordinate Judge the plaintiff's case must fail and that Section 66 is a bar to her suit.
6. This suit is governed by the old Code and Section 317 of that Code which corresponds to Section 66 of the present Code is as follows:
No suit shall be maintained against the certified purchaser on the ground that the purchase was made on behalf of any other person, or on behalf of some one through whom such other person claims.
7. Now the case of the plaintiff as made in her plaint is clearly this, that the property was purchased by her husband in the benami of the defendant No. 1. It is nothing else although the learned Advocate for the appellant has spent a day and a half in trying to persuade us that the case of the plaintiff was that she had an independent title by paying rent to the zemindar. Reading the section as it stands it is quite immaterial whether the plaintiff was or was. not in possession at the time of the suit. It seems to me that a declaratory suit equally with a suit to recover possession comes within the mischief of the section.
8. The plaintiff has relied on the case of Sasti Charan Nundi v. Annapurna 23 C 699 : 12 Ind. Dec. (N.S.) 465 and asks us to hold that if she is in possession then Section 66(317) is no bar to her suit. With due respect to the learned Judges it is very-difficult to reconcile this decision with the plain words of the Statute. The learned Judges remark: 'Section 317 does not make all benami transactions invalid: nor, read with Section 316, does it confer upon the ostensible purchaser a title as against the real purchaser. It merely declares that a suit shall not be maintained against the certified purchaser on the ground that he was only the -ostensible purchaser. The ostensible purchaser could not insist on his certified title to recover from the real owner in possession. If, therefore, the defendant sets up the sale certificate as an answer to the plaintiff's case, there is nothing to prevent the Court from going into the question whether that sale certificate did or did not confer a valid title upon the defendant as against the plaintiff. It is not a case in which the plaintiff, relying on a sale certificate, seeks to obtain a decree for possession against the ostensible purchaser. Resting, as it does, on an existing possession, we do not think that it is a suit of the nature prohibited by Section 317 (present Section 66).'
9. If I understand the learned Judges aright they would seem to hold that in a suit for confirmation of possession, the plaintiff has not to prove his title for obviously Section 66 would be a bar to his maintaining a title based on a benami purchase. Neither do I understand what is meant by. a title resting on existing possession. Surely it is not sufficient for a person asking for confirmation of possession to say 'I am in possession. Prove that I have no title.' As far as I am aware this case stands alone. It has never been followed but has been dissented from. See the case of-' Hanuman Persad Thakur v. Jadunandan Thakur 29 Ind. Cas. 787 : 20 C.W.N. 147 : 43 C.20 where Cox, J. points out that if. accepted as good law it would practically; repeal the whole section. See also the case of Bishan Dial v. Gaziuddin 23 A. 175 : A.W.N. (1901) 44. The learned Judge, Strachey, C.J., in considering the case of Sasti Charan Nundi v. Annapurna 23 C. 699 : 12 Ind. Dec. (N.S.) 465, remarks that if. that case holds that Section 317 only applies when the plaintiff being out of possession seeks to recover possession and can never apply to a suit by a plaintiff in possession for a declaration that the certified purchaser out of possession is not the real purchaser he cannot agree with that. I am myself of opinion that it is immaterial whether the plaintiff is in possession and seeks a confirmation of possession or whether he is out of possession and seeks to recover possession. In either case Section 66 applies.
10. The appellant seems also to have attempted somewhat faintly to make out that the property was conveyed to her husband by his being put in possession after the purchase. How this could give the plaintiff any title in the absence of a conveyance as required by the Transfer of Property Act, 1 admit I do not understand (2). The next argument advanced by the appellant is that she or rather her husband acquired a title independent of her purchase by paying rent to the zemindar. I must admit that this argument was put forward in a somewhat shadowy form. I presume that the learned Advocate meant that she or rather her husband had been recognised by the zemindar. Otherwise I do not understand how any title could be acquired by the mere payment of rent. In order to establish or to attempt to establish this part of his case the learned Advocate was obliged to take us through a large portion of the evidence of the case. The mere necessity for doing this made it at once evident that this had never formed, any part of the case of the appellant in either of the. Courts below.
11. It was perfectly obvious that this had never formed any part of the case of the appellant in the lower Courts and it is somewhat difficult to imagine how the learned Advocate for the appellant could have thought that he would be allowed for the first time in second appeal to make out a case which depended on findings of facts which had never been even suggested in the lower Courts.
(3) The appellant lastly attempted to argue that the purchases made by the. defendant of certain tenancies as the result of certain decrees obtained in 1915 and 1916 were made by the defendant as the agent of the plaintiff.
12. Here again the same difficulty, confronts as viz., that this case that these purchases were made by the defendant as the agent, of the plaintiff finds no place in the case of the plaintiff either in her plaint or in the case as presented to the lower Courts. It is obviously a question of, fact and cannot be raised for the first time, in second appeal.
13. In para. 7 of the plaint the plaintiff distinctly sets out that after the death of her husband her son-in-law managed her properties. It is not sufficient to say that a person, is an agent. It is necessary to set out what is the scope of the agency in order to, determine whether any particular act was done by the person as an agent or not and, for this purpose a definite case would have to be made out. The only suggestion in the plaint is that the defendant looked after the suits of the plaintiff.
14. There is no suggestion that it was any part of his duty to purchase properties on behalf of the plaintiff.. The case of Ganga Baksh v. Radar Singh 22 A. 434 at p. 437 : A.W.N. (1900) 152 : 9 Ind. Dec. (N.S.) 1327 may be referred to in this connexion.
15. The result is that the appeal must fail and is dismissed with costs.
16. I agree with the order proposed by my learned brother.
17. The plaint in this case was framed in open disregard of the provisions of Section 66, C.P.C The only ground upon which the bar might have been avoided was not taken in either of the Courts below and in the result the defendant retains and enjoys the fruits of his fraud which has been so clearly established. It is only to be hoped that this case will serve as an example for dissuading people from indulgence in the pernicious habit of creating benami title and in some measure further the object with which Section 66, C.P.C, was enacted.