Patna High Court
Goiyan Dhangar vs Sheikh Gondar on 27 June, 1919
Equivalent citations: AIR 1919 PATNA 234
JUDGMENT Dawson Miller, C.J.
1. This is an appeal under Clause 10 of the Letters Patent from the judgment of a single Judge of this Court dated the 23rd April 1918. The plaintiff sued for a declaration of title to and recovery of khas possession of certain land of which he had been dispossessed by the defendant. The plaintiff proved his title under a registered sale-deed executed in his favour by the previous tenant in September 1913. The main defence was that the plaintiff's vendor, one Bandhu, was not the real tenant but was a benamidar of the defendant and, therefore, had no tide which be could transfer to the plaintiff. This story was not accepted by the learned Munsif, nor did the defendant succeed in establishing a further defence that he had not dispossessed the plaintiff but had been in possession of the property himself all along. A further point was taken by the defendant that the suit was bad for non-joinder of parties, the plaintiff's father being joint with the plaintiff although he had not been added as a party on the record. The Munsif thought that this did not affect the maintainability of the suit and he passed a decree in the plaintiff's favour. The defendant appealed to the Subordinate Judge and the only question which was argued before the Subordinate Judge, as appears from his judgment, was that the suit was not maintainable by the plaintiff. It appeared from the plaintiff's evidence that the land had been purchased by the plaintiff's father in the plaintiff's name and the plaintiff being, therefore, found to be a benamidar of his father, the Subordinate Judge came to the con-elusion, following certain decisions of the Calcutta High Court, that the plaintiff was not competent to maintain a suit for possession of immoveable property.
2. On appeal to this Court the case came before a single Judge who, relying on the authority of Atrabannessa Bibi v. Safatullah Mia 31 Ind. Cas. 189 : 22 C.L.J. 259 : 43 C. 504, upheld the decision of the Subordinate Judge. There was, at the time when that judgment was delivered, some conflict of opinion on this question in the decisions of the High Courts in India. Since then, however, the question has been finally determined by the judgment of their Lordships of the Privy Council in the case of Chowdhuri 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 : 1 U.P.L.R. (P.C.) 1 : 46 C. 566 (P.C.). Exactly the same question came for determination before their Lordships in that case as has to be determined now, and in their Lordships' judgment which was delivered by Mr. Ameer Ali it appears that the question for deter-mination there was whether a person who has no beneficial interest in the property which stands in his name or is acquired in his name can maintain an action in respect thereof. The facts of that case were very similar to the present. There was evidence to show that the purchase by one Mohesh Lal of a share in certain villages which were the subject-matter of the suit was really a purchase for the benefit of another person and that Mohesh Lal having purchased in that manner was the benamidar of the real beneficial owner. In that case as in the present case Mohesh Lal had persistently denied that he was a benamidar or that he had no beneficial interest in the property. The High Court came to the conclusion that there was good ground for supposing that Mohesh Lal was really only a benamidar. Now, in the present case, the Subordinate Judge and the learned Judge of this Court have also come to the conclusion upon the plaintiff's own evidence, in which he says that the property was purchased by his father in his name, that there was sufficient to show that the plaintiff wag really a benamidar. From the judgment of their Lordships of the Privy Council, to which I have already referred, it appears that they treated the case as one of a claim made by a benamidar for the possession of immoveable property and upon that hypothesis came to the conclusion that there was no reason why a benamidar should not maintain an action in his own name without having the beneficial owner added as a party. The following passage which occurs in that judgment seems to me to make the matter quite clear:
As already observed, the benamidar has no beneficial interest in the property or business that stand in his name; he represents, in fact, the real owner, and so far as their relative legal position is concerned he is a mere trustee for him. Their Lordships find it difficult to understand why, in such circumstances, an action cannot be maintained in the name of the benamidar in respect of the property although the beneficial owner is no party to it. The bulk of judicial opinion in India is in favour of the proposition that in a proceeding by or against the benamidar, the person beneficially entitled is fully affected by the rules of res judicata. With this view their Lordships concur. It is open to the latter to apply to be joined in the action; but whether he is made a party or not a proceeding by or against his representative in its ultimate result is fully binding on him." Then the judgment points out that in the case of a contest between the alleged benamidar and the alleged real owner other considerations might arise with which their Lordships were in that judgment not concerned. It seems to me that the circumstances of the present case are entirely covered by the decision to which I have just referred. There is no dispute by the beneficial owner, if it could be taken, as, the learned Subordinate Judge has found, that the plaintiff was only a benamidar, that he has any adverse right which the benamidar's action in any way interferes with. There is no dispute between these parties. The beneficial owner, the benamidar's father, has not thought fit to intervene in the action or to interfere in any way, and the only contest is as between the benamidar and the defendant seeking to obstruct his possession.
3. It seems to me quite clear that the decision of the Judicial Committee to which I have just referred applies to the present case and that this is just the class of action in which they have laid down that a suit by a benamidar for the possession of immoveable property is maintainable in India. In these circumstances, the decision of the learned Judge affirming the decision of the Subordinate Judge must be set aside and the decree of the Munsif restored. We think that the appellant is entitled to his costs both here and, in the two lower Courts and the result is that the appeal is allowed with costs here and of the appeal to the Subordinate Judge and of the second appeal to this Court.
Adami, J.
4. I agree.