Dasi Chamar vs Ram Autar Singh

Ross, J.—This is an appeal by the defendant No. 1 against the decree of the Subordinate Judge of Saran reversing the decree of the Munsif of Chapra in a suit brought by the plaintiff for possession of 1 bigha 1 Katha and 7 dhurs of land. The plaintiff alleged that one Palak Chamar was the cousin of defendant No. 1 and that two of them together owned 1 bigha 10 Katha and 5 dhurs of land. Three years before, Palak died without heirs other than defendant No. 1 who on the 24th of June 1915 sold the property in suit to the plaintiff for Rs 200, which the plaintiff paid to Kawaldeo Narayan Singh, the landlord of the defendant to whom the defendant was indebted in that amount. But during the Survey operations the defendant No 1 set up defendant No. 2 as the son of Palak Chamar and got his name recorded in the Record of Rights for Palak''s share. The defence was that the defendant No. 2 was the son of Palak Chamar, that the defendant No. 1 did not owe anything to the landlord Kawaldeo Narayan Singh but that, on the contrary, he had agreed to sell his share of the property to Kawaldeo Narayan Singh for Rs. 200, but the latter had fraudulently got the sale-deed drawn in respect of the whole property and executed in the name of the plaintiff who is his benamidar with a false recital as to the payment of the money.

The Munsif found that the plaintiff was a nominal purchaser and dismissed the suit on this and other grounds. The Subordinate Judge, however, held that Palak and Dasi, the defendant No. 1, were indebted to the landlord, that the plaintiff was the real purchaser, and that consideration passed, and he decreed the suit in appeal. It may be noted that the defendant No 2 was not a party to that appeal.

In the present appeal the first point taken is that, in the absence of defendant No. 2, the plaintiff''s title cannot be determined so far as the share of the defendant No. 2 is concerned. It is argued that the decree of the Munsif was in favour of defendant No. 2 and, therefore, he could not appeal and, as he was not made a party to the appeal by the plaintiff, his rights could not be determined in that appeal and Cannot be determined now. This contention is undoubtedly sound and the rights of the defendant No. 2, if any, stand unaffected by this appeal.

The second contention is, that the judgment of the appellate Court is not in accordance with law on the question of the farzi nature of the plaintiff''s purchase. It is contended that the Munsif has dealt elaborately with the question of benami, he has considered the evidence and has given several reasons for his conclusion, whereas the Subordinate Judge has not dealt with the evidence at all but has based his decision on one single consideration. I do not think that this is a fair description of the judgment of the Subordinate Judge. He begins by saying that the lower Court had overlooked a very important piece of documentary evidence. This implies that he had considered what the Munsif has said on this subject and he came to the conclusion that the really decisive consideration was the inference to be drawn from this particular document. With that inference and its soundness I am not concerned. But I cannot hold that the treatment of the case by the Subordinate Judge on this point is not in accordance with law.

Then, it is argued that the sale was without consideration, because the debt which it purported to pay off was barred at the time when it was acknowledged and there was no promise to pay it. This argument might have required consideration, if it had been found that Kawaldeo Narayan Singh, to whom the debt was due, was the real purchaser, although even in that case it could hardly be said that the sale was without consideration. But here it has been found as a fact that the plaintiff was the purchaser, no question of the debt of Kawaldeo Narayan Singh being barred arises. It must be taken on the findings that consideration was paid by the plaintiff as an independent and real purchaser of the holding by his parting with Rs. 200 to Kawaldeo Narayan Singh. Consequently, in no view can the sale be without consideration.

Lastly, it is argued that the learned Subordinate Judge erred in admitting certain chithas in evidence which the Munsif had refused to admit on the ground that they were not stamped according to law. What happened exactly was, that the documents were admitted in evidence and exhibited and subsequently when it was pointed out that they were not properly stamped the Munsif removed them from the record of the evidence. But section 36 of the Stamp Act prohibits such a procedure, enacting that where an instrument has been admitted in evidence its admission shall not be called in question at any stage on the ground that it has not been duly stamped. On this point, therefore, the Subordinate Judge was undoubtedly right. The chithas were evidence and he was entitled to rest his finding on them. The appeal must, therefore, fail and is dismissed with costs.