Guyan Dhanger vs Shaikh Gonder

Sir Ali Imam, Kt., J.—The plaintiff preferred this suit for the declaration of title to and recovery of possession of the land in suit. The lower Appellate Court has reversed the decision of the Munsif and has held that the plaintiff could not maintain the suit as he was only a benamidar. It appears that the plaintiff in his evidence had admitted that it was his father who had purchased the property but in the plaintiff''s name. On the strength of this admission the lower Appellate Court had held that the plaintiff was a benamidar. In appeal it is contended on his behalf that on the authority of Upendra Nath Nag Chowdhury and Others Vs. Bhupendra Nath Nag Chowdhury and Others, the subsequent conduct of the parties and the surrounding circumstances should have been taken into consideration by the lower Appellate Court before coming to a finding on the question of benami. On the other hand reliance is placed on 6 M.I.A. 53 (Privy Council) for the proposition that where purchase of real estate is made by a Hindu father in the name of his son the presumption of the Hindu Law is in favour of its being a benami, and that the burden of proof lies on the party in whose name it was purchased to prove that he was solely entitled to the legal and beneficial interest in such purchased estate. Attention is also drawn to Moulvie Sayyud Uzhur Ali vs. Mussumat Bebee Ultaf and 13 M.I.A. 395 (Privy Council) ; 2 Suth. P.C.J. 343; 2 Sar. P.C.J. 571; 20 E.R. 599.

The admission of the plaintiff that the land in suit was purchased by his father is clear and unequivocal. The point was not left in any doubt involving such investigation as was necessary for decision in the case reported as Upendra Nath Nag Chowdhury and Others Vs. Bhupendra Nath Nag Chowdhury and Others, The lower Appellate Court was, therefore, right in holding that the purchase in plaintiff''s name was benami. It is, however, contended that even if the plaintiff is only a benamidar that ought not to stand in the way of his maintaining the suit. For this proposition reliance is placed on Dagdu v. Balvant Ramchandra Natu 22 B. 820; 11 Ind. Dec. (N.S.) 1130 and Nand Kishore Lal, Anmoli Bibi and Another and Bhole Bibi Vs. Ahmad Ata and Another, .

Mr. S.N. Sahay, Counsel for the defendant, meets this contention by quoting the ruling reported as Atrabannessa Bibi Vs. Safatullah Mia and Others, . The present suit is for possession of land and he contends that on a review of a very large number of decisions referred to in that case, the Calcutta High Court regards it as a doctrine well settled in that Court that a benamidar is not competent to maintain a suit for possession of immoveable property. I accept the contention of the defendant on this point and hold that a benamindar cannot succeed in his suit for possession of immoveable property.

The learned Vakil appealing on behalf of the plaintiff-appellant further contends that even if the plaintiff is a trespasser be can maintain the suit on the authority of Musammat Sahodra Kuer and Another Vs. Gobardhan Tiwari and Others, . This contention, if accepted, involves a complete change of the entire frame of the plaintiff''s suit. He rested his claim in the plaint on the allegation that he was purchaser of the land in suit and that he had a good title thereto but was wrongfully dispossessed by the defendant. To allow the contention of the learned Vakil to prevail would be to transform the entire case of the plaintiff. Moreover, the present case is distinguishable from the case referred to above, lam unable, therefore, to attach any importance to the point raised.

As a last resort it is urged on behalf of the plaintiff-appellant that the decree of the Munsif should not have been reversed on account of the father of the plaintiff not having been made a party to the suit. This contention is without any substance inasmuch as the plaintiff, who has been held to be only a benamidar, cannot maintain a suit for possession of immoveable property.

The appeal is dismissed with costs.