Keshri Mull and Another vs Sukan Ram

Scroope, J.—The plaintiffs brought the suit out of which this appeal arises for a declaration that the disputed properties were purchased by the defendant at an auction-sale on 17th March 1920 in an execution case as an agent of the plaintiffs for the plaintiffs and with the money of the plaintiffs and they also sought for a declaration they were the owners of the disputed properties and were in possession of them and they sought for confirmation of their possession.

Their case was that the defendant had been their servant or munib and used to look after their litigation, and that they had sent him to Court with instructions to get their pleader to bid for the property of one Kailaspati Singh which was up for sale in Court in execution proceedings on foot of a mortgage decree obtained by the plaintiffs against Kailaspati Singh. The defendant, it is alleged, could not find the pleader and purchased the property in his own name; but it is the plaintiffs'' case that they paid the earnest money and obtained the sale certificate in the name of the defendant and got his name registered in Register D and have all along been in possession of the properties. Subsequently in 1925 defendant executed a bazidawa in favour of the plaintiffs, but when the plaintiffs sought for mutation in the Land Registration Department, defendant objected, with the result that the application of the plaintiffs was rejected. There were also proceedings u/s 145, Criminal P.C., in respect of certain khudkasht lands within the property which ended adversely to the plaintiffs; hence the suit.

The case of the defendant was that he had purchased the property for himself, paid the money and had been in possession ever since and that the bazidawa-deed was a nominal transaction to conceal the defendant''s ownership of property. The Subordinate Judge of Gaya decreed the suit finding, that the defendant purchased the property as agent of the plaintiffs and that the plaintiffs had been in possession even since and he held that the bazidawa-deed was a genuine transaction; and he also found that Section 66, Civil P.C., was not a bar to the suit, defendant having purchased the property not as a mere benamidar but as an agent.

The District Judge of Gaya however reversed the decision and dismissed the suit holding that the defendant purchased property as benamidar for the plaintiffs whose servant he was and that Section 66 is therefore a bar to the suit. Mr. Manuk, the learned advocate for the appellants-plaintiffs, now in appeal faced with the finding of fact that the defendant purchased the property as benamidar and in order to get over the difficulty in which Section 66 places him on this finding, has first taken up, what in nay opinion, is an entirely unarguable position, namely, that his suit is not a suit for declaration of his title. This cannot possibly be maintained in face of para. 12 of the plaint which runs as follows:

That these plaintiffs are still in possession of the said mauzas, but the said facts have caused defect in their title, hence they seek relief in Court;

vide also the prayer portions of the plaint:

''The Court may be pleased to hold and declare that the defendant purchased the disputed mauzas as agent of and for the plaintiffs and with their money at a public sale held on 17th March 1920 in Execution Case No. 599 of 1920 of the First Court of the Sub-Judge at Gaya.'' ''(ii) The Court may be pleased to adjudicate and hold that in the above circumstances and also on execution of the deed of relinquishment of claim dated 5th August 1925 the said properties belong to these plaintiffs and that they are in possession of the same.'' ''(iii) The possession and occupation of the plaintiffs over the said properties may be confirmed, but if for any reason the plaintiffs be considered to be out of possession then possession over the same may be awarded to them''.

At one stage the learned advocate argued that it was merely a suit for confirmation of possession; but obviously in the face of the land registration decision and the Section 145 case plaintiffs cannot be held to be in possession for as to the concurrent findings of the Courts below that they are in possession what they mean is that they were in possession up to the time of these proceedings. The suit thus becomes one in ejectment and they have therefore to establish their title.

Then it was contended that it would suffice if the plaintiffs obtained a declaration that the defendant was not to interfere with their possession; and again that the suit was one for specific performance of contract but in my opinion all these contentions are equally unsustainable and it is unnecessary to labour the point further.

The second branch of the argument for the plaintiffs-appellants merits more consideration: it is contended that assuming the suit was title suit it did not fall within the mischief of Section 66, Civil P.C., because the appellants were in possession and that they have acquired a title by this fact plus the fact of the deed of relinquishment in their favour and the fact that the purchase money was theirs; in fact a title by waiver is set up and Mr. Manuk relies very strongly on certain observations of their Lordships of the Privy Council in Mt. Buhuns Kowur v. Lalla Buhooree Lall (1872) 14 MIA 496 (PC) and Lokhee Narain v. Kalypuddo Bandopadhya (1875) 2 IA 154 (PC). I emphasise the word "observations" because the facts of these two cases are not on all fours with the present case, both the suits having been brought by the certified purchaser and the Privy Council held that Section 66 was no bar to the true owner as defendant setting up his title; here the alleged true owner is the plaintiff.

So far as the question of waiver is concerned it is dealt with in both the decisions and their effect is thus summarised by Sir Arthur Strachey, C.J., in Bishan Dial v. Ghaziuddin (1901) 23 All 175:

they say that the former decisions that where the real owner has been permitted to have or retain possession by the ostensible purchaser the latter cannot insist on his certified title to recover do not rest on the ground of waiver but upon the legality of benami transaction except in so far as such transactions are restricted by some express statutory provisions ... they also say that the mere permission to hold possession cannot alone give or transfer a title from the benamidar to the real owner.

Mr. Manuk''s argument based on waiver thus receives no support from either of these decisions nor does the Privy Council decision in Muhammad Abdul Jalil Khan v. Muhammad Obaid Ullah Khan AIR 1929 PC 228 help the appellants. In that case the true owner had a title by limitation and the suit was decided on that basis. It is true that their Lordships expressly declined to decide what would have been the result if the true owner had been in possession for less than 12 years. Their Lordships dealing with this hypothesis confined themselves to observing that in such a case he will no doubt have to aver and prove as part of his cause of action that the auction-purchase was made on his behalf, "but that is not the case here," says the judgment:

and their Lordships express no opinion about this question as it has not been argued before them.

So far then as the learned advocate seeks to take the case out of Section 66 by the fact that he is in possession, the weight of the case law is clearly against him. Sasti Churn Nundi v. Aunopurna (1896) 23 Cal 699, is a case in his favour but that decision must be regarded as obsolete and no longer good law as it was not followed in two later Calcutta decisions, namely, Hanuman Pershad Thakur v. Jadu Nandan Thakur (1916) 43 Cal 20 and Umasasi Debi v. Akrur Chandra AIR 1926 Cal 542 as well as in Bishan Dial v. Ghaziuddin (1901) 23 All 175.

As was pointed out in both these Calcutta decisions, if Sasti Churn Nundi v. Aunopurna (1896) 23 Cal 699 is good law, then its effect is practically to repeal Section 66 and the same objection applies to the following, Monappa v. Surappa (1887) 11 Mad 234. In my opinion for the application of Section 66 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 it.

As to Patrachariar v. Ramaswami Chettiar AIR 1919 Mad 942 that was a case of a paid agent using his master''s money and has been rightly distinguished by the learned District Judge as not applying to the facts of the present case.

Finally Mr. Manuk argued that he still has the bazidawa to fall back on and that it operates as a conveyance and also that it amounts to an estoppel against the defendant as in it he undertook not to interfere with the plaintiffs'' possession. That a bazidawa can pass title in such a case is according to

Mr. Manuk the result of the judgment of their Lordships of the Privy Council in Balaram v. Naktu AIR 1928 PC 75. In that judgment, he again contends, there are certain observations which support his assertion that the bazidawa-deed gives him a title and puts him on a better footing than if he merely had to rely on his possession. That was a suit for specific performance of a contract for sale based on a certain letter and the Judicial Committee held that the suit is barred by Section 66, Civil P.C. As to the observations on which Mr. Manuk relies, they were made in the following circumstances. Their Lordships had under consideration the authenticity of a certain letter on which the plaintiff based his claim for specific performance of the agreement and in considering the genuineness of that letter they were taking into consideration as one of the tests, the fact that the defendant had not executed a conveyance or deed of release in respect of the village, vide p. 14 (of 108 I.C.), in Balaram v. Naktu AIR 1928 PC 75.

Mr. Manuk argues from this discussion that a conveyance and a deed of release are on the same footing but it is clear their Lordships were not considering the matter from that point of view; they were only applying a test of the genuineness of the deed. It is well established that title cannot pass by a mere admission which is what the bazidawa contains with an undertaking not to interfere with plaintiffs'' possession vide for instance, Jadu Nath Poddar v. Rup Lal Poddar (1906) 33 Cal 967: "it is well settled" says Mukherjee, J., in that case, "that title to land cannot pass by admission where the statute requires a deed;" and the same view in effect was taken in the case to which I have referred already in Bishan Dial v. Ghaziuddin (1901) 23 All 175: Sir Arthur Strachey, C.J., there observed: in cases arising after the passing of the Transfer of Property Act and subject to its provisions, it is more than ever true that the mere permission to hold possession cannot alone give or transfer a title from the benamidar to the real owner, nor do I see how, in the case of property exceeding Rs. 100 in value, such a transfer could legally be effected except by means of a registered instrument."

Two other cases may be referred to also in this connexion, namely, Rajeswar Prosad Bhakat and Others Vs. Bhupendra Narayan Sinha Bahadur and Others, and a decision of this Court in Munshi Gobind Prasad Vs. Lala Jagdeep Sahai, : appellants therefore can get no benefit from this deed of relinquishment. So far as the estoppel is concerned, the matter seems to me to be clear; it is not a case of estoppel: plaintiffs were not induced to change their position in any way by the execution of the bazidawa. It is true that the result of the decision may, on the facts found, be that the defendant acquires a valuable property by fraud, but the plaintiffs have only themselves to thank for the result which is what the legislature intended; and the case serves as useful illustration of the dangers of indulging in benami transactions.

In my opinion therefore the decision of the learned District Judge is quite correct and I would dismiss the appeal with costs.

Mohammad Noor, J.--I entirely agree. I would however like to add a few remarks of my own. The general result of the case law on Section 66, Civil P.C., and on the corresponding section of the Old Codes is that the suit of a plaintiff, who bases it on the ground that he was the real purchaser at a Court-sale and that the certified purchaser was not really so, must fail. But if the real owner is in possession of the property and the certified purchaser wants to take advantage of his name being in the sale certificate and brings the suit on that basis, the real owner can successfully defend it on the ground of his being the real purchaser.

In my opinion, under the law as contended by Mr. Manuk the title is with the real owner, but he is debarred u/s 66, Civil P.C., to make that title a ground of a suit as a plaintiff, though that title is a good defence in a suit brought by the certified purchaser. Furthermore, if the plaintiff does not base his suit upon the title which in my opinion, he undoubtedly has on account of his being the real purchaser at the Court-sale, but on some other title subsequently acquired, his suit does not come within the mischief of Section 66, Civil P.C.

If, for instance, the plaintiff continues in possession for more than 12 years, this possession by itself gives him a title independent of the title which he had on account of his being the real purchaser at the Court-sale and if he is subsequently dispossessed his suit based upon this possessory title, will, as was pointed out In the case of Muhammad Abdul Jalil Khan v. Muhammad Obaid Ullah Khan AIR 1929 PC 228 succeed.

In this particular case Mr. Manuk has attempted to show that his suit is not based upon the ground of the plaintiff being the real purchaser at the Court-sale but is based upon something which happened since that sale, namely, the possession and the bazidawa. The difficulty in the way of Mr. Manuk is, first of all, that the plaint clearly shows that the suit was based upon the ground that the plaintiff was the real purchaser at the Court-sale, and therefore was based on the original title acquired at the Court-sale, and not upon any title subsequently acquired as was the case in Muhammad Abdul Jalil Khan v. Muhammad Obaid Ullah Khan AIR 1929 PC 228, in which the title was acquired subsequent to the sale by 12 years'' possession. Assuming however that we can read the plaint as Mr. Manuk asks us to read, none of these two facts, namely, the possession or the bazidawa or both, is sufficient to entitle the plaintiff to get a decree for possession. As has been pointed out by my learned brother, neither the bazidawa nor the possession for less than the statutory period creates any title.

Therefore if the plaintiff can succeed, he can succeed only on the ground that he was the real purchaser at the Court-sale, and this he cannot do on account of the express prohibition of Section 66.

I therefore agree in holding that the appeal fails and must be dismissed with costs.