Authored By : Thomas William Richardson, Beachcroft

Thomas William Richardson, J.

1. The suit out of which this appeal arises was a suit for ahalf share of a holding comprising twelve bighas odd, which stood originally inthe name of one Jagannath Mitra. The last male holder of the entirety wasRamcharan Mitra. On his death the holding devolved as to half on his son BepinBehary and as to the other half on his son Karunamoy. The sequence of thesubsequent events and transactions is as follows:

2. On the 30th Agrahan 1291 (November 1884) Bepin Beharyhaving died, his widow Giribala, who succeeded him, sold his or her half shareto the father of defendant No. 1 and his co-sharers, defendants Nos. 4 and 5.As to this half there is now no dispute that it is in the possession of thosedefendants.

3. As to the other half share which plaintiffs seek torecover, on Karunamoys death unmarried it went to his mother Bimola(Ramcharans widow) and on her death was inherited by Asutosh Haldar, hergrandson by a daughter named Niroda. Asutosh Haldar was then a minor and forsome reason Niroda caused the share to be entered in Zemindars books in thename of Biraj Mohini, her widowed sister. It is common ground that Biraj Mohiniwas a mere benamidar.

4. On the 4th Falgun 1301 Niroda on behalf of her son soldthe share to Mihir, the brother of defendant No. 1 and the father of defendantsNos. 2 and 3.

5. In 1890 Niroda or her son through her brought a suitagainst Mihir to recover the share. The suit was successful and in execution ofthe decree, symbolical possession was given to Asutosh Haldar, as againstMihir, on the 14th October 1898.

6. Meanwhile in 1897 some of the landlords in respect oftheir fractional share brought a suit for rent against Biraj Mohini, andobtained a decree against her. It is not disputed that this decree was amoney-decree and not a decree in execution of which the holding itself could besold. Nagendra Nath Pal, therefore, the purchaser at the Court sale whichfollowed, purchased only the right, title and interest of the benamidar BirajMohini.

7. On the 20th Baisakh 1308 (April 190(sic)) Asutosh Haldar,then apparently of age, executed a release of his rights in favour of NagendraNath Pal. This document was registered but it is clear that the registrationwas void, and accordingly the document is not admissible in evidence.

8. On the 20th Sraban 1308 (5th August 1901) Nagendraobtained symbolical possession (against Biraj Mohun) of the share he hadpurchased at the execution sale.

9. On the 23rd Joista 1309 (July 1902), the plaintiffpurchased Nagendras rights and on the 9th August 1910 instituted the presentsuit under colour of the title so obtained. He was successful in the Courtsbelow and the principal appellant before us is the defendant No. 1. Thedefendants Nos. 2 and 2, the sons of Mihir, and the defendants Nos. 4 and 5appear in the record as respondents, but have taken no active part. The contestis between the defendant No. 1 and the plaintiff.

10. The case for the defendant No. 1 is, firstly, that theplaintiff-vendor purchased merely the right, title and interest of a benamidarand that the title which he conveyed to the plaintiff is, therefore, worthless.Secondly, while admitting that Mihirs purchase of Rs. 130 was made on hisbehalf as well as on behalf of Mihir himself, the defendant No. 1 asserts thatbefore the suit against Mihir was instituted, Mihir had sold his rights andleft the land and that he, the defendant No. 1, has since been in possession ofthe disputed share adversely to the title claimed by the plaintiff throughAsutosh Haldar and Nagendra. He, therefore, pleads that the suit is barred bylimitation.

11. On the question of title, the learned Pleader for theplaintiff relied on Rash Behary Sarkar v. Mahendra Nath Ghose 21 Ind. Cas. 979 [LQ/CalHC/1913/115] : 19 C.L.J. 34. The position that the beneficial owner may be bound by theresult of a suit against the benamidar whom he has set to represent him is notin question. It may be that Asutosh Haldar was bound by the result of the rentsuit, but as the decree made therein was a money decree he was not necessarilybound by the sale of his property in execution. In such a case the ruleapplicable appears to be that stated in Baburam Mandar v. Ram Sahai Sahao 8C.L.J. 305 : "No doubt, the sale has taken place in execution of a decreefor money. Prima facie, all that has passed in execution is the right, titleand interest of the judgment-debtor. But nevertheless if the beneficial ownersubsequently seeks to recover the property on the ground that his interest hasnot been affected by the execution sale, he may be met, and under certaincircumstances successfully met, by a defence on the part of the purchaser,based on the doctrine of estoppel." Baburam Mandar v. Ram Sahai Sahoo 8C.L.J. 305 . In the present case there is nothing to show that what was sold atthe execution sale was anything more than the benami title. Nor is AsutoshHaldar or his legal representative a party to the suit. The plaintiff cannotsay that his title is admitted in the suit by the beneficial owner. The Courtsbelow have not found, nor apparently were they asked to find, that theplaintiffs vendor was a bona fide purchaser for value without notice. Theremay, therefore, be a jus tertii outstanding and as in a suit for ejectment, theplaintiff must rely on the strength of his own title and not on the weakness ofhis adversarys title. There may be at the lowest a doubt whether theplaintiffs title is established. It is not, however, necessary actually todetermine this question because, in my opinion, the suit is barred bylimitation.

12. As the plaintiff alleges in his plaint a previouspossession of the disputed share and a subsequent dispossession, the burden ison him to prove possession by himself or his predecessor-in-interest withintwelve years of the date of the suit. For this purpose, the plaintiff relies onthe symbolical possession obtained by Asutosh Haldar on the 14th October 1898.But that possession was obtained as against Mihir. It is said that the decreeagainst Mihir bound the defendant No. 1. That may be, but symbolical possessionis of no avail except against the actual party to the suit or the proceedingsin execution [Mir Waziruddin v. Lala Deoki Nandan 6 C.L.J. 472]. In a suit forejectment all the parties in actual possession whom it is desired to ejectshould be ma(sic) defendants. Defendant No. 1 was not made a defendant andconstructive possession as against Mihir is of no avail against him.

13. In my opinion, therefore, the appeal succeeds on theground of limitation and the suit should be dismissed with costs throughout.

Beachcroft, J.

14. I agree that the suit is barred by limitation.

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Satish Chandra Sarkar and Ors. vs. Brojo Gopal Dutta and Ors. (18.01.1918 - CALHC)