P L D 1961 Dacca 839 (PLP)

HASAN, J.‑The properties in dispute were purchased by five person, namely, Azimuddin, Abdul Hakim, Hariranjan Biswas, Haji Abdul Hakim cad Haji Nasarat Ali, in a certificate proceeding on the 31st of March 1936. The plaintiffs claim an allotment with respect to 4 annas share in the disputed properties, they being heir and legal representatives of one of the auction‑purchasers, namely, Haji Nasarat Ali.

2. Defendants Nos. 1‑3 and defendant No. 5 entered appearance and contested the suit. The case of defendants Nos. 1‑3 is that Haji Nasarat Ali auction‑purchased only 2 anaas share in the properties sold in the certificate sale; that Hariranjan Biswas (defendant No. 6) was their benamidar and he was not benamidar of Rajani (defendant No. 5); and that they obtained a decree in Title Suit No. 73‑A of 1944 against defendant No. 6, heirs of Haji Abdul Hakim, Azimuddin and Abdul Hakim and two other persons, namely, Azizur Rahman and Nur Muhammad. The contention of defendant No. 5 is that Hariranjan was his benamidar and not the benamidar of defendants Nos. 1‑3.

3. The Courts below accepted the plaintiffs' case that Haji Nasarat Ali purchased 4 annas in the disputed properties and that Hariranjan (defendant No. 6) was not the benamidar of defendants Nos. 1‑3 but was the benamidar of defendant No.

5. Hence the present appeal at the instance of defendants Nos. 1‑3.

4. In presence of the aforesaid facts, four grounds have been pressed by the learned Advocate for the appellants in support of this appeal. The first ground is that the sale certificate being a deed of title showing 2 annas share in the came of Haji Nasarat Ali, no decree can be passed in favour of the plaintiffs to the extent of 4 annas in the suit properties without amendment of the title deed. There is no dispute that a sale certificate is an evidence of title but that does not mean that the person in whose name the sale certificate stands, may not, necessarily be the real purchaser. Some third person may claim that some of the persons in whose names the sale certificate stands are benamidars, which had been done in the suit of defendants Nos. 1‑

3. So, the contention of the learned Advocate for the appellants that without amendment of the sale certificate one cannot challenge the shares or cannot claim that the persons in whose names the sale certificate stands are benamdars is not sound.

5. In order to prove that Haji Nasarat Ali purchased 4 annas in the suit properties in the aforesaid sale certificate the plaintiffs have led evidence to show that Haji Nasarat Ali really purchased 4 annas and not 2 annas and that the entry in the sale certificate showing that he had acquired 2 annas is erroneous. In the present case, both the Courts below after going through the evidence on record have come to the finding that the entry in the sale certificate showing 2 arenas share in the name of Haji Nasarat Ali is palpably wrong. In support of this finding reliance has been placed on Exh. 1, a Khas Mahal Khatian which short's that Haji Nasarat Ali had been in possession of 4 annas share of the jote. The Courts below have also relied on Exh. 3‑A and Exh. 4 series Exh. 3‑A is a receipt which shows that Haji Nasarat Ali paid the balance of the auction purchase money on the 15th of April 1936, and that the sum that was paid by him was Rs.

350. After calculation by the Courts below it has been found that the sum that was paid by Haji Nasarat Ali come to ?th of the purchase money. This find?ing is based on evidence and cogent reasons and is a finding of fact. Exhibit 4 series shows that Haji Nasarat Ali had paid all through the rent to Khas Mahal officer in respect of his 4 annas share of the jote. After going through the judgments of the Courts below we find that the said finding is based on evidence and cogent reasons. Hence we find no substance in this contention.

6. The second ground urged on behalf of the appellants is that the claim of defendant No. 5, so far as the purchase in the name of Hariranjan is concerned, is barred by constructive res judicata. In support of this contention reliance has been placed on the judgment and decree passed in Title Suit No. 73‑A of

194. It appears that Haji Nasarat Ali was not a party to that suit but Hariranjan (defendant No. 6) was defendant No. 9 to the said suit: and that Rajani (defendant No. 5) of the present suit was not also a party in that suit. The plaint, the written statement and the issues framed in that suit have not been filed in the present suit which if filed, could have been of much use in order to deter?mine the question of res judicata. As defendant No. 5 was not made a party in the suit instituted by defendants Nos. 1‑3 claiming Hariranjan as their benamdar and as defendant No. 5 does not claim under Hariranjan but claims on the basis of his independent title of purchase to the benami of Hariranjan, section 11 of the Code of Civil Procedure has no application in the present case. Hence the decision given in the suit instituted by defendants Nos, 1‑3 cannot be a bar to the agitation of the question of benami nature by defendant No. 5 in the present case, either expressly or implied?ly. In order to get rid of this difficulty, Mr. B. N. Chowdhury has relied on the following observations of the Privy Council in the case of Gour Narayan and others v. Sheo Lal Singh and others (46 I A 1). "So long, therefore, as a benami transaction does not contravene the provisions of the law the Courts are bound to give in effect. As already observed, the benamdar has no beneficial interest in the property or business that stands in his name. He 'repre?sents, in fact, the, real owner, and so far as their relative legal position is concerned he is a mere trustee for him. Their Lord?ships find it difficult to understand why, in such circumstances, an action cannot be maintained in the name of benamdar 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 benamdar, the person beneficially entitled is fully affected by the rules of res judicata."

7. It seems to us that the aforesaid case is an authority for the proposition that the beneficial owner is bound by the decree that is passed in a suit instituted by or against the benamdar and nothing more. It is contended by Mr. Chowdhury that as defend?ant No. 5 is benamdar of Hariranjan, he is bound by the decision that has been given in that suit instituted by defendants Nos. 1‑3 against defendant No.

6. It appears that defendants Nos. 1‑3 instituted their suit in the capacity of sonamdar against their alleged benamdar for a declaration that defendant No. 6 was the benam?dor of the plaintiffs of that suit, namely, defendants Nos. 1‑3 of the present suit. In our opinion, the observation of the Judicial Committee quoted above is to the effect that when a suit is insti?tuted by a benamdar claiming certain relief or when a benamdar other than the sonamdar, in that case the decision thereof will be binding against the sonamdar. But the aforesaid observation does not lay down a principle to the effect that when a sonamdar insti?tutes a suit against the benamdar, it will be binding against any other person claiming to be the sonamdar as against the benamdar. If we accept the contention of the learned Advocate for the appel?lants that a suit by a parson claiming to be the real owner against a benamdar will also act as a bar to a suit by another person claim?ing to be the sonamdar, in that case it may lead to absurdity. Mr. Chowdhury admits that if a suit is instituted by a person claiming to be the sonamdar against the ostensible owner claiming that the latter was his benamdar and the same is dismissed then that will not be binding on another person claiming to be the real owner. But it is contended by him that if such a suit is decreed, in that case it will act as a bar to another suit to be instituted by a third person claiming to be the real owner.

8. Considering all these aspects of the matter, we are of opinion that when a suit is instituted by a person claiming to be the Sonamdar on the assertion that the ostensible owner is benam?dar of the plaintiff and the suit is decreed or dismissed, it will not operate as a bar to the litigation of the same question of benami at the instance of a third person claiming that the ostensible owner is his benamdar. We are also of the opinion that the aforesaid decision of the Judicial Committee relied on by the learned Advocate for the appellants, is not an authority for the question of law involved in the present case.

9. The third ground urged on behalf of the appellants is that defendant No. 5, Rajani, is not entitled to a declaration that defen?dant No. 6 (Hariranjan) is the benamdar and also to pray for setting aside the decree passed in Title Suit No. 73‑A of 1944. In our opinion, this contention has no force in it in view of our finding that the decision given in Title Suit No. 73‑A of 1944 is not binding on Rajani (defendant No. 5).

10. The last ground urged by the learned Advocate for the appellants is that the judgment of the lower Appellate Court is not in accordance with law inasmuch as the said Court has not considered the oral evidence adduced by the parties. We find from the judgment of the trial Court that the said Court elabo?rately dealt with the evidence both oral and documentary and after giving cogent reasons held that defendant No. 5 (Rajani) was the real owner and Hariranjan (defendant No. 6) was his benamdar and that Hariranjan was not the benamdar of defendants Nos. 1‑

3. The judgment of the lower Appellate Court is an affirmatory judgment and after going through the same we find that the said Court, in effect accepted the findings arrived at by the trial Court on the evidence adduced by the parties. The lower Appellate Court has also discussed the documentary evidence fully. No evidence worth considering has been pointed out to us from which it can be held that the judgment that has been delivered by the lower Appellate Court cannot be maintained. Hence, we do not find any substance in this appeal. In the result, the appeal is dismissed with costs. M. R. KHAN, J.‑I agree. A. H. Appeal dismissed.