Posted On by &filed under Calcutta High Court, High Court.

Calcutta High Court
Aunopurna Alias Shonoka, Widow Of … vs Sasti Churn Nundi on 22 April, 1896
Equivalent citations: (1896) ILR 23 Cal 699
Author: Macpherson
Bench: Macpherson, Hill


Macpherson, J.

1. This appeal relates only to taluk Indra Narain Chowdhry in respect of which the plaintiff has obtained a decree. The defendant, who is the appellant before us, does not contest the correctness of the decision as regards taraf Abdur Kader. The plaintiff’s case is that this taluk was sold at an execution sale in April 1882, and purchased by the plaintiff with his own money through the defendant, who fraudulently got his name registered as the auction-purchaser. He asserts that he has been in continuous and undisturbed possession since his purchase; and that a misunderstanding having now arisen between himself and the defendant his nephew, the latter has now commenced interfering with the tenants. The plaintiff, therefore, asks in this suit that his right may be declared and possession confirmed, and that the defendant may be restrained from interfering with the tenants. It has been found that the plaintiff has been in continuous possession of the taluk since his purchase, and that he was, in point of fact, the real purchaser, the defendant’s name being only ostensibly used. The alleged fraud was found not to be established. The defendant’s contention in the Lower Appellate Court and again in this Court, apart from the merits of the transaction, was that under Section 317 of the Civil Procedure Code this suit could not be maintained. That section provides that “no suit shall be maintained against the certified purchaser on the ground that the purchase was made on behalf of any other person or on behalf of some one through whom such other person claims.”

2. In our opinion the present case does not come within the scope of Section 317. The plaintiff alleges that he is in possession, and he is found to be in possession of the taluk since the time of the sale. That possession is in itself a good title against all but the true owner. The defendant meets it by setting up the sale certificate which stands in his name. No doubt, if the effect of that sale certificate was to confer upon him a valid title as against the plaintiff, the plaintiff’s suit must fail. But it has not that effect. Section 317 does not, as pointed out in Mussumab Buhuns Kowur v. Lalla Buhuree Lall (14 Moo. I.A. 496, at p. 526), make all benami translations invalid; nor, read with Section 316, does it confer upon the ostensible purchaser ‘a title as against the real purchaser. It merely declares that a suit shall not be maintained against the certified purchaser on the ground that he was only the ostensible purchaser. The ostensible purchaser could not insist on his certified title to recover from the real owner in possession. If, therefore, the defendant sets up the sale certificate as an answer to the plaintiff’s case, there is nothing to prevent the Court from going into the question whether that sale certificate did or did not confer a valid title upon the defendant as against the plaintiff. It is not a case in which the plaintiff, relying on a sale certificate, seeks to obtain a decree for possession against the ostensible purchaser. Besting, as it does, on an existing possession, we do not think that it is a suit of the nature prohibited by Section 317. The appeal is therefore dismissed with costs.

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