JUDGMENT
Odgers, J.
1. In this appeal the questions of law are short though the facts are complicated. The suit was to declare that a decree in O.S. No. 1154 of 1925 brought by the 2nd defendant against three persons, viz., 1st defendant, K. Rangayya and S. Kannayya was obtained by fraud and does not bind the plaintiff in the present suit. He also asks for possession. The defences set up are Section 47, Civil Procedure Code, limitation and lis pendens. Both the Courts have now held that defendants 2 and 3 are the benamidars of S. Kannayya, the father of the 1st defendant and the original owner of the house in question. This question which was the subject of issues 1 and 2 was strenuously fought in both the Lower Courts, and being a question of fact cannot be raised in second appeal. But the learned vakil for the appellant (3rd defendant) now wants to take advantage of that finding and say that a benamidar is either a party or the representative of a party under Section 47, Civil Procedure Code. He has referred to Gur Narayan v. Sheolal Singh (1918) I.L.R. 46 C 566 : 36 M L J 68 (PC) for the explanation of the position of a benamidar by the Privy Council. But their Lordships nowhere say that he is either such a party or representative under the section and no authority for that proposition has been produced before me. It perhaps should be mentioned in this connection that it was contended that the plaintiff who obtained a decree in S.C.S. No. 18417 of 1915 in the Madras Small Cause Court against the original owner of the house should be confined to execution proceedings on that decree and was prevented by the section from bringing, another suit. The point fails.
2. The second question is one of limitation, namely, the time that has elapsed since O.S. No. 163 of 1917 which the plaintiff brought for a declaration of his title when he was obstructed by certain persons, two of whom seem to have been defendants 2 and 3. The suit was held not to be maintainable because it contained no prayer for possession. The question is whether the time taken in prosecuting this suit by the plaintiff can be deducted in his favour under Section 14 of the Limitation Act. The District Munsif held that it could. This was also the opinion of the Subordinate Judge who, however, thought that Article 138 of the Limitation Act which allows 12 years was preferable. If this applies there is no question of limitation, but it is contended that Section 14 cannot be applied because O.S. No. 163 of 1917 was entirely misconceived. The proviso to Section 42 of the Specific Relief Act states that no Court shall make any such declaration where the plaintiff being able to seek further relief than a mere declaration of title omits to do so. The learned District Munsif was of the opinion that this was a defect of a nature similar to the defect of jurisdiction. It seems that by the proviso to Section 42 of the Specific Relief Act, the Court is deprived of the discretion of granting a declaratory decree in such cases. It therefore seems to me to be rightly said to be of the nature of a defect in jurisdiction. It has been held that the interpretation of Section 14 should be a wide one and there is no doubt on the findings in the present case that the plaintiff was bona fide litigating for his rights in O.S. No. 163 of 1917 transposed as O.S. No. 24 of 1920. [See Kunhikutti Ali v. Kunhammad (1922) 44 M L J 179]. It must be observed that the appellant here claimed an independent title and that the 2nd defendant having put in a claim petition which was disallowed, Ex. C, on nth July, 1916, and having brought no suit under Order 21, Rule 63, cannot now be heard to say that the sale to the 1st plaintiff is not binding upon him (2nd defendant) and his vendee, the 3rd defendant. [See also Surnamoyi Dasi v. Ashutosh Goswami (1900) I.L.R. 27 C 714]. It must be observed that the 2nd defendant claimed title to the property independently by virtue of transactions that took place long before the attachment made by the plaintiff in execution of the decree. I fail to see with the Subordinate Judge how the question of lis pendens comes in. Second defendant had no title to the property. Consequently the question whether the plaintiff’s purchase was affected does not arise. It seems to me that on all these grounds the judgment of the Subordinate Judge was right and the second appeal must be dismissed with costs of Ist plaintiff.
