Decided on March 01,1962



- (1.) Three points are urged on behalf of the appellant against whom the courts below have concurred in passing a decree for possession. The appellant is the 2nd defendant in the suit. His mother, under whom he claims, was the 1st defendant. She died pending suit, and the appellant who is her legal representative is now the sole defendant). They are: (1) that the purchase of the suit property by the plaintiff under Ext. D15 dated 8-2-1121 was benami for the 1st defendant; (2) that the decree for possession obtained by the defendants against the plaintiff in a prior suit, O. S. 651/1123, is res judicata in their favour; and, (3) that by reason of S.90 of the Trusts Act, the plaintiff's purchase, under Ext. D15, even if for himself, must enure for the benefit of the 1st defendant.
(2.) The property in suit, a piece of garden land 3.17 acres in extent held under a possessory mortgage, was part of a holding of about 14 acres which the plaintiff admittedly took on lease from the 1st defendant in 1112 M. E. (1936-37). It was sold in execution of a decree obtained against the 1st defendant (among others) by some third parties; and, from the purchasers in the court auction, the present plaintiff bought it on 8-2-1121 M.E. (24-9-1945) under Ext. D15. In O. S. 651 of 1123 the present defendants sued the present plaintiff for possession of the suit property and other property on the foot of the lease of 1112 M. E. (1936-37) and this suit was tried along with an earlier suit, O. S. 1129 of 1122, a similar suit brought against the present plaintiff by a person to whom the 1st defendant had transferred her rights in the remaining portion of the holding. In defending that suit, the present plaintiff set up his purchase under Ext. D15 and contended that the present defendants were not entitled to recover the property since it no longer belonged to them. On this contention the following issues were joined as issues 4 and 8. Issue 4: Are the plaintiffs (the present defendants) entitled to recover the whole of the property from the defendant as sought for in the plaint Issue 8: Are the 3 acres and 37 cents mentioned in para 25 of the written statement (i. e. the property now in suit and another 20 cents of land in respect of which the present plaintiff had some similar defence) not liable to be recovered by the plaintiffs. The judgment was written in the connected suit and these two issues were considered in Para.6 thereof under issue No. 4 of that suit. The learned Munsiff who tried the suit declined to go into the defence set up by the present plaintiff, namely, that he had become the owner of the property now in suit by reason of his purchase under Ext. D15 (Ext. XIV in that suit) and decreed possession of the entire property to the present defendants, the plaintiffs therein. At the same time he said, "On the above grounds I think it is proper to direct the defendant (the plaintiff in the present suit) to file a fresh suit for recovery of the property covered by Ext. XIV (Ext. D15 here) from the possession of the plaintiffs after surrendering the same to them under the decree in this suit." The present plaintiff appealed. His appeal was dismissed. Thereupon he filed a second appeal in which he pressed for a decision on the question of his title to the 3 acres 17 cents of land now in suit and contended that the plaintiffs there (the present defendants) should not have been given a decree in respect of that land. This court dismissed the appeal and in doing so said:- "Admittedly this plot too (i. e. the property now in suit) was included in the plaint lease. The appellant's contention is that the plaintiffs have lost title to this plot by subsequent proceedings ending with Ext. XIV delivery. The plaintiffs' case in regard to Ext. XIV is that the delivery was taken by the defendant who was their lessee for their benefit. On account of the admitted fact that the plot was included in the plaint lease and the dispute referred to above, the courts below have directed that the defendant should surrender possession of the plot to the plaintiffs in this suit and that he should establish his title to it and obtain proper remedy in a fresh suit. The 2nd plaintiff too, who was present in court today has given a sworn statement before me to the effect that in pursuance of the lower court's direction the defendant has filed a fresh suit in the Neyyattinkara Munsiff's Court as O. S. No. 227 of 1955 for establishing his title in respect of this plot and getting the necessary reliefs and that four witnesses have already been examined in that suit. In view of these facts and circumstances there is now no necessity to go into the dispute relating to the above plot and that dispute can be safely left to be decided in the new suit." It is this new suit that we are now considering.
(3.) On the question of benami, there is the concurrent finding of fact of the courts below that the plaintiff's purchase under Ext. D15 was for himself and was not benami for the 1st defendant. It is however argued that this finding is vitiated by an error of law in that both the courts have ignored the effect of the documentary evidence in the case, namely, of Exts. D.1 to D7, D9, D10, D14, D16 and D17. With the exception of Ext. D14, these documents are letters written by the plaintiff to the 1st defendant on various occasions, almost all of them in his capacity as her tenant and referring among other things to the rents due. I have been taken through them and all that they show is that the 1st defendant reposed trust in the plaintiff and used to take his advice regarding the management of her affairs. That the letters do not show that, after his purchase under Ext. D15, the plaintiff asked for an abatement of rent is at best only a circumstance that might tend to the inference that the lease still subsisted in respect of the entire holding, in otherwords, that despite the plaintiff's purchase under Ext. D15 the 1st defendant continued to be the owner of the suit property. It is true that the courts below have not taken note of this circumstance but I do not think that the failure to do so can vitiate their concurrent finding. Nor is the inference a strong inference, for, it does not appear that the plaintiff was cross examined on the pointer given an opportunity to explain why he asked for no abatement.;

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