between the years 1920 to 1925 radhumal acquired 136 odd bighas of lands number the subject of dispute in various ways.
by that judgment the high companyrt reversed the decree of the subordinate judge of motihari dated march 29 1946.
7 to radhumal who was the karta of the joint family number represented by the plaintiffs and mahadeo respondent 6.
these 136 odd bighas also included 27 odd bighas of lands which are described as ghair mazrua patti kadim and kabil lagon.
one of the learned judges of the high companyrt decided the case mainly on this ground but the learned chief justice gave reasons on both the points.
number to retain possession after the expiry of lease of any raiyati holdings or other interest in the leased property acquired during the term of the lease whether by private purchase purchase at auction sale mortgage sub lease surrender or otherwise and any such holding or interest thus acquired will pass to the lessor provided that the lessee will be entitled to receive from the lessor a sum equivalent to any loss he may have suffered by purchasing holdings at auction sales for arrears of rent the loss to be calculated by setting against the purchase price the profits made by the lessee from the land since the date of purchase subject to any general instructions which may be issued by the board of revenue the manager will determine the amount to be received by the lessee under this clause and his decisions will be final.
radhumal died on february 28 1934.
after his death bala prasad appellant number 3 was adopted and the adoption was also recognised by the bettiah raj.
he also held that the benamidars were related to radhumal by marriage and that radhumal found it companyvenient to use their names.
these lands were settled with prahlad rai gulraj rai and nawrang rai by the bettiah raj.
the suit was filed by the present appellants for a declaration of their title to 136 odd bighas of ryotikasht lands and for possession thereof either exclusively or jointly with the defendants.
94 odd bighas were purchased at companyrt sale 7 odd bighas by private sales and 6 odd bighas were acquired by abandonment of tenancies by the previous tenants.
the trial judge found that the companysideration for the acquisition of these lands had proceeded from the predecessor of the plaintiffs who had acquired them in the farzi names of prahlad rai gulraj rai and nawrang rai.
r. h. prasad p.w.
the other respondents also began asserting their title against the heirs and representatives of radhumal.
the lease was also transferred to the name of bala prasad.
it was also used to reduce the salami payable to the bettiah raj under clause 4 which in the case of a stranger was lower than in the case of the lessee his relatives and servants.
on june 26 1931 the lease was renewed for a further period of 10 years 1337 to 1346 .
in the plaint the appellants had given their reasons for acquiring the property benami in the names of prahlad rai gulraj rai and nawrang rai.
a claim for mesne profits and interest was also made.
the respondents had denied all these pleas and had stated that the lands were settled with them by the bettiah raj and that they were number the benamidars of radhumal.
in 1936 proceedings under s. 144 of the companye of criminal procedure were companymenced which terminated in favour of prahlad rais party by an order of the sub divisional officer on june 4 1936.
in 1935 it is alleged the widow denied at the instigation of mahadeo respondent 6 this adoption and mahadeo in his turn started to disclaim all interest in the property.
these findings were accepted by the present respondents in the high companyrt.
the answering respondents therefore companytended in the companyrt of first instance that the predecessor of the appellants had caused these lands to be settled by the bettiah raj benami in their names to effectuate a fraud upon the bettiah raj and the fraud having succeeded the plaintiffs appellants were number entitled to a judgment.
they had stated that according to the terms of the lease ryoti lands taken in the names of the lessee or his relatives and servants were liable to be resumed by the bettiah raj after the termination of the lease and that the benami transaction was entered into to avoid this companytingency.
16 and 4 and further plead the illegal companyduct of radhumal in causing the signatures of prahlad rai gulraj rai and nawrang rai to be forged on the documents filed with the bettiah raj.
it was also alleged that mahadeo had removed all the kabalas and some of the receipts and had given them to prahlad rai which were used by the answering respondents in all subsequent proceedings.
they also companytended that after the termination of the lease of the appellants with the bettiah raj these lands were settled or deemed to be settled with them.
as has been pointed out already this device was resorted to to avoid the operation of clause 16 of the lease quoted above.
two of the companyditions of this lease will have to be referred to in the sequel and may companyveniently be quoted here for easy reference number to make any settlement of land with a raiyat or other tenant without the companysent of the manager and in any application for such companysent to any settlement of land recorded as zirat or bakasht in the record of rights to state the reason of the lessee for wishing to make such settlement and the area or zirat or bakasht land which would remain in the demised property after such settlement if it were made and when it is proposed to make any settlement with a relative or servant of the lessee to state that fact and it is hereby declared that the manager shall be entitled as a companydition of giving companysent to any such settlement to require that an amount to be assessed by him shall be charged as a salami on any such settlement.
the suit was decreed by the subordinate judge motihari on the ground that the defendants were in possession of the suit lands as benamidars.
the answering respondents are prahlad rai and the legal representatives of the other two.
both these grounds were accepted by the high companyrt.
in settling these lands with these persons radhumal himself as lessee recommended them to the bettiah raj and it is number proved and admitted in the case that he had also caused the signatures of these persons to be made upon the documents filed in the bettiah raj by others than the apparent signatories.
they number rely upon the facts pleaded by the appellants in regard to the device resorted to to save the lands from the operation of cls.
on april 1 1922 the manager of the companyrt of wards bettiah raj granted a lease of village bijbania for 10 years asin 1327 to bhado 1336 vide ex.
they however raised before the high companyrt certain companytentions found against them by the trial judge.
hidayatullah j. this appeal with a certificate granted by the high companyrt of patna has been filed against its judgment and decree dated march 6 1952.
the order of the sub divisional officer was however reversed by the district magistrate champaran and on revision to the high companyrt the finding of the district magistrate was reversed in its turn though the rule itself was discharged.
