JUDGMENT Sanderson, C.J. - This is an appeal from the judgment of the learned Subordinate Judge, Second Court at Alipur, and the appeal is against the decree which was in effect as follows: "The appeal is allowed and the plaintiff's suit is dismissed against defendant No. 1, who will get the costs of this appeal from the plaintiff: the decree of the first Court remains in force so far as the other defendants are concerned." 2. The suit was brought by the plaintiff for the establishment of his title to the land in dispute and for recovery of possession. He based his claim on an alleged purchase by him from one Harish who was admittedly the owner of the land. The defendant No. 1 was alleged to be the purchaser of the share of one of the sons of Harish who is dead, and he, the defendant No. 1, had dispossessed the plaintiff from the land. 3. In the trial Court the defendant No. 1 did not file any defence, but the other defendants, who are alleged to be his tenants, did put in a defence and defendant No. 1 appeared as a witness on their behalf, and gave evidence claiming his share in the land. 4. The trial Court gave a decree in favour of the plaintiff as against all the defendants except No. 9 who had no connection with the land. 5. Defendants Nos. 1 to 7 appealed to the lower appellate Court, but defendants Nos. 2 to 7 entered into a compromise with the plaintiff admitting the plaintiff's claim and then the appeal was prosecuted by the defendant No, 1 alone. 6. The main question before the lower appellate Court was whether the deed which purported to show the sale by Harish to the plaintiff was a benami deed or not. 7. The lower appellate Court found that the plaintiff's Kobala was a benami transaction and that the plaintiff was a benamdar for Harish, and that the deed did not pass any title to the plaintiff. Consequently, it came to the conclusion that the plaintiff had no title and he was not entitled to the possession of the land. 8. 7. The lower appellate Court found that the plaintiff's Kobala was a benami transaction and that the plaintiff was a benamdar for Harish, and that the deed did not pass any title to the plaintiff. Consequently, it came to the conclusion that the plaintiff had no title and he was not entitled to the possession of the land. 8. In this Court it was in the first place argued that the decree of the lower appellate Court ought to be set aside on the ground that the learned Subordinate Judge was not entitled to take into consideration the evidence which was upon the record, inasmuch as the first defendant who was the appellant did not put in a defence and did not produce any evidence except that which he gave on behalf of the other defendants. It is not disputed by the learned Vakil that defendant No. 1 had a right of appeal to the lower appellate Court. The decree had been made against him ex parte and there is no doubt he had a right of appeal and, on the hearing of such appeal in my judgment it was open to the learned Judge to take into consideration all the evidence which was upon the record. But really it is not necessary to decide that point, because in my judgment the learned Subordinate Judge based his conclusion upon the evidence which was given on behalf, of the plaintiff, and he came to the conclusion that on such evidence it was clear that the Kobala of the plaintiff was a benami transaction and that the plaintiff had not proved his title. The result is that in my judgment there is no substance in the first point. 9. It was then argued by the learned Vakil on behalf of the plaintiff that in any event the decree ought to be limited to the share which the defendant No. 1 had obtained by his purchase from one of Harish's sons, and that the decree as regards the other shares ought to be in the plaintiff's favour. 9. It was then argued by the learned Vakil on behalf of the plaintiff that in any event the decree ought to be limited to the share which the defendant No. 1 had obtained by his purchase from one of Harish's sons, and that the decree as regards the other shares ought to be in the plaintiff's favour. I am at a loss to understand this argument, because in order to decide the title of the first defendant it was necessary for the lower appellate Court to come to a conclusion whether the plaintiff's Kobala was or was not a benami deed and, having come to the conclusion that it was a benami deed and that no title passed to the plaintiff, the learned Subordinate Judge, in my judgment, was right in making the decree which he did. 10. The third point which was argued on behalf of the plaintiff by the learned Vakil was that the fact that the plaintiff was a benamdar did not disentitle him to sue : and, he relied upon the case of Choudhury Gour Narayan v. Sheolal Singh (1918) 46 Cal. 586 = 23 C.W.N. 521 = 17 A.L.J. 66 = 36 M.L.J. 68 = 9 L.W. 335 = 49 I.C. 1 (P.C.). In my judgment that decision has no bearing upon the present case, in which the benamdar, the plaintiff, was in effect suing the beneficial owner and consequently he had no right to bring a suit claiming title and for possession of the land. 11. For these reasons in my judgment this appeal should be dismissed with costs. 12. As regards the cross objection the learned Vakil for defendant No. 1 has brought before the Court no materials which would entitle us to allow the cross objection. One short answer to the cross-objection is that the defendants other than the first defendant have not been served with the notice of the appeal or notice of the cross objection. In those circumstances it is impossible for this Court to interfere with the decree of the lower appellate Court. The cross objection is, therefore, dismissed with costs. B.B. Ghose. J. 13. I agree.