DWARIKA PRASAD SAHU Vs. MUNILAL SAHU AND ORS.

JUDGEMENT

(1.) THIS appeal is by the Plaintiff from the reversing decision of the lower appellate Court and arises out of a suit for declaration that the suit house described in the Schedule 'A' of the plaint belongs to the Plaintiff in which the Defendants 3, 4 and 5 have no manner of right, title and interest and that Defendants 1 and 2 cannot attach and sell the same in execution of any decree obtained by them against Defendants 3, 4 and 5 and for eviction of Defendants 3 and 4 therefrom and for recovery of possession of the portion of the house in occupation of Defendants 3 and 4.

(2.) THE Plaintiff's case is that the disputed property belonged to one Munilal and Defendants 3 to 5 were tenants under him in respect of the suit house. Plaintiff purchased the house from Munilal for a consideration of Rs. 5000/ - by a registered sale deed dated 1 -8 -1956 (Ex. 4). Defendants 3 to 5 continued as tenants under the Plaintiff thereafter. Defendants 3 and 4 refused to pay rent when demanded by the Plaintiff. Defendants 1 and 2 obtained a money decree against Defendants 3 and 5 and levied execution of the same and put the disputed house under attachment. The Plaintiff filed a claim case under Order 21 Rule 58, Code of Civil Procedure which is Misc. Case No. 52/60. Before disposal of this claim case the Plaintiff has filed the suit for the aforesaid reliefs.

(3.) THE principal question which arose for determination in the suit was whether Munilal. (p.w. 3) was a benamidar for Defendants 3 to 5. In order to determine the question whether the transaction of lease was, benami or not the trial Court considered and examined the following five judicially recognised tests with reference to the evidence adduced by the parties. The tests examined were: