SIRIKISHUN SINGH Vs. JAIMANGAL SINGH

JUDGEMENT

(1.) This is a second appeal by the defendants arising out of a suit in which the plaintiffs had prayed for a declaration of their title to and recovery of possession of certain plots rf land described as plots NOS. 15 and 17. The case, as made out by the plaintiffs, was that this property had been purchased by their ancestor Ghina Mahto in the frazi name of Lakhu Mahto, the father of the defendant appellants, by a registered sale-deed dated 23rd October 1899 and that ever aince the execution of the Kebala it has been in their possession. The alleged cause of action for this suit was an interference by these defendant-appellants with the possession of the plaintiffs leading to a proceeding under Section 144, Criminal P. C. The defence was that Lakhu Mahto was the real purchaser of the property, and it was further alleged that a few years before the institution of this suit the original sale-deed by which this property had been acquired was lost or stolen from the dalan of the defendants and that the plaintiffs having obtained the custody of the document had filed this suit dishonestly.

(2.) The Courts below have concurrently held that the plaintiffs have been able to prove that the sale-deed was in their custody, that they have been in possession of the property in suit, and that they have been paying its rent. On these findings they have decreed the suit.

(3.) The learned counsel appearing for the defendants appellants contended that, as held by this Court in Mt. Janki Bai v. Najaf All Khan, 3 Pat. L. W. 339: (A.I.R. (5) 1918 Pat 632), a question of benami was not a pure question of fact and that it was a mixed question of fact and law, and he asked me to follow this decision in spite of the decision in Benarsi Das v. Mt. Bhawani Kuer, 23 P. L. T. 364 :(A. I.R. (29) 1942 Pat. 386) by Harries C. J. and Manohar Lall J. in which their Lordships had observed that the question of benami was eminently a question of fact and the finding on this question could not be interfered with in second appeal. The learned counsel submitted that if tbis decision of Harries C. J. and Manohar Lall J. is in conflict with the earlier decision reported in Mt. Janki Bai v. Najaf Ali Khan, 3 Pat. L. W. 339 : (A. I. R. (5) 1918 Pat. 632), then on the principle laid down by Fazl Ali and Manohar Lall JJ. in Mahabir Das v. Udit Narain, 19 P. L. T. 570 : (A. T. R. (25) 1938 Pat. 613) the earlier decision should be followed by me. Speaking for myself, I do not consider that the two decisions are irreconcilable. In every case in which the question of benami is raised the circumstances which are usually taken into consideration are among others the possession of the property, the source of the consideration money, the custody of the title deed, the relationship between the parties and the motive for the transaction. In second appeal it is certainly open to us to see how far the Courts have considered whether the ingredients which are required to be established in a case of benami have been established. But if on the findings of the Courts of fact the necessary elements are found to have been established for supporting the conclusion that the transaction was a benami one then this Court in second appeal would not interfere with the decision of the lower appellate Court. No doubt in this cage there is no finding of the Courts below to the effect that there was a sufficient motive for taking a sale.deed in the benami name of Lakhu Mahto and that the consideration money was paid by the plaintiffs' ancestor, but there are very definite findings to the effect that the custody of the document has been with the plaintiffs that the plaintiffs have been in possession of the land in dispute ever since the execution of the sale-deed and that they have been paying its rent. The defendants had put forward a story that the title deed was stolen or removed from their dalan some years back but the Courts below discredited this story and they have given very good reasons for rejecting the defendants' version that the title deed was taken away from their house. If the defendants filed a petition before the S. D. O. in 1944 regarding the loss of the document is 1942 that raises a very strong suspicion that it was not a bona fide petition and tbat there was an uiterior motive behind it. It is true that merely because the plaintiffs have produced this document it cannot be held that they have been able to prove their title to thia property. But there can be no doubt that the question of the custody of the title deed is a very important question and the finding on this point has to be considered along with the definite finding on the question of possession. The plaintiffs, it appears, produced a number of rent receipts, showing payment of rent for a good number of years and the learned Additional District Judge has rightly pointed out that :