1. T. H. KHAN, J.--This appeal at the instance of the defendant No, 19 is directed against the judgment and decree of the Subordinate Judge, Chittagong, dated the 17th June 1961. The plaintiff filed the Title Suit No, 53 of 1959 for a declaration of his title to and recovery of khas possession of the land in suit after evicting the defendants therefrom. Alternatively, the plaintiff prayed for refund of the consideration money of the kobala together with the compensation from the defendant No, 19.
2. The plaintiff's case, in short, was that the land described in the schedule to the plaint, measuring 1.28 acres was 'purchased in auction by the defendant No, 19 in Rent Execution Case No, 392 of 1952 and he took delivery of possession of the same. Thereafter the plaintiff purchased the land in suit from the defendant No, 19 on the basis of a registered kobala dated 9th November 1959 for a consideration of Rs, 2,000. After his purchase the plaintiff settled the land with one Sheikh Ahmed in borga who grew aus paddy in 1365 B.S. but the defendants Nos, 1 to 14 at the instance of the defendants Nos, 15 and 16 forcibly reaped the unripe aus paddy and thereby dispossessed the plaintiff from the land in suit. The plaintiff alleged that the reason for the dispossession was that the defendants Nos, 1 to 5 wanted to take the borga settlement of the land in suit from the plaintiff but as he did not agree they dispossessed him. Previously there was a proceedings under section 144 of the Criminal Procedure Code against the defendants Nos, 1 to 14 as they threatened to dispossess the plaintiff from the land in suit. In violation of the order of injunction issued by the criminal Court the defendants reaped away the paddy and thereupon a case was started against them under section 188 of the Pakistan Penal Code and during the trial of that case it was disclosed that the defendants Nos, 1 to 14 took possession of the land in suit from the defendants Nos, 15 and 16 and it was at their instance that the defendants 1-14 dispossessed the plaintiff.
3. Accordingly, the defendants Nos, 15 and 16 were impleaded in the suit.
4. The plaintiff also claimed compensation in the sum of Rs, 250 being the price of paddy and straw that were grown by the plaintiff's borgadar and taken away by the defendants. The plaintiff alternatively prayed for the refund of the consideration money with compensation from the defendant No, 19 as the defendants Nos, 15 and 16 gave out that the defendant No, 19 had no right, title, interest and possession in the land in suit and that they had purchased the same in auction in the name of the defendant No, 19 and which was a benami transaction. So, if it was found that the defendant No, 19 was a benanidar of the defendants Nos, 15 and 16, in that case, the suit might be decreed for the consideration money with compensation and expenditure incurred for the purpose of registration against the defendant No, 19.
5. The case was contested by the three sets of defendants. The defendants Nos, 1 to 14 contested the suit by filing a joint written statement contending inter alia that the allegations of paddy cutting made against them were wholly untrue. Their case was that they had no connection with the land in suit nor were they in collusion with any other defendants. They were made party to the suit as they refused to depose in favour of the plaintiff before the civil and the criminal Courts as well as before the Revenue authorities.
6. The defendants Nos, 15 and 16 contested the suit by filing another joint written statement contending inter .alia that the land in suit was purchased in auction by them and their brother late Siddiqur Rahman in the benami of the defendant No, 19 who happened to be the son-in-law of the said Siddiqur Rahman. The defendants 17 and 18 are the heirs of late Siddiqur Rahman. After the death of the daughter of Siddiqur Rahman the defendant No, 19 became a cause of trouble to the otherwise peaceful family life of the other daughter of Siddiqur Rahman who was married to one Monir Ahmed, a son of the defendant No,
15. Centering round that trouble there were both civil and criminal litigations and the enmity between the defendants Nos, 15 and 16 on one hand and the defendant No, 19 on the other had aggravated. After the death of Siddiqur Rahman the defendant No, 19 exercised undue influence upon his mother-in-law and sister-in-law the wife of Monir Ahmed and thereby took possession of some documents including the Certificate of Sale relating to the joint family property of the defendants Nos, 15 to 18. Taking the advantage of these documents, the defendant No, 19 created and executed a collusive kobala in favour of the plaintiff. The defendant No, 19 never had any title to or possession in the land in suit and consequently the plaintiff did not acquire any right, title or interest in the land in suit which was never in possession of either the defendant No, 19 or of any other person as his borgadar and that the story of possession and dispossession as introduced in the plaint was entirely false. Their further case was that during the last settlement operation for the revision of the records-of-right there was a contest over the recording of the name of the defendant No, 19 which he lost and consequently the record-of-right in respect of the land in suit has been prepared in the names of the defendants Nos, 15 to 18.
7. The defendant No, 19 also contested the suit by filing a written statment contending inter alia that he had his title to the land in the suit ; that the auction-purchase was made with his own money and in his own interest and that he was not a benamdar of the defendants Nos, 15 and 16 and his late father-in-law Siddiqur Rahman. His further case was that after the auction-purchase he took possession of the land in suit and the plaintiff after due inquiry and knowing it fully well that it belonged to the defendant No, 19 purchased the same. The defendant No, 19 delivered possession of the land in suit to the plaintiff and as such the question of refunding the consideration money along with compensation did not at all arise. In other respects he supported the plaintiff's case.
8. On the pleadings of the parties ten issues were framed by the learned Subordinate Judge, which are in the following terms :--
(1) Is the suit barred by limitation?
9. (2)Has the plaintiff or his alleged vendor ever acquired any right, title, interest and possession in the suit land?
10. (3)Had the Rent Execution Case No, 392/52 the effect of rent decree and were the interests of the under-tenants legally annulled?
11. (4)Was the defendant No, 19 a benamdar for the defendants Nos, 15 to 18 regarding the suit land?
12. (5)Is the story of possession and dispossession as alleged in the plaint true?
13. (6)Are the defendants 1 to 14 necessary parties to this suit?
14. (7)Is the suit bad for misjoinder of parties and cause of action?
15. (8)Is the plaintiff entitled to get any compensation as prayed for and, if so, how much?
16. (9)Is the suit properly valued and duly stamped?
(10) To what relief, if any, is the plaintiff entitled?
17. The learned Subordinate Judge on a consideration of the evidence on record answered the issues Nos, 2 and 5 against the plaintiff. As regards issue No, 4 the learned Subordinate Judge held that the defendant No, 19 was a benamdar of the defendants Nos, 15 to 18 in respect of the land in suit.
18. The suit was decreed on contest against the defendant No, 19 with respect to the alternative prayer with costs for a sum of Rs, 2,067 and odd.
19. Against the said decision of the learned Subordinate Judge the defendant No, 19 has preferred this appeal. Mr. Kazi Shafiuddin, the learned Advocate appearing on behalf of the appellant has contended before us that the defendants Nos, 15 and 16 failed to prove the motive for the benami and that the court below misplaced the onus of proof in respect of the benami upon the defendant No, 19 and the plaintiff. In this connection he also argued that the trial Court was wholly wrong in framing issue No, 4 and trying that issue in the present suit.
20. We would like to observe at the outset that we do not find any substance in the contention of the learned Advocate for the appellant that the trial Court was wrong in framing and trying issue No, 4 in this case. On the contrary, we find that in order to decide the suit, for or against the plaintiff, the conclusive determination of the dispute between the defendants Nos, 15 and 16 on the one hand and the defendant No, 19 on the other is essential and indispensible. The plaintiff's suit had been properly framed making all the interested persons parties to the suit and adequate court-fee was paid on the plaint. Each set of the contesting defendants exhaustively pleaded their respective cases in the written statements and led evidence in support thereof and the trial Court, on a detailed consideration of the evidence on record, arrived at the finding that the defendant No, 19 was the benamdar of the defendants Nos, 15 to 18. It is not his case that he was taken unaware and that he could not meet the case of benami brought against him and that he was thereby prejudiced. Moreover, the learned Advocate for the appellant could not place any provision of the Civil Procedure Code to show that the Court's jurisdiction was barred to try issue No, 4 in the facts and circumstances of the case.
21. It is well settled that the onus probandi to prove the benami character of a transaction lies upon him who alleges it. In this case the onus of proving that the auction-purchase in question was made in the benami of the defendant No, 19 undoubtedly lies upon the defendants Nos, 15 to 18.
22. There are certain well known tests for judging whether a transaction is a benami or not. In this appeal we are not called upon to reassess the evidence on record applying all the tests laid down in judicial pronouncements. For example, the important question as to the capacity to pay the consideration money for the auction sale in question by the late Siddiqur Rahman and his brothers, the defendants 15 and 16, either jointly or singly, is not at all in dispute in this case. We shall, however, deal with only those questions that have been raised before us by the learned Advocate for the appellant in assailing the decision of the trial Court.
23. The learned Advocate for the appellant has contended before us that in this case the defendants Nos, 15 and 16 failed to establish the motive for the benami. Motive for the benami is undoubtedly one of the tests applied for judging whether a particular transaction was a benami or not. The defendants 15 and 16 led evidence to prove the motive for the benami. The evidence of D. W. 2, Fazlur Rahman (defendant No, 15 and one of the brothers of late Siddiqur Rahman) on the point is that is that he and his brothers were the owners of the land in suit (at Mouja East Hinguli) in tapa right; that their tapa right was sold in auction and was purchased by the 3 brothers, Ahsanulla, Ershadulla and Nasrulla of Mouja Paschim Issakhali, although the purchase was made in the name of Ahsanulla alone. Thereafter they annulled the dartapa interest of Shash Kumar Karmakar and others under section 167 of the Bengal Tenancy Act and ultimately took khas possession of the lands in suit in execution of the decree in Title Suit No, 94 of 1944 Exh. G (2). This part of the evidence of D. W. 2 has not at all been challenged in his cross-examination. Further evidence of D. W. 2 is that he and his brother on the other hand also purchased in auction the lands of a holding belonging to said Ahsanulla and his brothers of their own Mouja Paschim Issakhali. The distance between the said two villages was about 10 to 12 miles and naturally there was inconvenience in the management of the properties by both the parties. As Ahsanullah and his brothers were close relatives of D. W. 2 and his brothers, it was amicably arranged between the parties that the respective original lands would be exchanged. That is to say, the lands in suit which originally belonged to D. W. 2 and his brothers, but purchased in auction by Ahsanulla and his brothers would be given back to the former and, as a consideration for that the lands of Paschim Issakhali Mouja auction-purchased by Siddiqur Rahman and his brothers would be given back to Ahsanulla and his brothers to whom it originally belonged. It was further arranged between the parties that Ahsanulla and his brothers would make default in payment of the rent of the holding in suit and allow it to be sold in auction for the arrears of rent and Siddiqur Rahman and his brothers would purchase the same in auction. This was actually done but as Siddiqur Rahman and his brothers were the previous owners of the tapa, it was considered prudent that the second auction- purchase should not be made in their name, but in the name of the defendant No, 19 at that time was none but the son-in-law of Siddiqur Rahman.
24. In support of the oral testimony of the D. W. 2 on the point under consideration documentary evidence has also been furnished. The certificate of sale, Exh. I (1) shows that Fazlur Rahman, the defendant No, 16 auction-purchased the lands of R. S. Khatian No, 860 of Mouja Paschim Issakhali, P. S. IvIirsharali, measuring 8.93 acres, in Rent Execution Case No, 10 of 1939, arising out of Rent Suit No, 889/77 of 1936. It further shows that Saleha Khatun Begum wife of Ebadatullah Chowdhury was the decree-holder and Ahsanulla and his brothers and others were the judgment-debtors. Thus on a consideration of the evidence, both oral and documentary, on the point, we are clearly of the view that the defendants 15 to 18 have conclusively proved the motive for the benami. In this connection we may, however, usefully refer to the observations of their Lordships of the Judicial Committee in the case of Uman Prashad v. Gandhaarp Singh . At page 129 of the report of Lords Horbhouse observed: "It is familiar to us all that the system of putting property benami is extremely so common in India that the mere fact of a deed being executed in proper form and apparently effecting a valid transfer to another is not as good evidence of a real transfer as it would be in other countries, and even a slight quantity of evidence to show that it was a sham transaction will suffice for the purpose. Still, such a transfer cannot be considered as nothing. The person who impugns its apparent character must shew something or other to establish that it is a benami or sham transaction."
25. In the case of Hakim Maulvi Mohammad Mahbub Ali Khan v. Bharat Indu and others the above view was reiterated and quoted by their Lordships of the Judicial Committee at page 326 of the report after the following observations : "On the other hand, in regard to benami transaction, Courts of law should not approach them with that scrupulous rigour which in other systems of jurisprudence may demand the existence of the1 2 clearest positive evidence that the ex facie owner of a property is a trustee for or holds the same for the interest of another."
26. The learned Advocate for the appellant next urged before us that one of the important test applied for examining a parti-cular transaction to determine whether it was a benami or not is to consider from whose custody the document of title was produced. In this connection be also pressed the application for acceptance of the additional evidence. In this case the only document of title is the original Certificate of Sale granted by the Court. The defendants Nos, 15 and 16's case is that the defendant No, 19 exercised undue influence upon his mother-in-law and sister-in-law (defendants 17 and 18) and he removed certain important documents concerning the family properties including the original Certificate of Sale from the possession of the defendants Nos, 17 and 18. It will be worthwhile to state in some detail some very interesting facts in connection with this sale certificate. It appears from the order-sheet of the trial Court that the defendant No, 19 filed his written statement on 12th March 1960, which was accepted by the Court on 16th March 1960. The defendant No, 19 did not file any document within the prescribed period. Then on 30th November 1960, the case was peremptorily fixed for hearing on 13th February 1961. Meanwhile the defendant No, 19 filed a written complaint, Exh. C (1) to the Officer-in-Charge, Kotwali Police Station on 10th February 1961. In paragraph 2 of that petition it was stated that he had some landed properties in the villages Sattarua, Hinguli Bhalukia, Geramara, Paschim Joar, Katalganj, Azam Nagar, Ali Nagar and Dhoom within the Police Station Mirsarai, District Chittagong. In paragraph 3 of that petition it was stated that some of the documents of his landed properties were kept in the almirah at his town residence ; the paragraph 4 of the said petition was to the following effect:-- "That the hearing date of a Civil Suit No, 53 of 1959 having been fixed on 13-2-1961 in the Court of 3rd Sub-Judge, Chittagong for hearing, in which I am one of the defendants and in which the Sale Certificate and Delivery of Possession Certificate of Rent Suit No, 681 of 1952 of the Third Munsif Court, Chittagong, disposed of on 21-3-1953 is the main document.
27. That a few days before the date fixed when I opened the said almirah to take the said document I was surprised to see that not a single document was there in the desk of the almirah.
28. Thus it i s apparent that some miscreants or some interested persons have stolen away my documents to use them against me or to destroy them in order to adversely affect me in my legal rights and title of the landed properties."
29. His prayer was that a G. D. entry may be made. Exh. F (1) is the certified copy of the entry in the Original Diary Book of the Kotwali Police Station. The last sentence of that entry is to the effect : "The informant kept this for information in G. D. for reference. It will be noticed that in Exh. C (1) no person, not to speak of the defendants 15 to 18, was named as a suspect who had taken away the documents. The learned Subordinate Judge made certain observations against the defendant No, 19 for the non-production of the Sale Certificate. The present appeal was filed in this Court on 20th October 1961. Thereafter the appellant filed an application for acceptance of additional evidence.
30. The documents sought to be produced as additional evidence are the certified copy of the order dated 17th April 1953, passed by the 3rd Court of the Munsif, Chittagong Sadar in Rent Execution Case No, 681 of 1952 and the original Sale Certificate in question. The grounds for non-production of these documents before the trial Court and as to how he subsequently came to possess the documents were assigned in paragraph 9 of the petition for additional evidence which are to the following effect : "That during the trial this petitioner-defendant No, 19 could not produce the original sale certificate and delivery of possession as it was lost and there was a general diary entry to that effect (Exh. C- 1) and your petitioner has reason to believe that those documents were taken away by defendants Nos, 17 and 18, 5/6 months before the hearing of this suit to put the defendant into difficulty. That on 14-9-62 your petitioner to his great surprise got the aforesaid documents viz., sale certificate and delivery of possession at his residence in Chittagong town, which were thrown by some body through the window of your petitioner's house. That this fact was accordingly informed to the Police Station, Kotwali, Chittagong on the same date. That the said Sale Certificate and Delivery of possession is annexed herewith as Annexures A and B respectively." (The underlining* is ours).
31. The above statements speak for themselves and hardly need any comment. Suffice it to say that the entire story is a frivolous and concocted one and speaks a volume against the conduct of the defendant No,
19. This lends positive support to the defendants Nos, 15 and 16's case that the Sale Certificate contained certain endorsements on the back page thereof by their deceased brother Siddiqur Rahman and since those endorsements would go against the interest of the defendant No, 19, he withheld the same. This case was specifically put both to P. W. 1 and D. W. 9 which they, however, denied but notwithstanding the denial the circumstances and the materials on record have afforded unshakeable basis for the suggestion. We have examined the Sale Certificate annexed to the petition for additional evidence. It contains certain clear marks of erasures but notwithstanding the erasures the words `Siddiqur Rahman' are visible on the back page of the Sale Certificate. The marks of erasures of the other writings are there. There are also marks of erasing on the top of the first page of the Sale Certificate. Thus the circumstances surrounding the Sale Certificate go a long way to substantiate the defendants Nos 15 and 16's claim that there were certain endorsement on the back of the original Sale Certificate by the late Siddiqur Rahman which would have shown that the purchase was made in the benami of the defendant No,
19. We have accepted the Sale Certificate Annexure 'A' and the certified copy of the order-sheet as additional evidence since the formal proof thereof was waived by the respondents, not for the reasons assigned in paragraph 9 of the petition but on the ground that this is necessary for the Court for arriving at a correct decision and to enable the Court to pronounce the judgment.
32. The defendants also produced certain other documentary evidence to corroborate their case that, as a matter of fact the money for the auction-purchase was paid by the late Siddiqur Rahman and the purchase was made in the benami of the defendant No, 19 on behalf of the three brothers. Exh.
33. A series are the accounts of expenditure maintained by the late Siddiqur Rahman. One of those was written by one Chandra Babu and the others were written by the late Siddiqur Rahman himself.
34. The learned Advocate for the appellant took exception to the admissibility of these documents into evidence on two counts. His first contention is that the accounts of expenditure, improperly described as account books, are per se inadmissible in evidence. Secondly, they have not been legally proved. Before taking up the consideration of these points we want to make clear that as a matter of fact the defendants Nos, 15 and 16's case on the relevant point does not suffer in the least even if this corroborative evidence is totally ignored inasmuch as there are other corroborative evidence such as the order of the Revenue authority exhibited in the case without any objection.
35. But we prefer not to cut short the matter in view of the persistent arguments advanced before us by the learned Advocate for the appellant.
36. In elucidating the first point the learned Advocate advanced lengthy arguments on the expressions "books of account", "regularly kept in the course of business", as appearing in section 34 of the Evidence Act. He also cited a few cases to show how the term "book", "account", "books of account" and "business" etc., had been sought to be defined or described in those cases. The learned Advocate was, however, conscious of the fact that there was a great deal of divergence of views on these topics and a host of decisions counter to the views he adumbrated could also be cited.
37. We, therefore, do not consider it worthwhile to allude to these arguments any more and unnecessarily prolong the judgment. We considered it safe and proper to concentrate our attention to the examination of the documents (Exh. A series) in order to see whether they have the qualifications to lay claim to be admissible under section 34 of the Evidence Act. Instead of doing this in one sentence, it is perhaps desirable that we should record, in very brief, our reading of these documents for their claim to the admissibility in evidence. These are neatly stitched old books. The cover page of Exh. A contains the inscription in Bengali which may be translated as "Account Book for annual rents payable. Malik Siddiqur Rahman Chowdhury of village Sattarua". In the body of this book as many as 60 items of properties have been mentioned seriatim and different particulars have been noted with respect to each property in the several columns. Similarly, the cover page of Exh. A (I) contains the inscription, "Account of the rent payable to the estate of Ray Bahadur", and in the body of the book as many as 63 items of properties have been listed and different particulars have been noted against each property in the respective columns. It appears that certain principles have been followed in maintaining these books. Exh. A (2) is an account book for three years beginning from the month of Kartik 1355 B.S. up to the month of Kartik 1358 B.S. This book contains entries of expenses made on different dates. It does not show the conventional style of credit side and debit side and the daily opening and closing balances. But these are not indispensable qualifications for an account book being admissible in evidence; it all depends upon the nature of the account. The same is true of the account book Exh. A (3) which commended from 1st Baishak 1349 B.S. It will be well to remember in this connection that these account books were maintained by a moderately educated rural gentlemen with respect to his properties and occasional expenses and should not be confused with the account books kept and maintained by a modern commercial firm. On an examination of these books we are absolutely satisfied that they are genuine documents and satisfy the requirements of being admissible under section 34 of the Evidence Act.
38. Having said so we may, however, approach the question of admissibility from another standpoint.
39. It has since been formally proved that at least three books were maintained by the late Siddiqur Rahman in his own writing. Even assuming for the sake of argument, that they do not strictly conform to the requirements of "books of accounts", yet it cannot be denied that they consist of memorandum made by Siddiqur Rahman in the ordinary course of business and they are surely admissible within the terms of subsection (2) of section 32 of the Evidence Act.
40. We may next take up the second point urged by the learned Advocate for the appellant as to the mode of proof of the entries in Exh. A series. It is true that there is no presumption of correctness attaching to the entries in a book of account and each item in the books must be specifically proved and separately marked. But it is also true at the same time that the mode of proof, being a question of procedure, may be waived G and as a matter of fact the record of the case shows that the account books were proved without objection and each book in its entirety was marked without each entry therein being specifically proved and separately marked. If an objection to the mode of proof of these account books would have been raised at the time the evidence was given, it might be within the power of the party offering the proof to prove them in a regular manner.
41. Therefore when no objection was taken to the mode of proof of a relevant fact at the time evidence in proof of it was given, the party neglecting to object or abstaining from objecting to it would not be permitted to object at a later stage in appeal. In H this context we may refer to an observation of their Lordships of the Judicial Committee in the case of Gopal Das and another v. Sri Thakurji and others . At page 87 of the report his Lordship Sir George Rankin observed: "Where objection to be taken is not that the document is in itself inadmissible but that the mode of proof put forward is irregular or insufficient it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. A party cannot lie by until the case comes before a Court of appeal and then complain for the first time of the mode of proof."
42. Moreover, the objection loses much of its force if the object for which the account books were proved is considered closely. It appears that they were proved not to charge the defendant No, 19 with a particular liability, but to corroborate the oral testimony of D. W. 2 that the defendants Nos, 153 and 16 and their deceased brother Siddiqur Rahman had considerable properties that they were joint in mess and jointly acquired properties during the periods shown in the account books; that one of the entry in Exh. A (3) relates to the acution-purchases in dispute, etc. Another important fact in this connection cannot be lost sight of. The evidence of D.W. 2 Fazlur Rahman who proved these account books is that they were written and maintained by his elder brother Siddiqur Rahman, the father-in-law of defendant No,
19. He, however, admitted that the account books were not written in his presence. He denied the suggestion that with a view to creating evidence for the suit he himself entered the writing in the account books in respect of the land in suit. Exh. A (3) contains certain entries exactly concerning the purchase in question. The D.
43. W. 2 (defendant No, 15) was examined on the 12th June 1961 and the defendant No, 19 examined himself as D. W. 9 on the 13th and 14th June 1961. In his lengthy examination-in-chief D. W. 9 did not say a word against these account books Exh. A series. On recall, however, he stated : "I know the handwriting of my father-in-law, Siddique Mia. The documents Exhs. A to A (3), C. C 1 and C. 2 are not in the handwriting of my father-in-law Siddique Mia." In his cross-examination after the recall he stated : "I have got papers with me showing handwriting of Siddique. I have not produced anything of these. I have seen these above documents for the first time when these were marked Exhibits. I have not asked anything or said anything to my lawyer to cross-examine the witness on this point, when these documents were marked. My lawyer said that denial of the handwriting of Siddique Mia on the above documents was necessary. My father-in-law would maintain his accounts of expenditure."
44. He thus admits that his father-in-law Siddiqur Rahman would maintain his accounts of expenditure. The only suggestion with respect to these documents put to D. W. 2 as noticed earlier was that he had himself entered the writing concerning the land in suit which was, however, denied by the witness. He did not raise any objection at the time of their admission. He did not consider it necessary to deny in his examination-in-chief that the account books were written by Siddiqur Rahman. From these facts it is crystal clear that he gave the denial for the sake of denial only at the advice of his lawyer and there was no substance in that. Thus having regard to the facts and circumstances discussed above as well as the object for which the account books were proved we are of the opinion that although each and every entry therein had not been separately marked by the trial Court, yet no illegality was committed and that such an objection cannot be sustained in this appeal. Furthermore, the trial Court except referring to the account books as a corroborative evidence, did not base any finding treating them as substantive evidence.
45. The defendant No, 19 has produced certain documents to show that he had the capacity to purchase the land in suit with his own money. His evidence is that his paternal homestead was washed away by the Feni river. He wanted to make a homestead in his father-in-law's village and with that end in view he purchased the land in suit in auction with his own money and in his own interest. The Sale Certificate and the writ of delivery of possession were all with him. He produced Exh. C (1) to show that he had a press and that he was one of the Directors of the Muslim India Press Limited, which was started in Calcutta and after Independence it was transferred to Dacca. After Independence he opted for East Pakistan and was employed in the T. A. Branch of the Railway and after serving for some time he resigned from the post and got himself admitted in the M. Corn.
46. Class in the Dacca University. During 1948-50 he prosecuted his studies both in M. Corn. and LL.B. In 1951 he passed the M. Com. examination and in 1952 he sat for the final law examination. Exhs. A-1 to A-1 (3) lend support to the above story. His further case is that during that period he also looked after the press-business. He has produced certain kobalas Exhs. B-1 to B-1 (2) dated 17-6-55, 15-2- 55 and 8-2-56 respectively to show that he had purchased some other properties by himself but none of them relate to the period in question. The defendants Nos, 15 and 16 on the other hand have established that at the relevant point of time the defendant No, 19 was a student and he had been receiving monthly remittance : from Siddiqur Rahman. In support of that they have proved some money-order coupons, Exhs. E to E (6) which show that the remittances varied from Rs, 40 to 180 per month. In some months the money was remitted twice. Postal Seal of the Dacca Post Office on these coupons shows the dates as 5-11-51, 23-6-52, 3-11-52, 21-8-52. 28-6-52, 4-2-52 and 6-12- 51 respectively. The auction sale took place on 21-1-53 and was confirmed on 3-3-53. The defendant No, 19 joined Feni College in 1953 but he did not disclose the month. The defendant No, 19's case, however, is that he received the remittances on the basis of the terms settled at the time of the marriage. Though he has produced certain documents to show that he had purchased lands independently and in the name of his brother, no documentary evidence in the shape of Bank Account Papers or the Postal Account Papers has been produced to show that at the relevant point of time defendant No, 19 had the means to pay the consideration money for the auction purchases. Thus regard having had to the above facts it is difficult to accept the defendant No, 19's case that he had the independent source of the consideration money for the purchase. It is hard to believe that the defendant No, 19 with his independent income acquired properties and his father- in-law Siddiqur Rahman maintained his wife and bore his educational expenses and regularly remitted money to him as per terms settled at the time of the marriage.
47. Even if it be assumed, in view of the small amount involved for the auction-purchase, that the defendant No, 19 had the source for the money required, yet this advantage is lost or offset the next moment by the other considerations which we propose to discuss here. It is his case that D. W. 12 Golam Rahman, a pleader's clerk and for some time a stamp vendor gave him the information that Ahsanullah's land was going to be sold in auction. He then took information from the Munsiff's Court through said Golam Rahman. In his cross-examination he admitted: "Ramendra Babu Pleader auctioned on my behalf. I know Sachindra Pal, Clerk of Ramendra Babu.
48. He was the pleader's clerk. I received the receipt of the auction money. On the very first day I paid the full consideration money to my lawyer. Ramendra Babu obtained the sale certificate for me. I paid Rs, 130 to Ramendra Babu. I cannot remember the exact date of delivery of possession. It is true that Pleader Ramendra Babu and his Clerk Sachindra did everything for me. I cannot say who handed over the sale certified copy of the delivery of possession and the writ of delivery of possession. Total land is 4.33 decimals. I have made over one dakhila to the plaintiff and the rest of the dakhilas are at home. Both myself and my father-in-law would pay the rent of the suit land. I cannot say the disputed Jama. I cannot say who was marfatdar of these dakhilas which are with me." (Underlining is ours).
49. Let us now analyse the above statements. The defendant No, 19 considered it necessary to examine Golam Rahman D. W. 12, who according to him, only supplied the information about the auction sale, but he did not consider it worthwhile to examine either his alleged Pleader Ramendra Babu or his Clerk Sachindra the two most competent persons who "did everything" for him in connection with the auction-purchase. It is not his case that they are dead or have left the country for ever.
50. Had his Pleader Ramendra Babu been examined in this case and if he testified in support of what is stated in the above-quoted passage, it would have certainly deserved credence. He has not proved the alleged receipt. He has not proved a single dakhila although he claimed "the rest of the dakhilas are at home." The only dakhila which he made over to the plaintiff is Exh.
2. This was granted on 28-4-57 by the Tehsildar of the Government Acquired Estate with the seal "PROVISIONAL" impressed thereon. The transfer in favour of the plaintiff on the basis of Exh. I was effected on 9-11-57. In the context of the facts revealed in the case the evidentiary value of the dakhila is almost nil. He claimed "both myself and my father-in-law would pay the rent of the suit land". But in the very next sentence the truth came out of his mouth when he said that he could not say the rent of the disputed jama. The above admission has another impact ; it lends support to the defendants Nos, 15 and 16's case. Thus on a close scrutiny of the evidence of D. W. 9 (defendant 19) on the relevant points and also having weighed his evidence as a whole against the other evidence on records we find that his case is wholly unbelievable.
51. On the question of possession the trial Court disbelieved the plaintiff's witnesses on the point and rejected his story of possession and dispossession ; the trial Court equally disbelieved the defendant No, 19's story of possession and accepted the evidence on the point furnished by the defendants Nos, 15 and 1 6. The learned Advocate for the appellant could not point out any error or lacuna in the assessm ent of the evidence on the point by the trial Court. Having read the evidence, we for ourselves, do not find anything to differ from the finding of the learned Subordinate Judge.
52. However, we propose to record our own assessment of the evidence in the question of possession.
53. It is not the plaintiff's case that he possessed the land in suit by personal cultivation. The plaintiff, P.
54. W. 1, stated that he let out the land in suit in barga after purchase to P. W. 3 Shaikh Ahmed, (son of Osman Ali) who executed a kabuliat and grew crops but the defendants 1 to 14 forcibly reaped away the paddy, over which a case under section 144 of the Code of Criminal Procedure was initiated by him. An injunction order was issued by the criminal Court and for violation thereof in respect of 2 plots a case under section 188 of the Pakistan Penal Code was started against the defendants 1 to 14 which, however, ended in their acquittal. He admitted that the defendants 1 to 14 are still in possession. This evidence of P. W. 1 is self-explanatory and leads to the conclusion that he never got possession of the land in suit after his purchase as claimed and accordingly the story of barga settlement with P. W. 3 is unbelievable. In this view of the matter, that is to say, the evidence of the principal witness on the basic story having failed it is futile to advert at length to the corroborative evidence of P. W. 4 Sultan Ahmad and P. W. 5 Ali Akbar.
55. The evidence of D. W. 9 (defendant 19) on the question of possession is : "I possessed the disputed lands after auction-purchase and possessed for 5 years since 1360--64 B. S. In the first three years Sultan Serang (D. W. 10) possessed under me as Karshdar and then for 2 years another Sultan Ahmad (D. W. 1l)possessed under me as Karshdar. I then sold to the plaintiff, I delivered possession to the plaintiff and he possessed. He grew crop through Shaikh Ahmed and then he was dis-possessed."
56. We have already seen that the plaintiff did not get possession of the land in suit after his purchase.
57. We may now direct our attention to the evidence to see whether the defendant No, 19 ever possessed the land in suit. D. W. 10 Sultan Ahmad Serang sought to corroborate D. W. 9, but in his cross-examination he admitted that he neither executed any kabuliat nor had he any receipt to show the payment of the cash rent at the rate of Rs, 200 per year. The area of the land in suit is only 1.28 acres. In view of this, the annual cash rent of Rs, 200d per month appears to be on the very high side. Besides, D. W. 10 served as a Serang in a Steamer for 22-23 years and gained experience of practical life. It is difficult to believe that an experienced and prudent man like D. W. 10 had silently paid the exhorbitant cash rent for the three successive years without a receipt. He admitted that he had nothing to prove that he paid cash money to Sadeque. He also admitted that he has no land never the land in suit and his house was at a distance of half a mile from the land in suit and that he had two servants named Kala Mia and Ali Ahmed (not examined as witness) who would plough the land. He further admitted that he had brought an arson case against the son of Fazal Ahmed but he failed to produce any witnesses. Thus enmity was established. We, therefore, totally disbelieve this witness and discard his testimony, with the consequence that defendant No, 19's story of possession for the first three years from 1360-62 B. S. fails.
58. The evidence of D. W. 11 Sultan Ahmed (son of Abid Ali) is no better. His evidence is that during 1363- 64 B.S. he cultivated the land in suit as a karshdar under Sadeque at Rs, 228 per year. None was present at the time of his talk with Sadeque for karsha settlement which, however, took place at Karser Bazar. None was present when he paid the cash rent at the house of Sadeque without taking any receipt therefor. In cross-examination he admitted that his son Aminul Hoque is a student of the Chittagong City Night College of which the defendant No, 19 is the Vice-Principal. He, however, denied the suggestion that his son was a lodger at the town residence of the defendant No,
19. His evidence too suffers from inherent improbabilities and does not at all inspire any confidence in us.
59. Consequently, we totally disbelieve the defendant No, 19's story of possession of the land in suit.
60. On the other hand the D. W. 2 (defendant No, 15) deposed that they purchased the land in suit in the benami of the defendant No, 19, while the latter was a student at Dacca and that D. W. 7 Nabi Ahmad took delivery of possession on their behalf. D. W. 1 Siddiqur Rahman Chowdbury, Arpana Kumar Kor and others were the witnesses to the delivery of possession. After taking delivery of possession of the land in suit they possessed it for the first 5 years under their own plough.
61. Thereafter D. W. 3 Rahimulla and D. W. 4 Kobbad Ahmed possessed the land in suit in barga for 3 years and 2 years respectively and after that the land was again taken for self-cultivation. His further evidence is that his brother late Siddiqur Rahman bore the expenses of auction-purchase and delivery of possession and that Sachindra Pal did the work of their Pleader's Clerk. He denied the story of possession given both by the plaintiff and the defendant No,
19. Each one of the witnesses named above has corroborated the testimony of the D. W. 2 and there is neither any contradiction nor any inherent improbability in their testimony. Moreover, their testimony has been corroborated by the documentary evidence, namely, the orders passed by the Revenue authority in objection cases under section 19 (1) of the East Bengal State Acquisition and Tenancy Act, admitted in evidence without objection. The Revenue authority went to the locality and held on the spot enquiry to ascertain the question of possession of the land in suit as objection was raised by the defendant No,
19. On a local inspection they found the possession of the land in suit with the defendants Nos, 15 and 16 and accordingly turned down the objection of the defendant No, 19 and recorded the land in suit in the names of the defendants Nos, 15 to 18. It is important to note in this connection that Certificate of Sale in question not only relates to the land in suit but it also relates to another holding bearing Khatian No, 935 of Sattrua Mouja. Defendants Nos, 15 and 16 have also proved Exhs. H (15) to show that the lands of Sattrua Mouja had also been recorded in their names and the defendant No, 19 did not raise any objection with regard to the said lands of Sattrua covered by the sale certificate. After his dispute regarding the land in suit was overruled by the Revenue authority, the defendant No, 19 did not approach the higher authority in appeal or revision.
62. These facts go to show that the possession was all along with the defendants NO3. 15 and 16.
63. The learned Advocate for the appellant next urged before us that the suit was hit by the provisions of section 66 of the Civil Procedure Code. For the sake of convenience we may reproduce section 66 of the Civil Procedure Code which is in the following terms : "(1) No suit shall be maintained against any person claiming title under a purchase certified by the Court in such manner as may be prescribed on the ground that the purchase was made on behalf of the plaintiff or on behalf of some one through whom the plaintiff claims.
(2) Nothing in this section shall bar a suit to obtain a declaration that the name of any purchaser certified as aforesaid was inserted in the certificate fraudulently or without the consent of the real purchaser, or interfere with the right of a third person to proceed against that property, though ostensibly sold to the certified purchaser, on the ground that it is liable to satisfy a claim of such third person against the real owner."
64. In order to appreciate the contention of the learned Advocate it is necessary to keep certain salient facts on the focus. These are that the plaintiff claimed his title on the basis of a purchase from the defendant No, 19 who, according to his case, was the real owner. The defendants Nos, 15 and 16 however, raised the plea that the defendant No, 19, the certified purchaser, was their benamdar, and the defendant No, 19 resisted that plea and claimed to be the true owner. On these facts, the provision of subsection (1) of section 66 of the Civil Procedure Code is not at all attracted. This provision, however, applies and places a restriction on the plea of benami when the real owner makes it the basis of a suit against his benamdar on the assertion that the purchase in Court sale was made by him in the latter's name pursuant to a private agreement. But this is not the case here. Subsection (1) of section 66 affords the certified purchaser a defence in a suit for possession brought against him by the real owner. But the facts are otherwise in the present case. Certainly the above provision would have been applicable had the defendants Nos, 15 and 16 been the plaintiffs in this case. In this case it has been concurrently found that the defendants 15 and 16 rather the defendants 15 to 18 have always been in possession of the lands in suit ; they did not seek the assistance of the Court as plaintiff ; they just defended their case in the, suit. Thus, in view of the facts and circumstances of this case the provisions of section 66 has no manner of application.
65. The learned Advocate for the appellant also raised a point that the plaintiff was entitled to get the land in suit from the defendants 15-16 instead of the consideration money from the defendant No, 19 under the provisions of section 41 of the Transfer of Property Act. Section 41 of the Transfer of Property Act is as follows :- "Where, with the consent, express or implied, of the persons interested in immovable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorised to make it : provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith."
66. The onus undoubtedly lies on him who relies on section 41 of the Transfer of Property Act to establish the facts which, according to him, entitled him to the benefit of the rules laid down in that section. In this case it was neither pleaded by the plaintiff nor by the defendant No, 19 in his written statement. No issue was framed in that behalf nor any averment was made by the defendant No, 19 in his evidence before the Court. For the first time this plea has been taken in this Court. It goes without saying that the decision of this question is entirely dependent upon facts and since no evidence was led in support of this contention no decision can be arrived at on the materials on record.
67. In view of the claim made the onus lay upon the defendant No, 19 to prove that the plaintiff was entitled to the benefit. In this connection, we may profitably refer to the observations of his Lordship Hamoodur Rahman, J. as his Lordship then was, in the case of Najir Ahmed Serang v. Benoy Bhusan Saha and others . The relevant portion is at page 166. His Lordship after discussing the facts of that case observed : "I must say that in the absence of any evidence on record as to this question. The party who must fail, must be the party on whom the onus to prove this rested, and I have no doubt in my mind that the onus to prove as to whether the defendant No, 11 was a bona fide purchaser for value without notice was entirely on the defendant No, 11 and not on the plaintiff in this case. From the fact that no evidence was adduced with regard thereto it must be held that the defendant No, 11 failed to adduce any evidence on this point, and therefore it is the defendant No, 11 who must fail on this account. It might be that he did not press this claim, and therefore raised no issue and led no evidence therein. In the view that I take, however, on the question of onus of proof I am also supported by the decision in the case of Mt. Sunder Kuer v. Shah Udey Ram and others AIR 1944 All.
68. 42 where their Lordships Verma and Yorke, JJ. held that it is for the party relying on section 41 of the Transfer of Property Act to establish the facts, which according to him, entitled him to the benefit of the rules laid down in that section. In the present case, it was for the defendant to establish the facts, which according to him, entitled him to the benefit of the rules, laid down in the said section, and therefore the onus was upon him to prove those facts."
69. In our opinion the above observations aptly apply in the present case. Therefore, we do not find any4 substance in this contention of the learned Advocate as well.
70. We may further add, that Mr. Dewan Mahbub Ali, the learned Advocate for the plaintiff-respondent, candidly conceded that it was difficult for him to support the argument of the learned Advocate for the appellant on this point and that his client was not entitled to the benefit of section 41 of the Transfer of Property Act on the evidence on record.
71. Thus having considered all the points urged before us and also having regard to the facts and circumstances of the case we do not find any substance in this appeal. The appeal is accordingly dismissed with one set of costs and the judgment and decree passed by the learned Subordinate Judge is affirmed. The cost will be divided equally between the defendants Nos, 15 and 16 and the plaintiff-respondent.
72. The connected Rule for additional evidence is made absolute. MAHMUD HUSSAIN, J.--I agree. 14 I A 127 23 C W N 321 AIR 1943 P C 83 8 DLR 159