1. ABU MD. ABDULLAH, J.---This is an appeal by the plaintiff, who has since been substituted by his heirs, against the judgment and decree passed by a Subordinate Judge of Mymensingh dismissing the suit for declaration that the plaintiff had purchased the disputed land recorded in Khatians Nos.
2. 79 and 81 of Monza Kheruajani in benami of defendant No. 1 and for declaration of plaintiffs title to the said land and for recovery of possession by evicting the defendant No. 1 therefrom. The case of the plaintiff was that after retirement from Government service and after partition he came down to Mymensingh and wanted to establish a farm for improved cultivation and with that object in view he purchased many lands. Plaintiff had first appointed one Rajab A.I maternal uncle of defendant No. 1 in his service to look after the property, realise rent and for other purposes. During that time defendant No. 1 used to read in Mymensingh institution living in the house of the plaintiff in Mymensingh. Sometime after, the plaintiff's officer Rajab A.I committed breach of trust and as such he dismissed Rajab A.I and subsequently engaged defendant No. 1 as his officer for the same purposes. Defendant No. 1 used to realise rent from the tenants of the plaintiff' and also Barga produce from the Bargadars and all the income of the plaintiff's land used to remain in the custody of defendant No. 1. The plaintiff acquired the lands of Jagat Kishore Chanda by first advancing Rs.
3. 12,000 on kot-mortgage and then by depositing the arrears `of rent as decreed under section 171 of the B. T. Act, Thereafter the plaintiff's wife took possession also of the homestead of Jagat Kishore by evicting him in execution of a decree for Barga produce in respect of the land which was subsequently settled with Jagat Kishore. One Kunja Behari Das had a Jote under the landlords in the Mouza Kunja Behari mortgaged a portion of his Jote to one Monojendra Narayan, one of the landlords of the Jote for Rs. 600, another portion to Joinarayan for Rs. 2,1 00 and another portion in favour of Kasimuddin for Rs. 200. The plaintiff purchased all the 3 mortgages. Subsequently Kunja Behari sold 8 pura of his Jote to Ibrahim Mondal and others, sons of one Dhana, but they did not take settlement from the landlord. Plaintiff subsequently brought a mortgage suit against Kunja Behari and others. During that time the defendant No. 1 informed the plaintiff that Ibrahim Mondal and others would sell the land purchased by them from Kunja Behari. Plaintiff asked defendant No. 1 to negotiate and purchase the land. The plaintiff ultimately purchased the land by a kabala dated 21-7-48 in the benami of defendant No. 1. It was agreed that the defendant No. 1 after taking settlement of the land from the landlord would execute a deed of release in favour of the plaintiff.
4. The plaintiff felt that there would be difficulty to have the land recorded in his name in the landlords Sherista as the Hindu landlords were enraged with the plaintiff. Hence the necessity for the benami kabala. Defendant No. 1 engaged Bargadar on behalf of the plaintiff and realised barga produced from them. Plaintiff got the original kabala by which Ibrahim Mondal and others purchas--ed the land from Kunja Behad and the said kabala had been filed by him in the suit. Subsequently the defendant No. 1 did some acts of distrust and did not render accounts and as such the plaintiff discharged him from his service. This enraged defendant No. 1 to file an injunction Suit No. 109 of 1948 in the 3rd Court of Munsif at Mymensingh, alleging that the plaintiff had been trying to dispossess him from the property. But the defendant No. 1 did not proceed with the suit. The plaintiff continued to possess the land through his Bargadars and realised the barga produce for 1362 B. 5.
5. The land remained fallow after reaping Aman paddy and during that time defendant No. 1, in collusion with the discharged Mirdha Abdul Khaleque, dispossessed the plaintiff from the suit land.
6. Defendant No. 1 erected a house in a portion of the suit land and began to possess the land. The plaintiff filed the suit originally under section 9 of the Specific Relief Act and thereafter converted it into a full fledged title suit, for declaration of title and recovery of possession.
7. Defendant No. I contested the suit on the ground that the allegations of the plaintiff are false and that he had purchased the disputed land in his own name with his own money and the story of benami was false. Defendant No. 1 admitted that he was in the service of the plaintiff up to July 1945. Thereafter he took service as Headmaster of the Kheruajani School. At the request of the plaintiff, however, he continued in the management of his property up to December 1947, when he submitted full accounts with the plaintiff and severed all connections with the plaintiff and his property. He admits that the plaintiff wanted to purchase the land is question but did not want to pay in cash. Having been unsuccessful in litigation he was enraged with Ibrahim Mondal and others and in order to teach them a lesson, he purchased the mortgages of Kunja Behari. The plaintiff became angry with defen--dant No. I when he purchased lands of Ibrahim Mondal as that would frustrate his purpose of purchasing Kunja Behari's mortgages. A false criminal case was brought against him by an officer of the plaintiff's wife which was dismissed. The defendant denies the al--legation that he agreed to execute the deed of release in favour of the plaintiff after taking settlement from the landlord. He asserts that he himself settled the land with Bargadars by registered and unregistered kabuliyats and realised rent from tenants of the land not on behalf of the plaintiff but on his own behalf. He denies the allegation that he in collusion with Khaleque Mirdha and others, dispossessed plaintiff from the suit land. With regard to the injunction suit his contention is that the plaintiff tried to dispossess him from the suit land by creating barga kabuliyats. In order to save himself from that threat h: filed that injunction suit. When he found that there was no longer any threat of dispossession he did not proceed with the case. So far as the plaintiff's filing the original kabala of Kunja Behari is concerned it has been stated by the defendant that the plaintiff had paid Rs. 300 to the heirs of Dhana to get the original kabala from them at the time when plaintiff preferred an appeal against the order of ad interim injunction issued against him in the suit filed by defendant No. 1. He said that he did not get the original kabala at the time of the transaction as it was represented by the vendors that the original kabala had been filed in a suit and as such the certified copy was handed over to him which he had filed in Court.
8. On these grounds he had submitted that the suit should be dismissed with cost. The learned Munsif framed 12 issues and ultimately on his analysis of the evidence dismissed the suit. Hence this appeal.
9. The trial Court dismissed the suit of the plaintiff holding (1) that there was no relationship of master and servant between the plaintiff and the defendant No. 1 on the date of the kabala Exh. 1; (2) that there was material discrepancy in the evidence regarding plaintiff's intimation to the vendors to execute the (cabala in the name of the defendant; (3) that the original title deeds of the vendors were only produced by the plaintiff on 27-1-49 in the appeal preferred by the plaintiff against the order of temporary injunction passed by the trial Court on O. C. Suit Na. 109 of 1948 filed by the defendant No. 1 on 29-6-1948; (4) that the defendant No. I had enough money in his hand to pay the consideration of the kabala; (5) that the plaintiff's case of dis-possession from the suit land on 2-2-1956 was not acceptable and (6) that the reasons for the alleged benami was not sufficient.
10. It has been argued on behalf of the appellant that the reasons given by the learned Subordinate Judge are not borne out by the evidence on record. We have ourselves examined the-evidence and we are satisfied that there is substance in this contention of the appellant.
11. The first question that is to be considered by the Courts when deciding the question of benami is to find out the source of the consideration. It is in evidence that defendant No. 1 was dependant on the plaintiff during the period that he was receiving his education. It is also in evidence that he was taken into the service of the plaintiff and was looking after the property of the plaintiff as his trusted servant. Defendant No. 1 in his evidence has said "I did not purchase the suit land with the money of the plaintiff for Rs. 1,345 or any money as realisation of rent or price of crops of plaintiff was not in my custody. The plaintiff has not purchased the suit land in my benami. I served under plaintiff but I resigned on 21-7-1945. I was appointed as a Headmaster of Kheruajan M. E. School. In cross--- examination he said "I began to serve under the plaintiff in 1340 B. S. I worked for plaintiff in 1354 B. S. On 7-12-57 I gave nikash of the period including 1354 B. S." He further admits, on 27-2-48, I might have met plaintiff in Kheruajani I took settlement from landlord on 13-2-48. Plaintiff did not ask for the kabala, Nadahi Hishab etc. On 27-2-48 I made over these documents by a Firisti to plaintiff on 27-2-48. The date of the kabala Exh. A is 27-1-48. Therefore on defendant's own admission it appears that he was serving the plaintiff till 27-2-48 although he had resigned in 1945 and taken service as a Headmaster of a Village School.
12. The admission that he had received the proceed of Aria, crop of 1354 B. S. For which he had rendered accounts on 27-2-48 would clearly show that the defendant No. 1 had with him the money of the plaintiff on the date of the kabala executed on 29-1-48. He has admitted that his pay was Rs. 40 and Dearness Allowance Rs. 5 when he joined school. As a further source of income he has said that he inherited 3 puras of land. He further admitted that he acquired 7 pupas of land during his service under the plaintiff and before Exh. A he had invested Rs. 500 or Rs. 700 for business. He has further admitted that he used to earn Rs. 25 per month for five or six years. The cumulative effect of this evidence of defendant No. 1 himself shows that he could not possibly have the cash money of Rs. 8,000 as the consideration for the kabala Exh. A. The plaintiff has given his age as 75 years on the date of deposition that is 27 April 1959. Therefore on the date of the kabala he was fairly advanced in age and was dependent or defendant No. 1. The plaintiff has deposed that from 2 or 3 years back he cannot see at all. It may be reasonably held that at the relevant time he was also losing his eye-sight as has been clearly suggested to the defendant who in cross- examination has said "he had clear vision at that time". It is obvious that defendant No. 1 taking advantage of the confidence placed upon him was trying to make a bargain for himself. The whole history of defendant No. 1 shows that he could not have acquired this sum of Rs. 8,000 theth considera--petition of the kabala. It is not stated by the defendant No. 1 that he had sold any of his property in order to provide for the price. It is clearly stated in paragraph 4 in the plaint that the defendant No. I after his appointment took charge of the administration and management of the lands of the plaintiff and kept with him the whole income of the said lands. The admitted fact that the defendant No. 1 submitted the accounts for the period 1345 to 1358 B. S. Exh. L only on 27-2-1948 clearly bears out the statement in the plaint that the entire income of the land of the plaintiff under the management of defendant No. 1 for the whole period of service of 13 years under the plaintiff was kept with the defendant No. 1. These facts lead to the irresistible conclusion that the consideration for the kabala Exh. A was paid from the funds of the plaintiffs in the hand of the defendant No. 1.
13. The next question for consideration is from whose custody the original title deed of property is produced. The statements made in the plaint and the additional statement clearly show that the defendant No. 1 in his fiduciary capacity was to purchase the land on behalf of the plaintiff in his own name and obtain mutation in the landlord's sherishta. It is therefore not surprising that the original kabala remained in the custody of defendant No. 1. By the time that the plaintiff had become aware of the betrayal of the trust by defendant No. 1, their relations had become strained and therefore the kabala remained with the defendant No. 1. But the original kabala by which the vendors had given their title is coming forth from the custody of they plaintiff. It has been argued that the defendant No. 1 was' not given the original kabala at the time of the execution of the disputed kabala as the same was reported to be filed in a case and he was given a certified copy of the same which he has produced. It is true that the certified copy is a fairly old one but we cannot understand why the defendant No. I could not get possession of the original kabala by filing the certified copy in lieu thereof. After the alleged purchase of defendant No. 1 he would step into the shoes of his vendors and it would be natural for him to get the original kabala back by filing the certified copy. But no details of the litigation in question is mentioned. On the other hand evidence is given by the vendors themselves namely by Himmat A.I P. W. 4 is to the effect "We three brothers came to the plaintiffs residence in Mymensingh on call by plaintiff and asked him why did he send for us. The plaintiff told us that we would get Rs. 300 from him. He then paid us Rs. 300. Vakti took our L.T.I. At the residence of plaintiff and wrote our names in it. Ebir, thereafter handed over our original kabala executed by Kunja Das to the plaintiff."
14. Mr. Moinul Haq appearing on behalf of the defendant has pointed out the evidence of witness No. 3 Iman A.I to the effect "the original kabala by which we purchased the land was given to Joynal by my brother Ebir Mondal who is dead".
15. It is obvious that P. W. 3 was under a misapprehension. The fact remains that the original kabala by Kunja Behari has been produced by the plaintiff. In this connection also it must be remembered that the kabala price was fixed at Rs. 8,000 but only Rs. 2,400 was paid in cash and the balance adjusted against debts of the vendors. The defendant nowhere in his written statement has stated how much he paid to the vendors and whether any amount was adjusted towards any debt. But it is the consistent evidence of the vendors P. Ws. 3 and 4 that only Rs. 2,400 was paid in cash and the balance was adjusted against the debt of the vendors. In paragraph 9 of the written statement it is stated by the defendant No. 1 as follows:- "That some co-sharers of the disputed land on 12-4-48 and 8-5-48 executed a registered deed of release, within the knowledge of the plaintiff, in favour of the defendant No. 1 on receiving their share of consideration from the executant of the aforesaid kabala and after adjustment with them.
16. That in the aforesaid manner the defendant No. 1 on the basis of his own right and on the right of adverse possession for more than 12 years has been possessing the land by constructing homestead therein and cultivating and enjoying the usufructs.
17. But the alleged adjustment subsequent to the deed of alleged kabala and the deeds of release have obviously been taken with the purpose of meeting the possible argument that only Rs. 2,400 was paid in cash at the time of execution of the kabala. But even then no evidence is forthcoming when the vendors were paid the balance to meet their liabilities. What is really relevant in this case on this point is the custody of the original title deed. The defendant has said that the original title deed of the vendors was taken by the plaintiff by payment of Rs. 300 subsequently in 1949. But the case of the adjustment of the debts is consistent with the facts of the case as established by evidence of the vendors themselves. Moreover, the receipt Exh. 5 clearly bears out the reason for payment of Rs. 300. Exh. 5 bears the thumb---impression of all the vendors and reads as follows:- "Exh. 5.---Receipt granted by Ibir Mondal and others in favour of Mvi. Abdul Majid, dated the 13th Magh 1355 B. S., 25th January 1949.
18. L. T. I. Of Ibir Mondal L. T. I. Of Himmat Mondal on an one anna Revenue L. T.-I. Of Iman A.I Mondal stamp.
19. L. T. I. Of Sabed A.I Mondal By the pen of Abdur Razzaq Mazid Manzil, Mymensingh.
20. Granted by:-(I) Ibir Mondal, (2) Himmat Mondal, (3) Iman A.I Mondal, (4) Sabed A.I Mondal sons of Dhana Mondal of village Phulbaria, P. S. Kotwali, District Mymensingh.
21. This receipt is to the effect that the Jote land of Kunja Das which we used to possess after purchase and which we sold to you in the benami of your Karmachuri Md. Jainul Abedin in respect of which Gahar Mondal instituted a contributory suit for proportionate arrear rent and got decree and has put the same into execution, and you under a contract, were to pay the said money at the time of sale of the land.
22. Today we grant you this receipt after having received the sum of Rs. 300 on the account. Finish. 13- 10-55.
23. (Sd.) Bhakti Bhusan Sen Boundary Road, Mymensingh.
24. T. S. 123/57 Exh. 5 (On admission) M. A. Khalique M. J. 6-5-59."
25. The internal evidence of Exh. 5 to the effect that the vendors as far back as 26th January 1949 when the suit was not even contemplated (more than seven years before the institution of the suit) clearly bears out the plaintiff's case that the property was acquired by the plaintiff in the name of defendant No. 1 and clearly bears out the plaintiff's case that the balance of the consideration was to be adjusted against the debts of the vendors. The defendant No. 1 has not put forward any such case and does not explain why Rs. 2,400 only was paid in cash and how he paid the balance of the consideration of Rs. 8,000. The disputed kabala expressly refers to the contract to pay the debts of the vendors for which the sum of Rs. 5,600.00 was kept in deposit with the vendee. The defendant No. 1 does not say how and when he paid off this debt of the vendors Exh. 5 on the other hand clearly shows that the debt was paid by the plaintiff and he had in his hand left a sum of Rs. 300.00 which he returned to the vendors. Exh. 5 not only proves the plaintiff's case but shows how honest he was in his dealings.
26. The question of possession of the property comes next for consideration. In this connection the plaintiff alone has filed written kabuliyats Exh. 2 series of which Exhs. 2 to 2 (f) are registered barga kabuliyats. The kabuliyats extend for a period from 1948 to 28th of December 1954. But against these, defendant No. 1 has produced no kabuliyats in writing but has examined D. W. 1 Golam A.I Sheikh, and D. W. 3 Shahar A.I who testified that they took barga settlement of a portion of the disputed land from the defendant but in cross-examination D. W. 1 has said that no receipt was given for the payment. Shaheb also took to my east barga land from Joinal on the same date with me. I cannot say about other Bargadars taking settlement. This man's house is quarter of a mile from the disputed plot. So far as defendant No. 3 is concerned he states that he took barga settlement under unregistered documents it does not appear that even the unregistered document is forthcoming. The oral evidence of possession given on behalf of the plaintiff is given by D. Ws. 5 and 6 which speak about plaintiff's possession through Bargadars. Plaintiff has also examined 2 of the said Bargadars who were also the vendors who after the sale of plaintiff possessed the land as Bargadars. In our opinion the evidence given by the plaintiff is conclusive.
27. Mr. Moinul Haq has argued that the motive for the benami is not plausible. It is an admitted fact that the vendors of the plaintiff did not have their name registered in the sherista of the landlord. In view of that the plaintiff was afraid that the landlords who had cause to be inimical to him would not recognise the transfer by the plaintiff's vendors. It is argued by Mr. Moinul Haq that there should be no question of landlords recognition of the tranfer by Kunja Behari Das in favour of the plaintiffs- vendors in view of the fact that the amendment of the Bengal Tenancy Act of 1928 was in force at the time of the kabala executed by Kunja Behari Das. But the kabala by Kunja Behari Das was executed on 8-1-29 and was registered on 23-t-1929 and the amendment of the Bengal Tenancy Act came into force on 1st April 1929. Therefore, the landlords would have been within their rights not to recognise the transfer by Kunja Behari Das in favour of the plaintiff's vendors. Therefore in our opinion, there was reason for the plaintiff to apprehend that the landlords would create difficulties in recognising the transfer in favour of the plaintiff and it would be a valid reason for taking oat the kabala in the name of defendant No. 1. It is true that defendant No. 1 was the Karmachari of the plaintiff but on the defendant's own case he had resigned in 1945, and was appointed Head Master of the Village School. The plaintiff has stated in paragraph 9 of the amended plaint "the plaintiff took possession of the land of Jagat Kishore Chand. Due to the increase of the area of the land and also the number of litigation the defendant No. 1 went on working under the plaintiff and his wife on a monthly pay of Rs.
25. This statement is corroborated by the other evidence on record and the conduct of the defendant No. 1 himself after his alleged resignation in 1945. But this was a private arrangement and it is clear that the landlords would not be aware that the defendant No. 1 was continuing only as a part time officer of the plaintiff. In these circumstances it is quite reasonable for the plaintiff to think that the landlords would recognise the transfer in favour of defendant No. 1.
28. Considering the entire evidence on record we come to the irresistible conclusion that the defendant No. 1 was merely the Benamidar of the plaintiff with respect to the disputed kabala Exh. A and it was the plaintiff who purchased the disputed land covered by the kabala Exh. A with his own money in the name of defendant No. 1.
29. We, therefore, allow the appeal with costs and set aside the judgment and decree of the trial Court and declare that the plaintiff acquired the land in the suit in the benami of defendant No. 1 and the plaintiff's title in the disputed land is declared and we order that the plaintiff be put into khash possession of the disputed land after evicting the defendant No. 1 by demolishing the huts of defendant No. 1 on the suit land.
30. MURSHED, C. J.---I agree. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.