HONOURABLE MR. JUSTICE v. NATH ORAL JUDGMENT Date
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA First Appeal No.75 of 1985 =========================================================== 1. Brij Mohan Sharma son of Ram Sewak Singh resident of village-Madhukarpur Tineri Pargana Sanda, P.S. Masaurhi, District-Patna. 2. Savitri Devi wife of late Rajeshwar Sharma. 3. Jitendra Kumar 4. Rajnikant. 5. Ritesh Kumar. 6. Satendra Kumar, all are sons of late Rajeshwar Sharma, resident of village- Madhukarpur Tineri, P.S. Masaurhi, District-Patna. .... .... Appellant/s Versus 1. Smt.Sunaina Kumari wife of Shri Abhai Kumar Singh alias Buli Singh resident of village Tineri P.S. Masaurhi, District-Patna. 2. Smt. Pushpa Singh wife of Shri Kiran Kumar Singh (alive) resident of village Begusarai, P.S. Begusarai, District-Begusarai. 3. Abhany Kumar. 4. Uday Kumar. 5. Ashok Kumar, sons of late Rishikesh Narayan Singh all are residing at village- Teneri, P.S. Masaurhi, District-Patna. 6. Smt. Indrapari Devi wife of late Tripti Narayan Singh resident of village – Tineri, Masaurhi, District-Patna. 7. Most. Anup Kuer widow of late Sri Raj Kumar Singh(dead). 8. Sri Ram Kishore Singh son of Sri Raj Kumar Singh resident of village Koeli P.s. Makhdumpur District- Gaya. 9. Smt. Janak Dulari Devi wife of Shri Hardeo Singh daughter of Ram Sewak Singh resident of village-Sonaut Lodipur P.s. Manpur District-Gaya. 10. Ram Kishore Singh son of Ram Janam Singh (alive) and daughter’s son of Sonful Kuer resident of village Sewati Makhdumpur, Gaya. 11. Most. Baidehi Devi widow of Charitar Singh deceased of village Tineri Pargana Sanda P.S. Masaurhi, District-Patna. 12. Smt. Ramdulari Devi alias Dularmani Devi wife of Shri Shyam Nandan Singh (alive) daughter of Charitar Singh (deceased) of village Mataurha P.S. Masaurhi, District-Patna. 13. Bahan Singh, son of Devi Singh (dead) resident of village Tineri Pargana Sanda, P.S. Masaurhi, District-Patna. .... .... Respondent/s =========================================================== Appearance : For the Appellant/s : Mr. A.K.Roy Patna High Court FA No.75 of 1985 dt.13-11-2013 2 Mr. Swapna Sarkar Mr. Nawal Kishore Sharma Mr. Ramanugrah Prasad Singh For the Respondent/s : Mr. =========================================================== CORAM: HONOURABLE MR. JUSTICE V. NATH ORAL JUDGMENT Date: 13-11-2013 Taking exceptions to the judgment and decree dated 30.11.1984 passed in T.S. No. 44/3 of 1973/84 by Additional Sub Judge-VII, Patna, the defendant 2nd set in the suit has preferred this appeal. The suit has been filed by the plaintiffs for declaration of their title and confirmation of possession and in the alternative for recovery of possession over the suit land described in schedule-II of the plaint after adjudication that Smt. Dev Rani Kuer was only a Benamidar of her son Sadhu Saran Singh with respect to the properties conveyed by sale deed dated 08.04.1919 executed by Bal Govind Singh and the sale deed dated 01.07.1937 executed by Bilat Singh. The genealogy of the family of Smt. Dev Rani Kuer and his son Sadhu Saran Singh is not in dispute according to which Smt. Dev Rani Kuer was the widow of Laxmi Narain Singh who died in the year 1910 and they had a son Sadhu Saran Singh and a daughter Phul Kuer. Sadhu Saran Singh died in the year 1939 and his widow Phul
Facts
Mati Kuer is plaintiff no. 3 in the suit. Sadhu Saran Singh and Phul
Legal Reasoning
been considered and enumerated in a bench Decision of this Court in Satyadeo Pd. Vs. Smt. Chanderjoti, A.I.R. 1966 Pat. 110 and it has been laid down as follows:- “………….The tests to be applied to find out a Patna High Court FA No.75 of 1985 dt.13-11-2013 12 benami transaction are fully establish by judicial decision to be – (i) motive for the benami transaction, (ii) relationship between the parties, (iii) possession of the property in question (iv) custody of the title deeds and (v) which is most important, the payment of the consideration money………….It is too well kown that benami transactions are entered into India without any motive or reason. In Sahdeo Karan Singh Vs. Usman Alikhan, A.I.R. 1939 Pat. 462, a Bench of this Court has held that experience has shown that frequently benami transactions are entered into in this country for no apparent reason. Therefore, absence of motive cannot be taken to be a circumstance against the benami character of a transaction……” The plaintiffs’ case of benami is now to be tested in view of the above mentioned parameters. It is admitted position that Sadhu Saran Singh was the only son of Deo Rani Kuer who was the second wife of Laxmi Narayan Singh who died in the year 1910. The plaintiffs have come out with the case that Sadhu Saran Singh purchased the properties including the suit land in the name of his mother Deo Rani Kuer to provide her solace as she had no property of her own and was only a maintenance holder. It is not the case of the Patna High Court FA No.75 of 1985 dt.13-11-2013 13 defendants that Sadhu Saran Singh had bitter relationship with his mother Deo Rani Kuer. Therefore, in view of the principles enunciated in the aforesaid decision, the circumstances leading to purchase of the suit land in the name of his mother Deo Rani Kuer by Sadhu Saran Singh cannot be ruled out. However, the most important aspect is as to who paid the consideration money. It is the case of the plaintiffs that Deo Rani Kuer belonged to a poor family before her marriage and she was married with Laxmi Narayan Singh during the life time of his first wife only for the purpose of offspring. The contesting defendants on the other hand have asserted that Deo Rani Kuer belonged to a well to do family before her marriage and she had her own independent funds as she received money from her brother and had also income from money lending business and from sale and purchase of food grains. No documentary evidence however, has been adduced on behalf of the contesting defendants to establish the quantum of property in the ‘Naiher’ of Deo Rani Kuer or in support of the fact that she had the money lending business or income from other sources. There is also no evidence on behalf of the defendants that brother of Deo Rani Kuer sold his ancestral properties, gave money to Deo Rani Kuer and permanently shifted to live with her. The testimonies of D.W. 6, D.W. 18 and D.W. 20 examined on behalf of the contesting defendants on this point have been disbelieved by the learned court below. The Patna High Court FA No.75 of 1985 dt.13-11-2013 14 depositions of these witnesses have also been placed before this court on behalf of the appellants but nothing could be pointed out to show that the conclusion drawn by the learned court below in this regard is unreasonable in any manner. Even otherwise also it becomes apparent that these witnesses have failed to display their knowledge regarding the properties in the ‘Naiher’ of Deo Rani Kuer or the sale of those properties by Shayam Lal Singh, the brother of Deo Rani Kuer. It would be pertinent to point out here that the defendant 1st set who are the relatives of Deo Rani Kuer have not been examined as witnesses in the suit and even have not come to contest the suit. There is thus no cogent evidence on behalf of the contesting defendants that Deo Rani Kuer had sufficient means and funds to acquire the suit properties and it is hard to believe that she in fact paid the consideration money for acquiring the properties through the sale deeds (Ext. E and E/2). Admittedly, Sadhu Saran Singh was the only son of Laxmi Narayan Singh and had inherited his entire properties. Even the witnesses of the defendants (D.W. 6, D.W. 9, D.W. 11, and D.W. 18) in their depositions have accepted that Sadhu Saran Singh was a man of means and had about 50 bighas of cultivable land. The plaintiffs’ witnesses have also supported the said fact. The documentary evidence adduced on behalf of the plaintiffs also suggest that Sadhu Saran Singh had sufficient means to acquire properties. Much stress has been led by the learned counsel on behalf Patna High Court FA No.75 of 1985 dt.13-11-2013 15 of the appellants on the fact that the mortgage dues on the property subject matter of the sale deed (Ext. E and E/2) had in fact been paid by Deo Rani Kuer to Sadhu Saran Singh who was the mortgagee. The reliance has been placed on the endorsement notes on the mortgage deeds (Ext. R, R-1 and R-2) in this regard. The mortgage deed (Ext. R) is for Rs. 125/- and the mortgagee was Sadhu Saran Singh. This mortgage deed bears the receipt said to have been in the pen of Sadhu Saran Singh regarding receipt of mortgage money from the purchaser Deo Rani Kuer. Other two mortgage deeds (Ext. R/1 and R/2) also bear the receipt on the back of the deeds showing that the mortgage money had been paid by Deo Rani Kuer. However, these exhibits showing payment of mortgage money by Deo Rani Kuer appears to be normal in view of the fact that the purchases of the properties with mortgage dues upon the same were made in the name of Deo Rani Kuer. In absence of evidence that Deo Rani Kuer had the means to pay the amount, these receipts per se cannot establish the said fact. Moreover, the endorsement/receipt by Sadhu Saran Singh on the back of Ext. R, which has been much highlighted, in fact has been challenged by the plaintiffs to be not in his pen. The handwriting experts examined on behalf of the parties have given contrary reports. Faced with this situation, the learned court below himself examined the disputed handwriting with the admitted handwriting of Sadhu Saran Singh and has reached to the conclusion that the handwriting on Patna High Court FA No.75 of 1985 dt.13-11-2013 16 the back of the mortgage deed (Ext. R) is not the handwriting of Sadhu Saran Singh. The report of the expert (Ext. 18 and 18/A) adduced on behalf of the plaintiffs and the report of the expert (Ext. P) adduced on behalf of the defendants are contrary to each other containing their own reasonings. However, from the perusal of the two writings, the marked differences are evident and the report (Ext. 18 and 18/A) of the expert on behalf of the plaintiffs appears to be more convincing. The learned court below has also found the differences in the two handwritings and has discussed the same in the judgment. No cogent reason could be furnished on behalf of the appellants explaining away the differences in the writings. Coupled with this is the fact that Sadhu Saran Singh was the only son of Deo Rani Kuer and there is no allegation of soured relationship between them. Therefore, it appears improbable that he would have received money from her widow mother who would have in turn also obtained a receipt from her son. The preponderance of probability has thus rightly been found to be in favour of the plaintiffs and it has been rightly held by the trial court that the endorsements/ receipts on the back of the mortgage deeds will not be of advantage to the defendants. It has been next argued by the learned counsel for the appellants that all the relevant documents relating to the title over the suit land including the two sale deeds (Ext. E and E/2) have been produced by the defendants in the suit and it is a very strong Patna High Court FA No.75 of 1985 dt.13-11-2013 17 circumstance to show that the two transactions were not benami as claimed by the plaintiffs. However, it is the case of the plaintiffs that Shiv Raj Singh who was husband of Phul Kuer and brother-in-law of Sadhu Saran Singh used to look after the affairs relating to the properties of Sadhu Saran Singh during his life time and even after the death of Sadhu Saran Singh the plaintiff no. 3 Phul Mati Kuer being illiterate rustic lady continued to rely on him for the management of her affairs as well as the various litigations with regard to her properties. The fact that Shiv Raj Singh used to look after the properties of Sadhu Saran Singh and Phul Mati Kuer is amply corroborated by various documentary evidence adduced on behalf of the plaintiffs. Ext. 9 series are the land revenue challans showing payment of land revenue of different Tauzis including the Tauzi no. 1508. These land revenue challans with regard to Tauzi No. 1508 also show that they had been issued in the name of Deo Rani Kuer for the period between 1941-56, even when she admittedly died in the year 1940 and all these payments had been made through Shiv Raj Singh. The plaintiffs have also brought the petition, objection and other documents relating to Bakast case no. 08 of 1948-49 out of which the petition filed in the said case on 20.07.1948 is Ext. 7 and bears the L.T.I. of Phul Mati Kuer with execution portion written by Shiv Raj Singh. The Ext. 6 (the Vakalatnama filed in that case on behalf of Phul Mati Kuer) shows that it was filed by Shiv Raj Singh. There is Patna High Court FA No.75 of 1985 dt.13-11-2013 18 also statement in Ext. 7 that Phul Mati Kuer got the disputed lands cultivated through Shiv Raj Singh who was her brother-in-law. This Bakast case also related to plot nos. 903 and 904 which are also the suit land. Ext. 24 is the decision by the Bakast Dispute Arbitration Board in Bakast Dispute Case No. 91 of 1948-49 which was initiated against Most. Phul Mati Kuer and in this decision also the fact has been mentioned that Shiv Raj Singh was the relative of Phul Mati Kuer and he looked after her affairs after the death of her husband and her lands were also cultivated through Shiv Raj Singh. From these documentary evidence, the facts are vivid that the plaintiff no. 3 had been sued in various litigations for her lands which also included part of the suit lands and those litigations were pursued on her behalf by Shiv Raj Singh who had asserted her possession over the lands in dispute on her behalf. Further Ext. 20/A (order sheet of case no. 419/C/51/T of 1940) and Ext. 21 (report of the police) also disclose that Shiv Raj Singh had filed the criminal case against Kamta Singh on behalf of the plaintiff no. 3 Phul Mati Kuer. It is also apparent that the deeds relating to title over the suit land and other lands in dispute in those cases had been produced in those cases on behalf of the plaintiff no. 3 Phul Mati Kuer. Obviously enough Shiv Raj Singh who was looking after those litigations on behalf of Phul Mati Kuer had the control over those documents. Further the deposition of the defendant no. 10 in 145 Cr.P.C. proceeding has been brought on Patna High Court FA No.75 of 1985 dt.13-11-2013 19 record on behalf of the plaintiffs as Ext. 32 wherein he had accepted that Shiv Raj Singh and Raj Kumar Singh looked after the management of Phul Mati Kuer. These facts and circumstances unmistakably lead to the inference that Shiv Raj Singh and Raj Kumar Singh had the access to the documents relating to the lands of the plaintiff no. 3 who being an illiterate lady used to place reliance on them. The explanation furnished on behalf of the plaintiffs for the production of relevant documents by the defendants thus appears to be more plausible and makes it difficult to accept the version of the defendants that those documents were with the Shiv Raj Singh and Raj Kumar Singh as title holder in usual manner as Phul Kuer wife of Shiv Raj Singh and mother of Raj Kumar Singh had inherited the suit properties as legal heir of Deo Rani Kuer. Scrutiny of the aforesaid documentary evidence on behalf of the plaintiffs also militates against the case of the defendants that the plaintiff no. 3 Phul Mati Kuer never became entitled to the properties in the name of Deo Rani Kuer rather those properties devolved upon Phul Kuer wife of Shiv Raj Singh. If that was the real fact there was no reason for Shiv Raj Singh to fight out the litigation on behalf of the plaintiff no. 3 Phul Mati Kuer for the lands which also included some of the suit plots wherein he affirmed and asserted title and possession of Phul Mati Kuer over those lands. If Phul Kuer wife of Shiv Raj Singh had inherited the property of Deo Rani Kuer Patna High Court FA No.75 of 1985 dt.13-11-2013 20 after her death in the year 1940, there was no reason as to why the land revenue was paid in the name of Deo Rani Kuer by Shiv Raj Singh and the receipts handed over to the plaintiff no. 3 on whose behalf the same have been produced as evidence in this suit. The learned court below has meticulously analyzed the evidence in this regard and has rightly probablized that Shiv Raj Singh and his son had surreptitiously taken away those documents which were with the plaintiff no. 3 taking benefit of her faith in them. The submission on behalf of the appellants that the contesting defendants after purchase and prior to that their vendors have been in possession over the suit land also does not find support from the evidence on record as discussed earlier. The Bakast case no. 08 of 1948-49 had been filed against the plaintiff no. 3 Phul Mati Kuer and the objection petition (Ext. 7) filed on behalf of her in that case shows that her possession with regard to the lands in dispute which were of Tauzi no. 1508 had been asserted and defended by Shiv Raj Singh who was husband of Phul Kuer through whom these defendants have claimed their title. The land revenue challans (Ext. 9 series) of Tauzi No. 1508 had been produced by the plaintiff no. 3 Phul Mati Kuer in the suit. There is no explanation on behalf of the defendants as to how these challans have been produced by the plaintiff no. 3 when according to their case, these should have been with them or their vendors. Further Ext. 23/B and 23/C are the notices Patna High Court FA No.75 of 1985 dt.13-11-2013 21 along with the schedules of land attached therewith issued by the land ceiling authority in the name of plaintiff no. 3 Phul Mati Kuer with regard to the lands which also included the suit lands. The gift deeds executed by the plaintiff no. 3 in the year 1972 (Ext. 8) in favour of plaintiff no. 1 and 2 are also prior to the sale deeds executed in the year 1973 for the suit lands by the defendant 1st set in favour of defendant 2nd set. This gift deed at least shows that the plaintiff no. 3 had been dealing with the suit land as her own land. On behalf of the defendants rent receipts (Ext. A series) have been produced in support of their case. However, Ext. A/8 shows that the rent had been paid by Phul Mati Kuer. Further, the examination of the rent receipts Ext. 19/B and 19/C with Ext. A/4 also discloses that these exhibits must have been together in one bunch as all these three receipts had been torn/ mutilated in the middle in the same manner and fashion. Moreover, on the back of Ext. A/3 the accounting had been done of the amount which appears to be the amount in the rent receipt (Ext. 19 and 19A). All these receipts bear the name of Shiv Raj Singh as the person who made the payment. These circumstances only strengthen the case of the plaintiffs that these documents were with the plaintiff no. 3 but had been deceitfully removed later on by Shiv Raj Singh and Raj Kumar Singh. The production of these receipts by the defendants is thus surrounded by suspicion and cannot be sufficient to outweigh the inference flowing from the documentary evidence led on behalf of Patna High Court FA No.75 of 1985 dt.13-11-2013 22 the plaintiffs. The testimonies of the witnesses examined on behalf of the defendants in support of their claim also do not inspire confidence as almost all the witnesses have stated about the possession of Shiv Raj Singh over the suit land. As discussed earlier, Shiv Raj Singh had been managing the affairs of the plaintiff no. 3 with regard to the suit land and had also been getting her lands cultivated. There is nothing in the testimonies to show that Shiv Raj Singh was in possession over those lands in his independent capacity as title holder. The learned court below after scrutiny has refused to rely upon the testimonies of these witnesses and no substantial reason has been shown on behalf of the appellants to take a different view on the basis of the oral evidence. On the other hand, the witnesses examined on behalf of the plaintiffs have in their depositions supported the possession of the plaintiffs over the suit land which is also corroborated by the documentary evidence as discussed above. The learned court below therefore, has rightly come to the conclusion that the plaintiffs are in possession over the suit land. The non-examination of the plaintiff no. 3 loses its relevance in view of the material oral and documentary evidence adduced by the plaintiffs in support of this case. For the aforesaid premised reasons and discussions, I find and hold that the plaintiffs have succeeded in establishing that Sadhu Saran Singh had purchased the properties through sale deed (Ext. E and E/2) in the benami name of his mother Deo Rani Kuer and he was the real owner in possession of the properties subject matter of Patna High Court FA No.75 of 1985 dt.13-11-2013 23 those sale deeds. It is further held that after the death of Sadhu Saran Singh, the plaintiff no. 3 acquired by inheritance title and possession over all his properties including the suit land as his widow and the plaintiff no. 1 and 2 have acquired valid title and possession over the suit land on the basis of the registered gift deed dated 04.05.1972 executed by the plaintiff no. 3 in their favour. I also find and hold that the learned court below has committed no illegality in passing the impugned judgment and decree. Accordingly, this appeal is dismissed and the impugned judgment and decree passed by the learned court below is upheld. The T.S. Nos. 44/03 of 1973/84 stands decreed. Devendra/- (V. Nath, J)
Arguments
Mati Kuer had a daughter Smt. Sugapati Devi and she had three sons namely Abhay Kumar Singh, Uday Kumar Singh and Ashok Kumar Patna High Court FA No.75 of 1985 dt.13-11-2013 3 Singh and a daughter Puspa Sinha. Smt. Sunaina Kumari is wife of Abhay Kumar Singh and is plaintiff no. 1 in the suit and Puspa Sinha is plaintiff no. 2 in the suit. Phul Kuer, the daughter of Laxmi Narain Singh and Smt. Dev Rani Kuer was married with Shiv Raj Singh and she had a son namely Raj Kumar Singh who died leaving behind two widows namely Most. Anupa Kunwar and Most. Ram Dulari Kuer who have been impleaded as defendant no. 1 and 2 in the suit and Ram Kishore Singh, son of Raj Kumar Singh has been impleaded as defendant no. 3 in the suit. All these three defendants have been arrayed as defendant 1st party. The defendant nos. 4 to 11 arrayed as defendant 2nd party are transferees of the suit land from the defendant 1st party. The suit land is 5.28 ½ acres of land described in schedule-A of the plaint. The relevant case of the plaintiffs is that the family of Laxmi Narain Singh and Sadhu Saran Singh was a well to do family having substantial property which generated sufficient savings and income. Dev Rani Kuer the second wife of Laxmi Narain Singh belonged to a poor family and was married with Laxmi Narain Singh for the sake of offspring as he had no issues from his previous marriage, and a son Sadhu Saran Singh and a daughter Phul Kuer were born from this wedlock. It is the case of the plaintiffs that Dev Rani Kuer as widow of Laxmi Narain Singh was only entitled to Patna High Court FA No.75 of 1985 dt.13-11-2013 4 maintenance and had no property or fund of her own or any source of income. Her son Sadhu Saran Singh therefore purchased 6 anna 8 pie share in Tauzi No. 1508 in village Mobarakpur Basaur and Chak Basaur P.S. Masaurhi District-Patna in her name by registered sale deed dated 09.04.1919 for the sake of her consolation and regard for her. Sadhu Saran Singh again purchased 3 anna 4 pie share in the said Tauzi No. 1508 in the farzi name of his mother Dev Rani Kunwar. The plaintiffs have stated that the consideration money of the two sale deeds were paid by Sadhu Saran Singh and he remained in possession over the milkiyat interests as purchased. It is further case of the plaintiffs that Sadhu Saran Singh died in the year 1939 leaving behind about 50 acres of land besides income from tenants and during his life time he used to take help and assistance from Shiv Raj Singh who was his brother-in-law being husband of his sister Phul Kuer in management of his share and properties. The plaintiffs have asserted that the plaintiff no. 3 Phul Mati Kuer widow of Sadhu Saran Singh also entrusted the management of the properties along with the document of title etc. to Shiv Raj Singh who looked after all the affairs and litigations on behalf of Phul Mati Kuer as there was no other person to look after her properties. The plaintiffs have claimed that Shiv Raj Singh got the name of the plaintiff Phul Mati Kuer mutated in the land registration department after the death of Sadhu Saran Singh. It is further case of the plaintiffs that Sadhu Saran Singh Patna High Court FA No.75 of 1985 dt.13-11-2013 5 had 5.28½ acres of Bakast land in Tauzi No. 1508 directly under his cultivation and after his death Phul Mati Kuer inherited that property also as his widow and came in cultivating possession of the same. It is further case of the plaintiffs that all the milkiyat interests in several Taugis including Tauzi No. 1508 vested in the State of Bihar and the Bakast lands of all the Tauzis including the Tauzi No. 1508 became the statutory raiyati land of the plaintiff no. 3 Phul Mati Kuer. Shiv Raj Singh being in-charge of the management of all the affairs of Phul Mati Kuer also took steps for fixation of rent for those lands in favour of the plaintiff no. 3 Phul Mati Kuer. The plaintiffs have also stated that Shiv Raj Singh had full access to all the papers and documents of the family and during his life time his son Raj Kumar Singh also along with his father used to have access to the papers and documents of the plaintiff Phul Mati Kuer who was an illiterate lady. The case of the plaintiffs is that Shiv Raj Singh died in the year 1965, his wife having predeceased him, and his son Raj Kumar Singh also died in the year 1971 and in their life time Phul Kuer or her husband Shiv Raj Singh or their son Raj Kumar Singh or the two widows of Raj Kumar Singh had or have never been in possession of any land of Tauzi No. 1508 or the suit lands. It is the case of the plaintiffs that the plaintiff no. 3 gifted some of her properties by gift deed dated 29.10.1967 to her maternal grand sons Abhay Kumar Singh, Uday Kumar Singh and Ashok Kumar by executing registered gift deed in their favour and Patna High Court FA No.75 of 1985 dt.13-11-2013 6 later on she executed a registered gift deed dated 04.05.1972 with regard to her remaining properties including the suit land in favour of the plaintiff nos. 1 and 2 whereby two shares have been given to the plaintiff no. 1 and one share to the plaintiff no. 2 in the gifted property. The plaintiffs have further alleged that Shiv Raj Singh and his son Raj Kumar Singh taking undue advantage of their position and confidence placed in them by the plaintiff no. 3 got the rent of the suit land fixed in the name of Raj Kumar Singh and it has also been discovered that the original title deeds of the suit properties and other relevant papers had been missing from the custody of the plaintiff no. 3. The plaintiffs have alleged malafide intention of Shiv Raj Singh and Raj Kumar Singh and have further alleged that Lal Mani Singh the son-in-law of Phul Kuer and Shiv Raj Singh who is a litigant person have brought into existence a sale deed dated 22.01.1973 in respect of the suit lands purporting to have been executed by two widows of Raj Kumar Singh in favour of the defendant 2nd set. It is further alleged that the defendant 2nd party purchasers are also hardened litigants and have obtained the sale deed with malafide intention to grab the suit land. The plaintiffs have claimed that the defendant 1st set have no title and possession over the suit land and the defendant 2nd set have also not acquired title and possession over the suit property on the basis of their purchase from the defendant 1st set. Patna High Court FA No.75 of 1985 dt.13-11-2013 7 The defendant nos. 1, 2 and 3 have filed their joint written statement but have not contested the suit which in fact has been contested by the defendant 2nd set who have also filed their separate joint written statement. It is the case of the contesting defendants that Dev Rani Kuer purchased the suit land out of her own funds and she was the real owner of the suit lands which was her stridhan property. It is further case of the defendants that after the death of Dev Rani Kuer, her daughter Phul Kuer being her sole heir inherited the suit land and these defendants have acquired valid title and possession over the suit land on the basis of purchase from the heirs of Phul Kuer. The defendants have also asserted that Dev Rani Kuer had sufficient funds from her Naiher and she had also income from business and the suit land had been acquired by her out of her own funds and she continued in exclusive possession of the suit land during her life time. These defendants therefore have claimed themselves to be bonafide purchasers of the suit land. It is also the case of these defendants that the rent has correctly been fixed in the name of Raj Kumar Singh and there was no fraud as alleged by the plaintiffs. By filing additional written statement these defendants have further claimed to have acquired title over the suit land by adverse possession also. In view of the rival pleadings of the parties, the learned court below has framed altogether 9 issues out of which issue no. 5 Patna High Court FA No.75 of 1985 dt.13-11-2013 8 has been decided as material issue and is as follows:- Issue no. 5:- Was Dev Rani Kuer Benamidar of Sadhu Saran Singh? After hearing the parties and scrutinizing the evidence led on their behalf, the learned court below has come to the finding that Dev Rani Kuer was a Benamidar of her sole son Sadhu Saran Singh in respect of the properties acquired by sale deeds (Ext. E and E/2). The learned court below has further also held that the contesting defendants could not establish their title and possession over the suit lands by adverse possession also. The suit has accordingly been dismissed by the impugned judgment and decree declaring the title and confirming the possession of the plaintiffs over the suit land. The learned counsel for the appellants has appeared and has been heard on the merits of the appeal. No body has appeared on behalf of the respondents at the time of hearing of this appeal. The learned counsel for the appellants has submitted that the impugned judgment and decree cannot be sustained as the learned court below has ignored the material evidence on record and the findings therefore are perverse. It has been urged that the plaintiff no. 3 Phul Mati Kuer who has claimed the suit land by inheritance from Sadhu Saran Singh has not been examined in the suit and therefore adverse inference must have been drawn against the plaintiffs. It has been further submitted that admittedly the milkiyat interests in Tauzi Patna High Court FA No.75 of 1985 dt.13-11-2013 9 No. 1508, where the suit land was situate, had been acquired in the name of Deo Rani Kuer by purchase through sale deeds and in auction sale and there is no evidence that the name of Sadhu Saran Singh appeared anywhere and therefore the inevitable conclusion would be that the suit land was the exclusive property of Deo Rani Kuer and after her death the same devolved upon her daughter who was then her sole surviving heir. The learned counsel has placed reliance on the two sale deeds in the name of Deo Rani Kuer through which the properties in dispute had been purchased to show that even Sadhu Saran Singh who was mortgagee of a part of the sold property had granted receipt after receiving money from Deo Rani Kuer for redemption. It has also been propounded that the name of the plaintiff no. 3 Phul Mati Kuer had not been entered in the relevant revenue records rather the name of the descendants of Phul Kuer had been entered and there is no cogent explanation on behalf of the plaintiffs in this regard. Thus, the main thrust of the submission of the learned counsel on behalf of the appellants is on the mis-appreciation of the evidence by the learned court below. In view of the contentions raised on behalf of the appellants the following points emerge for determination in this appeal:- (i) Whether the suit land had been purchased by Sadhu Saran Singh in the benami name of her mother Deo Rani Kuer Patna High Court FA No.75 of 1985 dt.13-11-2013 10 or had been acquired by Deo Rani Kuer out of her own funds and thus was her stridhan property? (ii) Whether the findings recorded by the learned court below are on the basis of correct scrutiny of evidence and in accordance with principle of law? For convenience both the points are taken up together for determination. The genealogy of the family of Laxmi Narain Singh is not in dispute and therefore Sadhu Saran Singh was admittedly the only son of Deo Rani Kuer, and Phul Kuer was her only daughter. The suit land area 5.28½ acres in different plots mentioned in the schedule of the plaint had also been admittedly acquired in the name of Deo Rani Kuer. The plaintiff no. 3 Phul Mati Kuer is admittedly the widow of Sadhu Saran Singh and has claimed her exclusive right over the suit land by inheritance after the death of Sadhu Saran Singh on the assertion that Sadhu Saran Singh was the real owner of the suit land and his mother Deo Rani Kuer was only a benamidar for him. The contesting defendants however have claimed that the suit land was the exclusive property of Deo Rani Kuer who acquired the same out of her own funds and after her death it had devolved by inheritance on her only surviving heir Phul Kuer who was her daughter and the heirs of Phul Kuer have validly transferred right, title and possession to the contesting defendants by sale. Patna High Court FA No.75 of 1985 dt.13-11-2013 11 The practice of acquiring property in name of person other than the real owner had been prevalent in India and has also been judicially recognized. However, in view of the principle that apparent state of affairs must be taken to be the real state of affairs unless the contrary is proved, it has been well established by judicial pronouncements that the burden to prove a transaction to be benami is on the person who comes before the court alleging the said fact. This principle has been succinctly explained by the Apex Court in the case of Shib Kumari Devi Vs. Jagdish Pd. Singh, 1962 BLJR 314 (S.C) that the burden of proof, to begin with, is on the party pleading that the transaction is Benami and it increases if the original parties to the transactions are dead but if the evidence on the other side does not exist, even slight but forceful evidence on the part of the party alleging the benami nature of transaction may be sufficient. Their Lordships have also pointed out relevant circumstances to be examined in this regard like the source of consideration for acquisition of the property, the custody of the title deeds, the possession of the property, the conduct of the parties etc. The tests to be applied in a controversy relating to a benami transaction have also