Jagmohandas vs Kishen and Others

Kumarayya, J.—This second appeal arises out of a suit for possession brought by Kishen, Respondent No. 1, alter ho was dispossessed by the Appellant, Jag-mohandas, Defendant No. 1.

Plaintiffs case was that ho together with two other persons viz., Ram S/o Maruti and Ram S/o Srirang, purchased a land for a sum of Rs. 800 from Zainab Bi and on one of the plot. made thereupon by the Municipality constructed the suit malgi after due sanction from the Municipality with his own money in the same way as, the two other purchasers had constructed their own; that the Defendants Nos. 2 and 3 are his maternal uncles by distant relationship and as such they looted after the construction while, in progress; that the Defendant No. 2 had no right, or interest in the land and malgi and yet he executed a sale-deed, in favour of Defendant No. 1 in the year 1350-F., and that the latter in guise of his authority dispossessed him of the suit malgi.

Appellant, Jagmohandas in his writers statement denied the title and possession of the Plaintiff and averred that the Defendant No. 2 was the owner and was competent to effect sale and that he himself had constructed the suit malgi at a cost of Rs. 3,000. The Defendant No. 2 supported his cause while the Defendant No. 3, the brother of Defendant No. 2 admitted the claim of the Plaintiff.

Though no plea of benami was specifically raised in the pleadings, it was sought to be established by evidence that Defendant No. 2, the brother of Defendant No. 3, as the karta of the joint family purchased the suit land with his money and raised some structure thereon and after it fell to his share in family partition, he disposed of the same to Defendant No. 1, who completed the construction of the malgi. Thus, it was contended that the purchase of the land in the name of the Plaintiff was a mere benami and the entire proceedings in the municipality in the name of the Plaintiff was a necessary consequence thereof and that these acts could not vest in the Plaintiff any right to the property.

The Court of first instance accepted this Plea and as the title deed, which formed the basis of the suit was also unregistered, held that the Plaintiff was neither the owner nor possessor of the property. The Court of first appeal took a different view on the evidence adduced and decreed the claim of the Plaintiff holding that he was the owner and in possession of the property before the alleged dispossession.

Out of the facts of the case, the emerge two important points which require (sic) consideration. The first point is whether the Plaintiff was a mere benamldar and secondly, whether his suit for possession is liable to be dismissed for want of a registered sale-deed.

It is not disputed that the land originally belonged to Zainata Bi, who in lieu of Rs. 800 paid to her, offered to sell under an agreement duly executed by her in favour of the Plaintiff and two other persons named above and parted with the possession of the land. The Defendant Nos. 1 and 3 appear to treat this transaction as benami not in its entirety but only so far as the Plaintiff is concerned. Evidently, be. naml cannot be a matter of mere presumption. It should be averred in the pleadings before it allowed to be proved (See Haji Mohd, Ismall Charlapalli Sami 11 DLK. 49 (A).

The onus lies heavily on the person, who leges that the person who appears as the owner the face of the deed is not the real owner is burden is not discharged by merely showing constancies which may throw doubt on the of the story of the apparent owner but by strict proof of title of the person claiming the real owner. The proof of benami, therefore, must rest not only on the relevant circumcise but also on direct proof. In the absence convincing direct proof the circumstantial dance may clinch the issue.

The Courts, therefore, rely on circumstances as the position of the parties and their real to one Anr. , the motive which could go their action, source of purchase'' money, (sic) of the title deeds, possession of the property subsequent conduct of the parties. In the (sic) of all other relevant circumstances as (sic) by Lord Campbell in Uttam Das Pandey Mst. Shamasunder Dibiah, the criterion in the (sic) of benami in India is "to consider from (sic) source the money comes with which, the chase money is paid."

(7a) After giving careful consideration to the (sic) on record, we are clearly of the view the Defendants have failed to establish the that they have so strenuously advanced.

It has been observed by this Court in (sic) cases that benami purchases and sales in (sic) State are not made without sufficient cause. (sic) are always made with some motive and set whose and unless such purpose is apparent from record, the transaction even in the name of child or the wife cannot be presumed to be Smt. Gousia Begum v. Mohd. Gaziuddin ILR Hyd 282 : AIR 1950 Hyd 52 (B).

It is said that the Defendant No. 2, being Pleader of Zainab Bi, could not lawfully purpose in his own name any portion of the suit and so he purchased it in the name of the Plaintiff. The material on record does not hear the contention that Defendant No. 2 could without infringing the rules of conduct purpose this land himself. The statement of Syed (sic) who is said to have worked as his (sic) for some time, in this regard is neither (sic) nor convincing.

One would do well to bear in mind that Plaintiff is not so closely related to Defendant 2 as Ram S/o Maruti, whose name also as haser appears in the deed. It is even said formerly some other property was purchased in his (Ram''s) name by Defendant No. 2 purchase to any extent was intended effected benami in this case, it does not why to that extent it was not effected name of Ram himself. There appears to reason why Defendant No. 2 chose to preferant relation on whose loyalty he cannot depend.

That apart, the fact that the title deed diced from the custody of the Plaintiff is (sic) a circumstance which is inconsistent (sic) title or right of the Defendant.

12 & 13. The direct evidence on record as a of fact, clearly shows that the Plaintiff had entered into the sale transaction with Bi and had paid his purchase money to Mehtab Saheb, the husband of Zainab Bi, testimony is entitled to great weight, has (sic) that Kishen personally entered into the transaction with Zainab Bi, paid Rs. 100 by way of earnest money, took possession of the land and two years thereafter a further sum was paid and the agreement of sale was executed and subsequently the balance was also paid.

He has said explicitly that Defendant No. 2 was not present at any stage of negotiations of purchase or payment of money and that Kishen, the Plaintiff, constructed the malgi under the supervision of Ranganath Rao, but, that there was some quarrel between the Plaintiff and Defendant No. 1, who came in possession of the malgi thereafter.

(His Lordship then considered theevidence and weighed the probabilities and concluded (1) that the story of the Plaintiff that he paid his purchase money, took possession and constructed the malgi is well borne out by the persons, who had sources of knowledge, Makawar, D.Ws. 2, 4 and 9 respectively have deposed that the Plaintiff was never in possession of the malgi and (2) that the very fact that Defendant No. 2 represented the claim of the Plaintiff in the municipality and got permission for construction in his (Plaintiffs) name is a circumstance against the Defendant.)

Great stress has been laid on the fact that the Plaintiff was a minor at the time of transaction and, therefore, he had no personal means to provide for the purchase money and that his father, who could help him has, as Defendant''s witness, admitted that he had not advanced to him any money. But, the onus being on him, the Defendant can succeed only on proving that the purchase money came from him and not merely on a surmise that the Plaintiff could have-no means to pay the same. However, there is material on record that Kishen, the Plaintiff, was in fact running a shop and he used to get some income as well.

Thus he had source of income and was possessed of means. It is further proved that he had in fact, paid the amount to Zainab Bi. This is sufficient to displace the presumption of benami no strenuously relied on by the Defendants. It is clear that the Defendants Nos. 1 and 2 have failed to establish the case of benami either by direct evidence or circumstantial evidence. We, therefore repel the plea of benami.

Now the next point for consideration is whether the Plaintiff is entitled to a decree even though his title to the land for want of a registered document is not unimpeachable. The title deed (Ex. V) on which the suit is based is described as an agreement to sell and contains a stipulation that a formal sale deed will be duly executed and registered within two months thereafter. But the document taken as a whole cannot be construed as mere contract of a sale which shall take place on terms settled therein for it evidences actual transfer of ownership and also the possession of the property for the price partly paid and partly promised.

The document, therefore, in view of its contents is in fact, a sale deed as defined in Section 54 of the Transfer of Property Act. According to the provisions of law, such a sale could be validly effected only by a registered sale deed. The title of the Plaintiff to the land, therefore, against the actual owner is defective and is likely to be impeached on this ground. The suit is not against the true owner but against a person, who has dispossessed him. Indeed, if the suit was brought within six months from the date of dispossession, it could not be open to the Defendant, be he the true owner himself, to raise the question of title at all.

It does not, however, follow that on the expiry of that time limit the Defendant can maintain his possession obtained by violent-self-help against the Plaintiff, who has a better, because a prior; title in himself recording to the principle of English law which has been recognised in Indian. Courts, possession is a good title against any one, who cannot show a better, Even a wrongful possessor has rights of an owner against all persons except the true owner and the earlier possessor. He is entitled to retain his possession uninterrupted and recover the same if dispossessed by any other trespasser.

The idea underlying this principle is twofold. Firstly, force and fraud cannot be allowed to determine all disputes between persons who cannot show unimpeachable title to the property as a true owner and secondly, as acquisition of title by operation of law is a lawful mode of acquiring title, person in peaceful possession should be allowed to maintain the same against all but the true owner or his representative in interest and be protected from any invasion on and interruption in possession which may arrest the process of development of his title into an indefeasible right through the influence of time.

That is the reason, why the law has recognised the possessor by ownership as distinct from proprietary ownership and made it heritable rind transferable. The Defendant No. 1, who not into possessions by force, therefore, cannot hold his own unless he news a better title. The sale deed relied on by him is executed by a person who has no title to the property. This cannot help the Defendant''s case. The Defendant No. 1 has therefore also set up, as a defence the title of true owner on the ground that the suit document for want of registration does not pass a valid title to the Plaintiff.

It is argued that the Plaintiff has to prove his title besides possession for a decree of ejectment against the Defendant. In this connection he has relied on a Bombay case reported in Govindbhai Lallubhai Patel Vs. Dahyabhai Nathabhai Patel, (C). The observation of their Lordships in that case seems to support the argument advanced, that a person whose title has been disproved by the Defendant cannot succeed in his suit for ejectment merely on the basis of his lost possession. The facts of the said case were different from the present one for therein it was found that the Defendants were not mere trespassers and that the Plaintiff''s previous possession was not satisfactorily established. There can be no two opinions that the Plaintiff, under these circumstances, had to establish both his title and possession within time.

But the learned Judges in making the above Observation have not limited the scope of the principle enunciated to such circumstances alone and have extended to all ejectment cases where the Defendant could disprove the title of the Plaintiff though he himself may not have a better. This view in its ultimate analysis amounts to a denial of the principle that possession ran be a foundation for a right to possession. In this way, it differs from what may be said to be the uniform view of the majority of High Courts in India. The High Courts of Allahabad, Burma, Madras, Lahore, Nagpur, Oudh, Patna and Sind are of view that the person who got possession by for cannot retain the same against his opponent less he proves a better title.

(Vide Jawahir Gir v. Jagarnath Prasad A 1927 All 760 (D); Salle Singh Vs. Mullo Singh, (E); Mt. Mansa Devi v Sa-saru AIR 1930 Lah 220 (1) (F); Dia Praks v. Bhana Mai AIR 1936 Lah 241 (G); Nayanappa v. Hanumanthappa AIR 1932 Mad (H); Phakkar v. Pragi AIR 1935 Oudh 268 Shiv Saran Rai v. Sukdeo Rai AIR 1937 Pat (J); Ram Keshwar v. Hart Charan AIR 1947 444 (K); and Govind Dutta Vs. Jagnarain Dutta and Others, (L). This view appears to based upon the principle that possession be the root of title, every possession must create title, which as against the subsequent intrud has all the incidents and advantages of a title.

The Calcutta High Court, however, seems favour the view that possessor by title cannot recognised unless peaceful possession is suffice long. (Vide Kiran Chandra v. Prosanna Kun AIR Cal 561 (M). This view seems tt somewhat different from the one expressed Satish Chandra Sen Vs. Krishna Kumar Das and Others, (N), where the learned Judge has referred the Privy Council case of J.P. Wise v. Amc nissa Khantoon 7 Ind App 73(O). So far as Court is concerned, it has consistently held view that if a trespasser is dispossessed by flier trespasser, the person dispossessed, car the basis of his prior possession recover the (Vide Laxmanclas v. Anandgir 12 DLR 507 Raghuvir Rao v. Gopal Rao 36 DLR 274 and Raja Shivraj Bahadur v. Vikarunissa Mahabub-e-Nazair 28 (R).

It is obvious, therefore, that unless the fondant establishes better title he cannot usefully maintain his possession against the tiff who has been dispossessed by him. The tiff in this case is not an intruder. He the property without force or fraud with the consent of the true owner, raised construction a considerable outlay after vindicating his rig the municipality and remained in peaceable session for a period or ten years or more.

Want of a registered deed may render his praetors title to the land somewhat defected against the true owner, but the possession in pursuance of sale transaction cannot be ed even by the true owner, especially, when true owner never disputed his right in the copal proceedings and allowed the malgi to up. Even if the owner sued for possessor Plaintiff might successfully resist the suit the provisions'' of Section 53(A) of the Transi Property Act, if he can avail of the same, the right to remain on the property can the defended against the true owner, a mere passer by show of force cannot defeat right.

At any rate, whatever the alleged def the title to the land, proprietary interest Plaintiff in the suit malgi is proved beyond p�t�. By no show of reason, the Defendant retain his possession against the true owner Court below has rightly decreed the claim Plaintiff. The appeal is, therefore, dis with costs.