1. This second appeal by the defendants arises under the following circumstances. Mohi Ram and others filed a suit against Bansi Lal and others, alleging that the suit lands were purchased in 1950 S. for Rs. 155/8/- out of funds contributed by the villagers of Sangra. For the sake of convenience, the name of Dhian Singh alone was entered over it as ‘Benamidar’. After the death of Dhian Singh, the defendants continued to hold the property in the same capacity, i.e, as ‘Benamidars’. The plaintiffs alleged that they had been in possession of the land, since its purchase, and had been grazing their cattle there and collecting fuel therefrom. At the time of the settlement, Dhian Singh managed to get the land entered in his exclusive name by misrepresenting facts. In Jeth 2006 S., the defendants prevented the plaintiffs from grazing their cattle on this land. In Asar 2007, the defendants further seized the plaintiffs' cattle and impounded them and also filed a complaint against them. Hence, the plaintiffs sought a declaration that they, along with the defendants, were the proprietors of the suit lands and an injunction restraining the defendants from interfering with their grazing and other rights over this land. In the alternative, the plaintiffs pleaded that they had acquired easement rights over this land and the defendants-should be restrained from interfering with those rights. A sum of Rs. 300/- was also claimed as damages.
2. The suit was resisted by the defendants, ‘inter alia’, on the ground that the suit lands had been purchased by Dhian Singh out of his personal funds. They contended that the plaintiffs had no rights in this land and were never in possession of it. They also denied the plaintiffs' rights of easement. Certain legal pleas, challenging the competency of the suit, were also taken.
3. The Senior Subordinate Judge of Nahan, who tried the case, found that the suit lands belong to the defendants and they were in possession, as proprietors, and not as Benamidars, an alleged by the plaintiffs. He also found that the; plaintiffs had no easement rights. In the result, he dismissed the suit.
4. The plaintiffs then went up in appeal to the learned District Judge of Mahasu and Sirmur.’ The latter differed from the findings of the trial Judge and came to the conclusion that the suit, lands had been purchased on behalf of all the villagers and Dhian Singh's name alone was entered in the revenue papers, as it was a ‘Benami’ transaction. He further held that the suit was within time and otherwise maintainable. Consequently, he allowed the appeal and decreed the suit. Hence, this second appeal by the defendants.
5. I have heard learned counsel for the parties at considerable length. Learned counsel for the appellants argued, vehemently, that the learned District Judge was not justified in reversing the findings of the trial Court. He argued that the District Judge has wrongly placed the onus of proof on the defendants. He drew my attention to the following passage in the judgment of the learned District Judge.
“The exclusive title of the contesting respondents was denied by the appellants and it was for the contesting respondents to produce unimpeachable evidence about the title as their rights had been denied.”
6. Learned counsel for the appellants contended and, in my opinion, not without justification, that it was for the plaintiffs to prove that the transaction was ‘Benami’. Reference was made, ‘inter alia’, to the following rulings: (a) ‘Maniklal Mansukhbhai v. Bijoy Singh’, AIR 1921 PC 69 (A), where their Lordships pointed out that:
“The burden of proof lies on the party assailing a transaction as ‘benami’, although the circumstances may be suspicious. In such cases it is essential to take care that the decision of the Court rests not upon suspicion, but upon legal grounds, established by legal testimony.”
(b) ‘Nawab Azimut Ali Khan v. Hurdwaree Mull’, 13 Moo Ind App 395 (PC) (B), where their Lordships held:
“The Courts look with jealousy on ‘Benamee’ transactions, and require from one claiming under such title, strict proof, and he can only recover on the strength of the case, he asserts.”
(c) ‘Po Kin Maung v. Maung Po Shein’, AIR 1926 PC 77 (C), where the decision was:
“In all benamidar transactions the very object of the parties is secrecy; but still the person who alleges that property conveyed to another belongs to himself must prove his allegation and prove it beyond reasonable doubt.”
7. In — ‘Md. Hajee Valli Mohamed v. Vednath Singh’, AIR 1938 Rang 26 (D) (which has been referred to by the learned District Judge), the same principle was followed, namely, the burden of proof lies on the person seeking to establish that any particular transaction is a ‘Benami’ one ‘and similar was the view taken in — ‘Monmatha Kumar v. Josada Lal’, AIR 1924 Cal 647 (E), also referred to in the District Judge's judgment.
8. With this background, let us see how far the plaintiffs discharged the onus, which lay heavily on them. Oral evidence was adduced by the plaintiffs to show that the purchase money was contributed by all the villagers. Six witnesses were produced in this behalf. Out of these, P.W 1 to P.W 4 have no personal knowledge of the purchase money being contributed by the villagers. They based their testimony on what they had heard from their parents. None of these witnesses was alive at the time the land was purchased. Bali Ram (P.W 5), who gave his age as 104 years, deposed that he was present at the time the money was collected from the villagers for the purchase of the land. He was corroborated, to some extent, by Devi Das (P.W 6). The latter was, however, unable to state as to whether the money was actually paid to Dhian Singh.
9. The learned Senior Subordinate Judge has pointed out, and, in my opinion, rightly, that the plaintiffs made no attempt to produce Mansa and Kamna, who, according to the plaintiffs witnesses, had actually contributed money for the purchase of the suit land and who were still alive and had been impleaded as plaintiffs. Before the Subordinate Judge, it was stated that Mansa and Kamna were too old to move about. If they were too feeble to go to Court, their statements could, very well, have been recorded on commission, as the Subordinate Judge has pointed out. No attempt, in that direction, appears to have been made by the plaintiffs. Bali Ram, admittedly, is related to Rup Singh and Prem Singh, plaintiffs. Thus, the oral evidence tendered on behalf of the plaintiffs is not convincing.
10. Coming to the documentary evidence, the ‘patta’, Ex. D-1, is in favour of Dhian Singh alone. It further tends to show that the purchase money was paid by Dhian Singh alone. The learned District Judge was, apparently, impressed by an application made by the villagers of Sangra, Ex. P-1. This application is in old Sirmuri script and P.W 15, Rajendra, claimed to be able to decipher it, after taking two and a half hours over it. Admittedly, he was diffident about his being able to make it out correctly. Even if Rajendra's version of this document is accepted, as correct, it amounts, at the most, to an application made on behalf of all the villagers to purchase the jungle in question. The learned District Judge was impressed by the fact that in the mutation order, Ex. D-2, the direction was that the entry be made in Dhian Singh's name ‘alone’. This, to my mind, is not conclusive. It may be that, to start with, an application was made on behalf of all the villagers, but, subsequently, the purchase money was paid by Dhian Singh and the patta was issued to him alone. In — ‘Mrs. N. Johnstone v. Gopal Singh’, AIR 1931 Lah 419 (F), it was held that:
“The best criterion for determining whether a transaction is or is not ‘benami’ is the source of purchase money.”
11. A similar view was taken in — ‘Gangadara Ayyar v. Subramania Sastrigal’, AIR 1949 FC 88 (G), where their Lordships pointed out that:
“In a case where it is asserted that an assignment in the name of one person is in reality for the benefit of another, the real test is the source whence the consideration came and when it is not possible to obtain evidence which conclusively establishes or rebuts the allegation, the case must be dealt with on reasonable probabilities and legal inferences arising from proved or admitted facts.”
12. As already pointed out, the evidence adduced by the plaintiffs to show that the purchase money came from the entire body of villagers was hardly convincing.
13. There are certain other circumstances, which militate against the plaintiffs' case. For instance, the plaintiffs' case was that they had applied for a grant of the suit lands, because the area at their disposal for grazing purpose was inadequate. This is belied by the statement of Atma Ram Patwari, D.W 3. According to him, the villagers of Sangra have 3,128 bighas and 8 biswas of Shamlat land in their patti and, according to the entries in the revenue papers, they were entitled to graze their cattle on this land and also to collect fuel therefrom. The Shamlat areas are adjacent to the suit lands and, according to the plaintiffs, there is no demarcation boundary. It is, thus, very probable that P.Ws 5 to 14, who hail from other villages, mix up the two areas, when they say that the plaintiffs used to graze their cattle on the suit lands.
14. The trial Court has also referred to certain other circumstances, which go against the plaintiffs. They are as follows:— (a) In 1951 S., Dhian Singh, the alleged ‘Benamidar’, got the names of his two brothers, Kundanu and Shobha Ram, entered over this suit land, along with his name, vide order on back of Ex. D-2. If the transaction was, in fact, ‘Benami’, then it was exceedingly improbable that, within a year, Dhian Singh should have practised fraud on the plaintiffs and got the names of his two brothers entered along with his name, (b) The defendants erected some sheds on the suit land and also brought a portion of it under cultivation. This was admitted by the plaintiffs who, however, maintained that this was done with their consent. There is, however, nothing to prove this beyond their statement. Further, it seems exceedingly unlikely that the plaintiffs would keep quiet, if the defendants had started tilling the land, (c) In 1981 S., or thereabout, disputes arose between the parties. The defendants did not permit the plaintiffs to graze their cattle on the suit land. The defendants also filed a complaint under Section 107 of the Cr PC, against some of the plaintiffs, resulting in their being bound down under that section. The matter went up to the Sirmur High Court in revision. The order, binding down some of the plaintiffs, was set aside by that High Court, vide Ex. D-5. The plaintiffs were directed to get their rights adjudicated by a competent civil Court. It does not appear, however, that they took any such steps even at that stage. Such being the state of evidence and such being the attendant circumstances, I am of the view that it is exceedingly improbable that the land was purchased in the name of Dhian Singh, as ‘Benamidar’, by the entire village community.
15. Coming to the alternate case of the plaintiffs, namely, that they had acquired easement rights over the land, the Senior Subordinate Judge was not inclined to rely on the oral testimony of the plaintiffs' witnesses. The learned District Judge has not discussed this aspect of the case. I have not believed the tetimony of the plaintiffs' witnesses regarding the ‘Benami’ nature of the purchase. I find it equally difficult to believe them, when they say that the plaintiffs used to graze their cattle and collect fuel from this land.
16. In view of my findings above, the suit fails on its merits. Under the circumstances, it does not appear necessary to go into the objections raised against the competency of the suit and the appeal to the District Judge, i.e, the pleas of limitation, bar of Section 42 of the Specific Relief Act, and abatement. The result is: I allow this appeal, set aside the decision of the District Judge of Mahasu and Sirmur dated 17-4-1952 and restore that of the Senior Subordinate Judge, Nahan, dated 31-8-1951. In other words, the suit is dismissed. The appellants will get their costs here and in the Courts below from the contesting respondents.
D.R.R
17. Appeal allowed.