Rowland, J.:— This is an appeal by defendant 1 in a suit arising in the following circumstances:

2. The appellant a firm of traders obtained a money decree against the defendant second party on 22nd December, 1928, and proceeded to attach the house in which the grain business of the latter was being conducted in Futwa. The plaintiff presented an objection under O. 21, R. 58 of the CPC, claiming that he was the owner of the house and that it could not therefore be attached in execution of the appellant's decree against defendant second party. The claim case of the plaintiff was rejected on 23rd July, 1929, and the present suit was instituted on 31st August 1929. The appellant alone contested the suit, the other defendants not appearing; and the Subordinate Judge decreed the suit holding that the house belonged to the plaintiff and was occupied by defendants 2 to 5 as tenants under him. The house was bought by the plaintiff in 1912 and at that time the Subordinate Judge thought the appellant had not established that there was any motive for a benami transaction. So the Subordinate Judge said:

“I find that the defendant has failed to prove that the apparent state of things is not the real state of things and sol hold that the plaintiff has his title to the property in suit.”

3. It is contended that the Subordinate Judge misplaced the onus and that even if the onus was correctly placed the appellant is entitled to rely on facts elicited in the cross-examination of plaintiff's witnesses for discharging it and that it should have been held to be discharged. To begin with it is common ground that the defendants second party were occupying the house up to the time of the money decree and attachment. Only one witness Bansi has deposed that Dasai Sahu paid rent which he says was at Rs. 300 per annum but no receipt is produced nor any accounts showing payment of rents. It is the appellant's case that the defendants second party being the real purchaser entered into occupation of the premises immediately after the acquisition from tiloki and built a house thereon. As to this the case made in the plaint para. 3 is that those defendants were carrying on arhatdari business in grain at Futwa and they took the plaintiff's house on rent when the same was being constructed and kept their gola in the same and completed the work that was incomplete till then at the cost of the plaintiff. This is an admission that the construction of the house was done in part at least by the defendants second party. On that admission the point for examination would be whether the defendants second party paid the money out of their own pocket or were reimbursed by the plaintiff. But in oral evidence an entirely different story is set up. Sita Earn says that he was the contractor, that he was paid Rs. 2,000 for the whole work which was done under the supervision of Ramrup Das and his chela Bansi Das taking about two years to complete and that after completion the Sahu defendants began, to reside in the house. Similarly Darbari Mabto, P.W 3, says that Dasai occupied the house after its reconstruction had been completed and that the reconstruction went on for four or five years. Bansi Lal, P.W 4, says that the house was let out to Desai after it was finished and that the witness spent Rs. 5,000 or Rs. 6,000 of the mahant's money on the construction. On the other hand the-defendants have examined Hari Goala,. a mason who says that he was employed, in the reconstruction of the house and was paid by Dasai Sahu and Eaghunandan Sahu as the house belonged to them, and they reside in it. D.W 2, Mahabir Chaudhuri, an ex-servant of defendants 2 to 4, deposes that Dasai built the-house at his own cost and that Eamrup Das never came into possession. D.W 3, Earn Narain, also speaks as to the possession of the house by the Sahu defendants who he says constructed the house. As regards occupation of the house two of the plaintiff's witnesses are-over-zealous. Darbari Mahto, P.W 3, says, “I never saw Dasai, Badri and Eaghunandan having any connexion withi the house” and P.W 5, Sohrai Dusadh, says, “Dasai, Badri or Eaghunandan never came in possession of the house”. On the other hand, P.W 7, Tiloki. Mahto, the vendor who is called to prove that he received the consideration money from Eamrup Das has said that after sale and before reconstruction no one occupied the house, that Dasai and Badri all along occupied the house after reconstruction; and “I do not know who reconstructed the house.” This witness further says that a privy was constructed in the house to which he objected and that there was a dispute between him and Dasai Sahu. He does not speak to any dispute between himself and Ramrup and Bansi who professes to be Ramrup's agent and in charge of his affairs, knows nothing of any disputes about construction of a privy. This witness Tiloki is the most important of the plaintiff's witnesses. The fact that, he received the consideration from Ramrup Das is no doubt one of the facts that the plaintiff had to prove and goes in his favour. There is also the fact that the sale deed is produced from the custody of the plaintiff but both these facts are consistent with the defendant's case that there was collusion between the plaintiff and the defendant second party. The plaintiff also has relied on the chaukidari tax receipts exhibits 2 series which stand in the name of Ramrup Das, but the clerk P.W 1, Kasi Prasad, who attests the receipts says that the payments were made to him by Raghunandan Prasad, one of the defendants second party. If the defendants second party were all along paying choukidari taxes the fact of the receipts being granted in the name of Ramrup Das is by no means conclusive and in fact has hardly any evidential value at all. Reliance has also been placed or the side of the plaintiff on Ex. 3 series which are plain paper receipts to show payment of rent to the superior landlord in the name of Ramrup Das. It has been objected on behalf of the appellant that these receipts have not been properly proved and are not evidence at all. They are as I have said on plain paper and could be fabricated at any time. They were used in the claim case. The witness who came forward to prove them is Sohrai Dusadh, a gorait; he is illiterate and did not write the receipts, but says he delivered them and that he actually realized the rent; but he says that he realized rent at the rate of Rs. 2-11-0, whereas not a single one of the receipts produced shows payment at this rate. His evidence also does not agree with the receipts as to the months in which payment was made. This witness's evidence appears to be worthless. An attempt was made to prove the receipts through another witness Audh Behari Lall who claims to be able to recognize the handwriting of the patwar is whose signatures purport to appear on the receipts, but he erroneously stated that Ex. 3(s) which purports to be by Ganpat Lal was in the writing of Gobind Lal. The evidence of this witness and Sohrai cannot satisfy anybody that payment of these rents was made by Rampur Das. Bansi P.W 4 says that he himself used to make the payments for Ramrup and take the receipts from Sohrai; that Sohrai is again contradicted. Thus it is proved that actual payment of choukidari taxes used to be made by the defendants second party and it is not proved by whom payment of rent to the superior landlord was made, though the name of Ramrup Das appears on the receipts in both cases. In these circumstances Mr. Manuk for the appellant has commented, strongly and justifiably on the failure of the plaintiff either to enter the witness box himself or to examine any of the defendants second party to prove that their occupation of the house which has been continuous for more than 12 years was not on their own account but a his tenants. The comment derived, added force from the fact that in the claim case also the plaintiff had absented himself from the witness box and his absence had been the subject of adverse comment by the Court which partly for that very reason decided the claim against him. It cannot be said that the plaintiff's absence from the witness box in this suit is due to inadvertence or that he could reasonably have remained ignorant of the importance of his personal testimony. It is submitted for the respondent that mahants and big landlords are not expected to depose-personally in every case in, which property belonging to their estates is concerned; the plaintiff has done all that should be expected in examining his karpardaz and agent Bansi Lal P.W 4. It is true that Ramrup calls himself a mahant but he does not appear to be so important a personage as not to be expected to examine himself in a case of this nature. Bansi Lal says that he has small cultivation and has his income therefrom and that his income has not been shown in any papers.

4. As for Bansi, the so-called agent, it is contended for the appellant that he has no knowledge of the matters about which he deposes. He admits that the negotiation for the purchase of the disputed house was not witnessed by him. He says that the sale deed was drawn up in his presence by Kanhai Lal of Patna who was sent for to Rutwa, through Ramdhani Barahil but Tiloki who certainly knowsiwbat he is talking about, says that the document was written at Patna City. Bansi Lal says that the sale deed was registered one day after it was executed but the document itself shows that it was registered on the same day on which it was executed. It is fair comment to say that Bansi Lal's evidence proves nothing but his own ignorance about the negotiations, about the preparation of the sale deed, about the execution and registration of the sale deed. His evidence is equally unsatisfactory as to the history of the house after its purchase. He says that in the same year it was let out to a tenant whose name he cannot give and who occupied the house for four or five months on rent at Rs. 16 per month. This story is contradicted by the plaint and by Tiloki Mahto, who says that no one occupied the house after the sale and before reconstruction. It is no noticeable that P.W 3 Darbari has another story that after the purchase the mahint himself occupied the house for a time.

5. This story also is at variance with the plaint and with the deposition of Tiloki Mahto. Then as to payment of choukidari tax Bansi admit that it was paid by defendants second party and as for payment of rent he admits that he never went to the zamindars of the site. He says that rent was collected from him by Sohrai Gorait whereas Sohrai whose evidence I have already commented on has said that he used to receive rent from Ramrup Das. The witness was cross-examined to test his knowledge regarding the conduct of the present suit. He is unable to name the person who is looking after the suit. He Bays that it is one Pandit, resident of Patna, who was appointed by the witness; the witness saw him in Court explained the position and he then took up the management of the suit. This ignorance on the part of the plaintiff's agent Bansi is consistent with the defence contention that Ramrup has nothing to do with this suit in reality and the real litigants are defendants second party. Bansi says that the signatures on the plaint and vakalatnama were made by Ganpati Lal but the plaint purports to have been signed by Ramrup Das with his own pen.

6. As a result of this analysis of Bansi's evidence it cannot but he said that his examination is no adequate substitute for the examination of the plaintiff himself. I am not satisfied that it is Ramrup or Bansi who is really fighting this suit. If Ramrup had been the real party interested in the house I think he would have examined himself. Had Bansi been the agent of the real party interested in the house he would have known more about it. Had the defendants been paying rent at Rs. 300 per annum or at any other rate (no rate of rent is specified in the plaint) some proof would have been forthcoming better than a bald statement at the end of cross-examination of Bansi who has lied regarding the letting of the house to another tenant at Rs. 16 per month. The evidence fails completely to show that Ramrup paid rent to the superior landlord while it establishes that defendants 2 to 4 used to pay the choukidari tax. The facts relied on by the Subordinate Judge that the document is in plaintiff's name, that receipts from the superior landlord are in plaintiff's name, that choukidari tax receipts are in plaintiff's name and that these documents are produced on behalf of the plaintiff are all perfectly consistent with the transaction having been benami and in the circumstances of this case I believe that the purchase was benami the real beneficiary being the defendants second party and that the present suit has been brought in the name of the plaintiff in collusion with those defendants. They have not filed written statement in the suit but previously they were setting up title in themselves to the house as appears from the judgment Ex. A of the money suit brought against them by defendant 1.

7. Their contention then was that all the defendants were not liable for the claim as there had been a separation among them and that defendant 2 of that case was not responsible for the debts and was by virtue of the partition the owner of the house. The Subordinate Judge thought, in 1912, the date of the sale-deed in suit, there was no particular pressure on defendants 2 to 5 to cause them to enter into a benami transaction. He is no doubt right in saying that the particular decree which was passed in favour of the present appellant in 1928 was not then contemplated and could not have been in their minds as a motive for benami. But as has been often pointed out the system of putting property benami is extremely common in India and a purchaser of a property is often found to have taken it in another's name not under pressure of any immediate fear of proceedings in which it may be seized for his debt but as a general measure of precaution. There is no improbability in supposing the defendants second party to have so used the plaintiff's name in this transaction in view of the evidence of Mahabir Ghoudhry, defence witness 2, that Dasai is Ramrup's chela. Ramrup does not go into the witness-box to deny it nor does Dasai. The only denial of this allegation comes from the mouth of Bansi whose evidence is as I have shown above worthless.

8. I would allow the appeal and dismiss the suit with costs throughout.

9. Fazl Ali, J.:— It is plain that in a suit under O. 21, R. 63, as in all other suits, the onus lies on the plaintiff of proving the facts upon the proof of which only the relief sought by him can be granted. It follows therefore that where the plaintiff in such a suit is the Creditor, it is for him to prove that the property sought to be seized by him in execution belongs to his judgment-debtor land not to the person whose claim to the property has been upheld by the executing Court; and if he is the claimant whose claim has been rejected by the executing Court, he has be show that the property belongs to him and not to the judgment-debtor, A difficulty however arises, when the plaintiff happens to be the ostensible owner of the property whose objection has been dismissed under O. 21, R. 58. In such a case the question arises as to how far he is entitled to the benefit of the presumption that the apparent state of things is also the real state of things. Now, the view which has prevailed in Courts in India is that in such a case the onus is upon the plaintiff to show affirmatively that not only the ostensible, but the real title is in him. This view is based on the ground that the suit under O. 21, R. 63 is essentially a suit to set aside an order made adversely to the plaintiff in execution and the order must be presumed to be correctly made until it is set aside. In other words the presumption as to the correctness of the order is ordinarily sufficient to re put or at least to considerably weaken the presumption that the ostensible owner is the real purchaser. Sir Lawrence Jenkins in delivering judgment in the case of 1916 Cal. 666(1) observed:

“The plaintiff in the circumstances of this case cannot discharge the burden of proof cast on her by merely pointing to the innocent appearance of the instruments under which she claims; she must show that they are as good as they look.”

10. Similarly in 30 All. 321(2), Sir John Stanley, C.J, and Karamat Husein, J., expressed themselves thus:

“It appears to us well settled so far at all events as this Court is concerned, that a plaintiff coming into Court under such circumstances is bound to lay before the Court some evidence to satisfy the Court that the document under which she claims represents a bona fide and genuine transaction.”

11. The view propounded in these cases and many others, which need not be referred to, receives ample support from the decision of the Judicial Committee in 1930 P.C 255(3) and the same view has been reiterated by this Court in the recent case of 1929 Pat. 579(4) where a number of authorities have been referred to and elaborately discussed. The appellant however strongly relies on the decision in the case of 1927 P.C 237(5) wherein Lord Dunedin in delivering the opinion of the Judicial Committee observed:

“Now, they (the plaintiffs in a suit under O. 21, R. 63) being the ostensible owners of the property under a duly registered deed and a deed of transfer, obviously the party claiming to attach that property for somebody else's debt, not their debt, but the debt of the original debtor, must show that the sale was a fraudulent one, and that could only be done in this case (there is no other evidence) by showing utter inadequacy of consideration.”

12. These observations however have been fully explained by this Court in 1929 Pat. 579 (10 Patna Law Times 339) where it has been pointed out that in order to understand their true significance one must read them with reference to the facts of the particular case before the Judicial Committee. It is to be remembered that in that case not only had it been established that the plaintiffs were ostensible owners of the property but it was also established that the plaintiffs had paid at least Rs. 17,000 out of the total consideration of Rs. 20,000 for the deed of transfer in their favour, and that being so the Judicial Committee declined to hold that the sale in favour of the plaintiff was a frandulent one. It is also to be remembered that the judgment in 1930 P.C 255 was also delivered by Lord Dunedin and some of the observations which he is reported to have made in course of the arguments in that case are sufficient to show that he could never have meant to enunciate in 1927 P.C 237, a view which is not quite in accord with the view expressed in the earlier decision.

13. The appellant also strongly relies on 1933 All. 198(6) where a Division Bench of the Allahabad High Court held that in a suit brought by an ostensible owner of the property whose objection to attachment had been dismissed under O. 21, R. 58 though the initial onus undoubtedly rests on the plaintiff and he has to establish his title to the property, yet having established the due execution of the deed of conveyance by one who admittedly owned the property, the apparent tenor of the deed must prevail, unless it is established by the defendant that the ostensible owner is only a benamidar. At the first sight this view does not seem to be quite in accord with the view which has been consistently held by this Court; but it is unnecessary to discuss whether there is any real conflict between this decision and the decisions of this Court firstly, because in the present case both parties having adduced evidence, the question of onus does not arise and secondly, because it appears to me that even on the principle laid down by the learned Judges of the Allahabad High Court the present case must be decided against the plaintiff.

14. In the case decided by the Allahabad High Court the house in dispute stood on the site of an old kuchha house which had been purchased in the name of the plaintiff and subsequently the new construction was erected at a cost of nearly Rs. 2,000. The learned Judges found that defendant 2 had built the he use and remained in possession thereof and this in their opinion was sufficient to rebut the presumption arising in plaintiff's favour by reason of his being the ostensible purchaser under the title deed. Their Lordships in this connexion observed as follows:

“Prima facie where a person makes a costly building on a site and remains in possession of the building for a considerable length of time the presumption is that he had a right to build on the land. In the circumstances of this case such right can only be referable to the circumstance that he was the owner of the land. He could be the owner of the site if the sale thereof was benami for him.”

15. In the present case as my learned brother has shown, the evidence adduced by the parties leaves no room for doubt that defendants 2 to 4 have been for a long time in possession of the new house which was built at a considerable cost on the-site of the old house said to have been purchased by the plaintiff and there is also sufficient ground for holding that the new house was constructed by the defendants with their own money. The admission in the plaint that defendants 2 to 4 “completed the work that was incomplete, the failure on the part of the plaintiff to produce any written account of the cost of the building, his deliberate omission to give evidence and the contradictions between the evidence of P.W 2 who was put forward as the person who had taken the building contract and the evidence of P.W 4 who was alleged to have supervised the construction as the person managing the affairs of the mahant are only some of the matters which show that the evidence adduced on behalf of the defendant first party that the new house belongs to the defendants second party and not to the plaintiff supplies the correct version of fact. It appears to me therefore that the principle which was enunciated in the case of 1933 All. 198 that where a person makes a costly building and remains in possession thereof, the presumption is that he had a right to build on the land fully applies to the present case. The circumstances which are usually taken into consideration in deciding whether a certain transaction is benami or not are, among others, the possession of the property, source of consideration money, custody of the title deed and “motive.” It has already been pointed out that it is not seriously challenged in this case that the defendants second party have been in actual possession of the house for a long time and my learned brother has elaborately dealt with the significance and value of the chaukidari receipts and rent receipts. As to the source of the consideration money it is true that Triloki Mahto, the vendor of the house, supports the plaintiff in so far as he states that he received the consideration money from the hands of the plaintiff; but even this person, who is undoubtedly the best of the plaintiff's witnesses has stated in his examination-in-chief I do not know if the house was on rent or it belonged to Dasai Sao and again in cross-examination “I do not know who re-constructed the house.” As to the custody of the deed, it undoubtedly purported to have been tendered in evidence on behalf of the plaintiff, but it does not necessarily follow that the actual custody of the deed was with the plaintiff. Some of the statements made by the plaintiff's own witnesses make it highly doubtful that the plaintiff himself is fighting the present case, and if this fact is doubtful it is also doubtful that the document came from his custody when it was produced in Court. P.W 4 has stated in his evidence that the plaint and the vakalatnama filed in the trial Court were in fact signed by one Ganpatlal, though they purport to have been signed by the plaintiff and as to who is looking after the case on behalf of the plaintiff he makes the following curious statement:

“One Pandit whose name I do not know is looking after this suit. He is a resident of Patna. The Pandit was appointed by me. I saw him in Court and explained to him my position and he then took up the management of the suit.”

16. On the question of motive it has been suggested that sometimes wealthy purchasers purchase property in the name of other persons in order to keep down the price and the present case may be one of that type. However that may be benami transactions are so common in India and are so frequently entered into without any apparent motive that where other circumstances clearly point to the benami character of a particular transaction, the mere fact that there is no apparent motive for the property being purchased in another person's name may not be sufficient to outweigh the cumulative effect of the other circumstances. I may also usefully refer here to the following observations made by the Judicial Committee in the case of 1919 Cal. 181(7):

“In regard to benami transactions Courts of law should not approach them with that scrupulous rigour which in other systems of jurisprudence may demand the existence of the clearest positive evidence that the ex facie owner of a property is a trustee for or holds the same for the interest of another.

17. Benami transactions are very familiar in India practice and even a slight quantity of evidence to show that it was a sham transaction will suffice for the purpose.”

18. Thus having regard to all the circumstances of the case I think that the respondents have established that the plaintiff is a mere benamidar for defendant second party and I agree with my learned brother that the appeal should be allowed and the suit dismissed with costs.

19. Appeal allowed.