P L D 1959 (W (PLP)

KAIKAUS, J.‑This is an appeal by the heirs of one Pir Fateh Muhammad Shah against a decree granted by the First Class Sub‑Judge, Hyderabad declaring Mian Bux, respondent, to be the owner to the extent of one‑half of the land in suit which stood in the Revenue records in the name of Pir Fateh Muhammad Shah alone. Pir Fateh Muhammad Shah owned considerable immovable property. The plaintiff, who had been enlisted as a constable retired as a head constable of police in the year i

941. His story is that he had been posted as a head constable three times in Matiari police station within the limits of which was situate Nasarpur the village of Pir Fateh Muhammad Shah deceased and he and the deceased were friends In the year 1940, he and the Pir entered into an agreement to purchase some Sukkur Barrage lands that were being abandoned by three persons, Jam Chand Jarro Chand and Jewat Ram. These persons were abandoning the land because they were unable to pay the malkana. According to the terms which regulated the grant by the Government of Sukkur Barrage lands 20 per cent of the consideration was payable by the grantee at the time of the grant and the balance was payable in 15 yearly installments. In accordance with their agreement, the plaintiff and the deceased purchased jointly 40 acres left by Jewat Ram in the beginning of 1940 and a month and a half later 150 acres which had been abandoned by the Chands. These lands, which were purchased jointly, were entered in the name of the deceased alone, because the plaintiff was in Government service and also because, according to the rules governing grant of the Barrage lands, the grant could be made only in favour of one person. The total amount which was to be paid in the first instance for both these grants was Rs. 4,200 and the plaintiff and the deceased contributed equally towards this sum. The plaintiff and the deceased entered into joint possession of these lands, On the 1st March 1942, they purchased 20 (28 ?) acres of land jointly front one Jhuman for the sum of Rs. 1,

950. Towards this amount also the parties contributed equally. Pir Fateh Muhammad Shah died in the end of April or the beginning of May 1942, leaving behind him two sons and a widow, but one of the sons died soon after. Superintendence of the estate of Fateh Muhammad Shah was assumed by the Court of Wards. The plaintiff approached the Court of Wards for a joint payment of installments that were still due and asked them to recognize his title to half the land in dispute. The Manager of the Court of Wards referred the matter to the Mukhtiarkar, who after enquiry made a report in favour of the plaintiff. The Court of Wards still did not accept the claim of the plaintiff. The plaintiff' filed appeals to Government but without success. He was, therefore, forced to file a suit, and he filed the present suit on the 13th of November 1944. The relief claimed was a declaration that the plaintiff was the owner of one‑half of the 218 acres referred to above. He did not sue for) possession because possession was with him. The defendants in the suit, viz. the son and widow of the deceased, and the Court of Wards denied that the plaintiff was the owner of one‑half. They alleged that the plaintiff was a kamdar of the deceased, that is, a person who managed the lands of the deceased. They denied at first that he was in possession, but ultimately learned counsel for the defendants admitted that the plait) tiff had remained in possession . all along and this fact is no longer contested. A number of issues had been framed in the suit, but the only one that remains for decision is whether the plaintiff is the owner of one‑half of the land in dispute and the land had been entered benami in the name of the deceased to the extent of one? half. On the question of benami, the evidence produced by the plaintiff consists of‑ (i) statements of witnesses to the effect that there was an agree?ment between the deceased and the plaintiff for joint purchase of the land ; (ii) statement of witnesses to the effect that the deceased had admitted before them the benami nature of his title to the extent of one‑half ; (iii) evidence as to payment of half share of consideration ; (iv) in the case of the sale by Jhuman, direct evidence as to the plaintiff being one of the purchasers ; and (v) evidence as to possession of the land. In his statement in the witness box, the plaintiff said that Jam Chand, Jarro Chand and Jewat Ram were not paying their malkana regularly. The deceased sent for him and in the presence of Pir Allan, Khalifo Aban, and Israr Muhammad a police officer, entered into an agreement with him that they would purchase the land abandoned by the three persons mentioned above in equal shares. The first purchase was made at Shahdadpur which was of 40 acres left by Jewat Ram. About a month and a half later 150 acres abandoned by the Chands were purchased at Hala. The total amount payable in the first instance in respect of the two pur?chases was Rs. 4,200 and he paid Rs. 2,

100. The land had been purchased in the name of the deceased alone because Government did not permit joint acquisition of Barrage lands. After the purchase he had been sending cotton pods to ginning factories though this was done in the name of the deceased. Up to the time of making the statement, he had been in possession of the land. The produce of the land had continuously been divided half and half between him and the deceased. When questioned as to wherefrom he had acquired the money for payment of the share, he said that he had sold a house in a village for Rs. 700 and Rs. 1,200 he had borrowed from Israr Muhammad, the police officer already referred to, who happened to be in Hala on the day the money was paid to the Government. In 1942 he and the deceased jointly purchased 28 acres from Jhuman. He paid half the price and entered into joint possession of the land. After the death of Pir Fateh Muhammad Shah he had approached the Manager of the Court of Wards for joint payment of the remaining installments. He had also asked the Manager to accept his ownership of half of the land in dispute. The Manager had referred the matter to the Mukhtiarkar and the Mukhtiarkar who had made a thorough enquiry and examined a large number of witnesses (almost all the witnesses that have been produced in the suit) had reported that half the land belonged to him. He had been receiving bills of assessment relating to the land in dispute. He had been applying for remission of land revenue. He produced assessment bills and also a certificate of remission. Israr Muhammad P. W., was at the time he made the statement, a Deputy Superintendent of Police, but it is not known what office he was holding in 1940. He stated that in his presence there were talks between the plaintiff and the deceased about purchasing the Barrage lands which had previously been granted to the Chands and to Jewat Ram. The talks took place on two or three occasions and he had been present throughout the talks. The plaintiff and the deceased had agreed to purchase the land jointly. The witness was present at Hala when payment was made to the Barrage Office. The plaintiff had asked him to give a loan, and he had paid Rs. 1,

200. There was no writing to witness this transaction. After the retirement of the plaintiff he had, at the instance of the plaintiff, gone to the deceased while he was lying ill at Hyderabad and had asked him to have a mutation effected in favour of the plaintiff. The deceased had said that he would have a mutation effected the moment he got well. Aboo alias Abdullah (P. W.) was the Khalifo of the deceased and use to manage his lands. He states that in the beginning of 1940 the deceased and Mianbux had talks with respect to the purchase of the lands from the Sukkur Barrage in the presence of the witnesses Pir Allan, Israr Muhammad and Rais Fakir Muhammad Padhiany. The conclusion reached was that the parties should purchase the land of Jewat Ram and the Chands in equal shares. The land was purchased in the name of the deceased in two lots. The first purchase which related to the land left by Jewat Ram, took place at Shahdadpur in January, 1940, when Rs. 600 were paid which were contributed equally by the plaintiff and the deceased. About two months later the land abandoned by the Chands was purchased at 13ala. The plaintiff had paid the half of the amount of the consideration. Saiffal Khan the son of the plaintiff had been managing the cultivation in the land. The witness went on to state that land had been purchased from Jhuman also jointly by the deceased and the plaintiff, the plaintiff having paid one‑half of the purchase price partly before and partly at the time of sale. On being cross‑examined the witness admitted that there was a dispute between him and the heirs of the deceased who claimed that 60 acres of land which stood in his name belonged to the deceased. Pir Allan is a consanguine brother of the deceased and he is also the Pagdar of the Giddi of the family. He pays Rs. 12,000 annually as land revenue. He stated that there had been in his presence talks between the deceased and the plaintiff in the Otak of the deceased at Nasarpur. It. had been agreed that the land abandoned by the Chands would be .taken in equal shares. After the death of Pir Fateh Muhammad Shah the plaintiff approached him for payment of instalments that were yet due. He had approached the widow of the deceased for this purpose but without success. The plaintiff had not been appointed as a kamdar of the land in dispute by the deceased but had one‑half share in it. On being cross‑examined the witness denied that there was any dispute between him and the deceased. He denied too that after the death of the deceased he had approached her for a marriage or had confined her. He admitted that a warrant for release of the widow had been issued but the warrant was not against him. It was against Muhammad Shah a full brother of the deceased. Jial Shah is another witness who has deposed in respect of this agreement though he has not been named as a person present by the plaintiff or any other witness. He states that the land in dispute was only half a mile from his land. It had been taken from the Government in the first instance by the Chands. The deceased and the plaintiff agreed at the otak of the deceased at Nasarpur in his presence to purchase this land jointly. He is since then seeing the plaintiff in possession and enjoyment of the land. It may be observed that this witness like Pir Allan speaks only about the land abandoned by the Chands. (Chand is the caste of Jam and Jarro). This concludes the evidence with respect to the agreement. As regards the payment of his share of consideration we have already referred to the statement of the plaintiff himself that he paid its. 2,100 in{ the first instance and that he had secured Rs. 700 of this sum by sale of a house and Rs. 1,200 as a loan from Israr Muhammad. lsrar Muhammad has supported him as regards the loan from him though there is no writing evidenc?ing the transaction. Khalifo Aboo (P. W.) has also made a statement that half of Rs. 600 was paid at Shahdadpur and half of the amount paid at Hala was contributed by the plaintiff. There is at the same time the evidence of Hassan Bux a Tapedar who says he was working as a Tapedar in the Barrage Depart?ment in 1940 and that the plaintiff and the deceased came to him on two occasions and purchased Government land in two pieces. The land they purchased is the land in suit. There was a Government Resolution to the effect that Barrage land could be purchased in the name of one person alone and therefore the land was purchased in the name of the deceased only. With respect to the admissions of the deceased there is the evidence of Rupchand, Amin Muhammad Shah and Haji Miran (P. Ws.) Rupchand is a landlord paying Rs. 1,00,000 as annual assessment and he has also 3 ginning factories. He states that the deceased was his friend and had dealings with his factory at Tando Jam. He too wanted to purchase some land from the Government and in order to see the land which he intended to acquire he had gone and stayed with the deceased. The deceased had told him that in Deh Shahpur he and the plaintiff had jointly purchased land from the Government although the land stood only in his name. Amin Muhammad Shah too is a landlord paying Rs. 20,000 as annual assessment. He states that the deceased was his friend and the land of the deceased was less than half a mile from his land. The deceased had admitted that the plaintiff had half share in his land in Deh Shahpur. Haji Miran (P.W.) stated that there was a disused canal in the Barrage land which was jointly acquired by the plaintiff and the deceased, and both of them came to see the disused canal. The witness was present at that time. The deceased addressed him and said that he and the plaintiff had taken the land in equal shares and that they would have the canal filled in. The witness added that on another occasion he was present at the residence of the deceased when the deceased admitted before him that even the land purchased from Juman Ghaho was jointly owned by him and the plaintiff. A good deal of oral evidence was produced with respect to the possession of the plaintiff. Considering that this fact is no longer denied it is not necessary to discuss this evidence. With respect to the purchase from Juman Ghaho the witnesses produced are Juman Ghaho and his son Muhammad Umer. Juman Ghaho states that it was the plaintiff who had approached him for the purchase of his land and it was the plaintiff with whom he had the talks. Then he and the plaintiff had gone to the deceased. He had demanded Rs. 100 per acre and ultimately the bargain was settled at Rs. 70 per acre. He was to sell the land both to the plaintiff and the deceased in equal shares. It was at the time of the execution of the deed that he came to know that the sale deed was to be executed in the name of the deceased alone. When he asked for the reasons he was told by the deceased that as the Barrage land of which he and the plaintiff were owners in equal shares stood in the name of the deceasad alone this land was also to be purchased in his name. At the time of the agreement Rs. 500 had been paid to him by the plaintiff. Subsequently he had received Rs. 1,000 more before the sale deed, was execpted, Rs. 400 on one occasion and Rs. 600 on another occasion. The balance of the consideration was paid at the time of the execution of the sale deed. Muhammad Umer the son of Jhuman Ghaho supported his father. He stated that the land was purchased by the plaintiff and the deceased though it was shown in the name of the deceased alone. Rupees 1,500 had been paid about 1 4 months prior to the execution of the sale deed and about Rs. 300 had been paid at the time of the execution of the sale deed. Possession of the land had been handed over to the plaintiff who continued to be in possession. To the statement of Haji Miran with respect to the admission of the deceased as to the land purchased from Juman Ghaho a reference has already been made. On behalf of the defendants, Lai Khatun the widow of the deceased made her statement in the witness box. She stated that the plaintiff was only a kamdar of the deceased who was looking after and managing his lands, not the particular land in dispute but all his lands. Pie had been in the employment of the deceased for about a year before the death of the deceased. Pir Allan had offered to marry her but she had refused and he had then turned against her and joined hands with the plaintiff and Khalifo Aboo (P. W.). Pir Allan had put her in wrongful confinement. She repudiated the suggestion that the plaintiff had been taken as a partner by the deceased because the plaintiff was a strong man. Jani Beg (D. W.) is the sister's husband of Mst. Lai Khatun. He stated that the plaintiff was not the kamdar of the deceased and in fact he had no connections with the deceased. He stated too that after the death of the deceased Pir Allan had wrongfully confined the widow of the deceased and it was he who filed a criminal case in the Court of S. D. M. and got her released. Fateh Muhammad (D. W.) stated that the plaintiff used to live with the deceased and to attend to his work but added that he never saw the plaintiff doing any cultivation work with respect to the land in suit during or after the life‑time of the deceased. Din Muhammad (D. W.) who had been a kamdar of the deceased stated that the plaintiff used to visit the deceased along with Israr Muhammad and to live with him. The deceased sometimes used to entrust him with some work in Government offices. Noor Muhammad (D. W.) stated that the plaintiff used to stay with the deceased and used to do some private work of his. Pir Allan was not on good terms with the deceased and had been compelling the widow to marry him. This concludes the evidence. We will now consider what parts of it we are prepared to accept. So far as the evidence relating to the agreement is concerned we may not, but for the statement of Pir Allan, the consanguine brother of the deceased, have accepted it. There is no sufficient reason, however, for rejecting the testimony of Pir Allan. Suggestions were, no doubt, made in cross‑examination that he was not on good terms with the deceased and had confined his widow and it was alleged too that the widow had been recovered only by proceedings in Court. But if this was correct documentary evidence could very easily have been produced and it is to be observed that the widow herself makes no reference to any proceedings in Court against Mir Allan. There is no material on the record to hold that the relations of the witness with the deceased were not friendly but even if they were not on very good terms it will be difficult to accept that Pir Allan would make a false statement so as to deprive his minor nephew of a large area of land. He has no particular interest in the plaintiff and does not in any way stand to gain if the land of his brother goes to the plaintiff. We do therefore accept that there was between the deceased and the plaintiff an agreement as to joint purchase of Barrage land. But it will be observed that Pir Allan has deposed to the purchase only of those lands which were abandoned by the Chands and not to the land abandoned by Jiwat Ram nor to the land pur?chased from Juman Ghaho. The evidence as to payment of price is hardly satisfactory. The plaintiff has stated that he got Rs. 700 by a sale of a house. The Transfer of Property Act applies to the Sind area and no, sale for Rs. 700 could have taken place without a registered instrument. Rs. 1,200 are said to have been advanced by Israr Muhammad as loan. The story is that Israr Muhammad happened to be at Hala and as the plaintiff was in need of money he asked Israr Muhammad to advance him some money and Israr Muhammad gave him Rs. 1,

200. The plaintiff had not asked Israr Muhammad to bring this money to Hala, and it is by chance that Israr Muhammad happened to be there or to have the money with him. The Plaintiff should have known very well what he had to pay, and it would be surprising that he went to Hala only with Rs. 1,000 and with? out making any arrangements for more money. While our rejection of the evidence as to payment does not necessarily lead to the conclusion that no part of the consideration was con?tributed by the plaintiff, it appears to us that we cannot accept the sources of money which are alleged by the plaintiff. He may have his own reasons for concealing the true source of money. It has also to be pointed out at this stage that the plaintiff had not, at the time when 40 acres of land were purchased at Shahdadpur, paid any amount towards the consideration. It was only at Hala that he paid Rs. 2,

100. Khalifo Aboo has stated that towards the amount of Rs. 600 paid at Shahdadpur the parties had contributed equally but this is belied by the statement of the plaintiff himself and has no effect except that it makes the state?ment of Khalifo Aboo less worthy of credit. So far as the evidence of admissions is concerned there is no good ground for rejecting the evidence of Rupchand and Amin Muhammad Shah. Rupchand is a big landlord paying Rs. 1,00,000 as land revenue and is the owner of three ginning factories. He has no particular connection with the plaintiff and there is nothing at all on the record to show that he is interested in making a statement in his favour. Amin Muhammad Shah is also not shown to have any interest in making an incorrect statement. So far as Haji Miran is concerned we would not rely upon his statement for he has deposed even in respect of the land purchased from Juman Ghaho and as would appear later in this judgment we are not prepared to accept that that land was also jointly owned by the plaintiff and the deceased. The strong point of the plaintiff is his undisputed possession of the land. If this possession be not explained by the defendants it would be good evidence m support of his own story as to the reason for this possession. The defendants alleged that he was a kamdar of the deceased. If this were so that would be an explanation of his possession though not a very probable one, because a kamdar after all is not in possession of the land which he manages anal the moment he tries to assert his possession one would expect that his employer would take some kind of proceedings against him. Of any such proceedings there is no suggestion on this record. It is not necessary to consider the effect of his having been a kamdar for it is clear from this file that the plea of the defendants is untrue. It is only Mst. Lal Khatun who, just in order to support her written statement, deposes that the plaintiff had been a kamdar. There is no evidence to supports her. Jani Beg (D. W.) the brother‑in‑law of Mst. Lal Khatun says the plaintiff was never a kgmdar of the deceased. Din Muhammad (D. W.) says he has never seen the plaintiff on the land in dispute. He had himself been a kamdar of the deceased and he even alleges that he was for some time a kamdar for the land in dispute. Noor Muhammad (D. W.) cannot say whether the plaintiff has ever been in posses?sion of the land in dispute after the death of Pir Fateh Muhammad Shah. There is no statement at all by any witness that the plaintiff was a kamdar of the land and had, by taking advantage of that position, retained the possession and made a false claim. If he was never a kamdar of the deceased and he is in possession and there is no allegation of forcible possession, an inference in his favour is apparent. We have considered this matter quite apart from the provisions of the Evidence Act, but we may point out that the case is covered by section 110 of the Evidence Act, according to which there is a presumption in favour of the title of the person in possession. It is not necessary for the application oil section 110 that claim should be as sole owner. The person in possession can put forward a claim as a co‑sharer or a person F with a limited title, and possession will raise a presumption as to such title. We want to stress however that our conclusions are based on a consideration of the entire evidence and not on an application of the presumption raised by section

110. The conduct of the plaintiff also supports him. He had approached the Court of Wards for joint payment of the instal?ments and for recognition of his own share. The matter having been referred to the Mukhtiarkar there was an exhaustive enquiry and a report in his favour. When the Court of Wards did not accept his claim in respect of the report he filed an appeal to the Government. The Court of Wards gave this land on lease to one Nawab Haji Muhammad Ali. The lessee filed a suit against the plaintiff but failed. The plaintiff is in possession of bills of assess?ment and a certificate of remission of land revenue relating to the land in dispute. Considering all this we would hold that the plaintiff' has succeeded in proving an agreement between him and the deceased for joint purchase of the Government lands. However, we have relied mainly on the factum of his possession and the statement made in his favour by Pir Allan the brother of the deceased and we are not prepared to grant to him more than what is the necessary consequence of the factum of his possession and the correctness of the statement of Pir Allan. Pir Allan has made a statement only with respect to the land which had been abandoned by the Chands, i.e., 150 acres purchased at Hala. The fact that the plaintiff is in possession of the land in dispute, though it shows title in some land, does not necessarily lead to the con?clusion that in the whole of this land he is joint owner because all the lands in suit are adjacent to one another and the possibility cannot be excluded that being legally in possession of a major part of this land he also contrived to get possession of the rest posses?sion being only through tenants. In any case the circumstances relating to the purchase of 40 acres and the purchase from Jhuman Ghaho are such that we do not find it possible to accept the ownership of the plaintiff with respect to these lands in spite of the factum of possession. So far as the land purchased at Shahdadpur is concerned (that is, the land abandoned by Jewat Ram)‑ it has to be observed that according to the statement of the plaintiff himself he had not made any payment at the time when it was purchased. The first time he made any payment was at Hala about a month and a half or two months after. If the deceased had paid the whole of the amount payable in the first instance from his own pocket we cannot accept that the land has been purchased benami to the extent of one‑half. If the deceased were to make the plaintiff a co‑sharer subsequently there would have to be a transfer by a registered instrument as the Transfer of Property Act is applicable. So far as the land purchased from Juman Ghaho is concerned there is in the first instance the circumstance that at the time .when this land was purchased the plaintiff had retired from service and there was no motive for a benami purchase. When questioned as to why this land was purchased in the name of the Pir, the plaintiff says it was because the land was adjacent to the other joint land and also because the deceased at that time was seriously ill. If the deceased was seriously ill that was rather a reason for not purchasing the land in the name of the deceased alone. Then, the evidence as to payment of the plaintiff's share of consideration is so discrepant and so unsatisfactory that it leads to an adverse inference. While the plaintiff himself says he made payment only on the day‑ the sale deed was executed, his witnesses, that is, Jhuman and his son, say they. had already received Rs. 1,500 from the plaintiff. The amount that the plaintiff says he paid is also insufficient to meet half the expense if we take into consider?ation the stamp and registration fees, which it is not denied by learned counsel for the respondent were to be paid by the vendee. A reference to the stamps for the sale deed shows they were pur?chased by the deceased. We would also repeat that Pir Allan does not refer to this land. As a result, we accept this appeal to the extent that we dismiss the suit with respect to survey number 5/4, 5/1, 2, 3, 6/1 to 3, 3‑A, 4, 7/1,1‑A, 9/1‑2, 2‑A, 1‑A, 10/1‑2 mentioned in Schedule A attached to the plaint and the whole of the land mentioned in Schedule B. The suit stands decreed with respect to the rest of the land. Parties should bear their own costs, throughout. A. H.??????????????????????????????????????????????????????????????????????????????????????? Appeal partly accepted.