P L D 1961 (W (PLP)

He then referred us to Exh. 49, a notice published in the "Sitara Sind" in which the respondent had admitted that he had agreed to sell the land to appellant No.

1. The learned counsel referred us to several notices exchanged between the parties published in the local newspapers of Dadu to show that thereafter tie parties must have met. and negotiated and settled for the sale of the land. In our opinion the circumstances referred to by the learned counsel are not at all of such a nature which could lead to the conclusion that the documents Exhs. 48 and 45 are genuine documents. There is intrinsic evidence in these documents which clearly prove that they have been manipulated and forged. The conclusion of the learned Subordinate Judge in respect of Exh. 48 are to the following effect: "A look at the stamps does convince me that this allega tion may not be incorrect. One of the stamps bears the full name "Hussain Bux" while the other stamps bear the words "Bux Panhwar" This suggests as that the word "Hussain" from the whole name Hussain Bux was written on some other stamp which is not before us. One of the stamps seems to be collected or removed by the defendant from some other prior receipt executed by the plaintiff and in like manner the other receipt also appears to have been removed from some previous receipt signed by Hussain Bux. Both these receipts were then affixed on Exh.

48. The plaintiff could never sign as 'Hussain Bux Panhwar.' He could sign as Hussain Bux Panhwar as he has signed the other documents like Exhs. 45, 46 etc. The attestation by witnesses is with some other pen and some other ink. I feel it must be after the document was written or forged. The attesting witnesses are the yesmen of the defendant both of them being Chohans." We have also examined the document (Exh. 48) and in our opinion the observations of the learned Assistant Judge are fully justified. The signatures of the respondent on this document are on the two stamps of anna one each. On one of the stamps full name of Hussain Bux appears and on the other stamp' Bux Panhwar appears. This clearly suggests that the signatures of the respondent obtained one some stamps have been affixed on this document: otherwise there was no question of the respondent signing Hussaito Bux, Bux Panhwar. We have closley examined the signatures of the respondent and are in full agreement with the observations of the learned Assistant Judge. The finding of the learned Assistant Judge in respect of Exh. 45 is as under "The other receipt Exh. 45 is of course admitted to have been signed by the plaintiff but he says that it was only for two hundred rupees and not for 3,

200. This receipt shows that the plaintiff had received Rs. 3,200 for sale of plot land. It on the contrary shows that this land was the property of the plaintiff and the defendant was going to purchase it from him. The receipt does not show that the land as a matter of fact belonged to the defendant and not to the plaintiff. This receipt is also suggestive of some mischief. There are. two different things in the body of the receipts. The underlined words Rs. "3,200 in words three thousands appear to be added afterwards. Then again another underlined word is 5,000 I think originally it was 1,

500. This five thousand word is bracketed where the other figures in the receipt are not bracketed. Over digit one of 1,500 bracket has been given but in spite of that the Bux digit ore can be seen clearly. Two dots are linked together and the third dot is separate. This shows that this third dot is in addition. This fact is corroborated by Exh. 48 (the forged receipt) which I have already held as a made‑up receipt and is about two months prior to Exh.

45. Even Exh. 48 shows that Rs. 1,500 were paid in cash to the plaintiff and not Rs. 5,000 as Exh. 45 contemplates." We have also examined this document. In our opinion the observation of the learned Subordinate Judge are fully supported by the document itself. There is no doubt in our mind that the figure `3' has been added to `200' and that the words three thousand two hundred are also added afterwards. It also appears to be correct that originally the figure in the receipt was Rs. 1,500 but this figure was bracketed. Over digit one bracket was drawn and figure `0' was added after the two zeros of 1,

500. We entirely agree with learned Assistant Judge that Exh. 48 is a forged document and Exh. 45 was manipulated by appellant No.

1. On these findings the contention of the learned counsel for the appellant that the respondent admitted plots Group A as belong ing to appellant No. 1 has no legs to stand on. On the other hand Exh. 45 leaves no doubt in our mind that plots Group A really belonged to the respondent, otherwise there was no question for appellant No. 1 to enter into an agreement of sale in respect of these lands and to pay Rs. 200 towards it. There is much force in the contention of Mr. Sohail, the learned counsel for the respondent, that the respondent was quite honest in his dealings with appellant No. 1 and on account of his protracted illness and other circumstances was so much frustrated that he even agreed to part with property plots Group A to him for a paltry considera tion of Rs. 1,500 but appellant No. I being a greedy person did not take advantage of it as he wanted to swallow the whole property without paying anything to him. Otherwise there is no explana tion for keeping back application (Exh. 46) and for not enforcing this agreement. The contention of Mr. Sohail that Exh. 45 was interpolated because appellant No. 1 knew that this agreement being for inadequate consideration might be attacked in a Court of law is quite plausible. This is a strong ground for accepting his contention that for this reason the consideration was changed into Rs. 5,000 instead of Rs. 1,500 and to cover up and safeguard appellant No. 1's interest in respect of the deficit amount of Rs. 3,000 the amount of Rs. 200 was converted into Rs. 3,

200. In the light of the above discussion, the learned Court below was fully justified in not taking into consideration these documents in support of appellant No. 1's contention that plots Group A land was purchased benami in the name of the respondent as benamidar. After careful consideration of the evidence of the parties, we are satisfied that the appellant No. 1 failed to discharge the burden that Group A land was obtained benami in the name of the respondent. It is now a well established rule of law that the person who impugns the apparent character of a transaction must show something to establish that it is a benami transaction and in cases where third parties are affected, Courts require strict proof of benami purchase. In this case not only is it proved that the Ali source of paying the first instalment came from the respondent but the document relied upon by the appellants further proves that the appellant No. 1 on several occasions dealt with the respondent as owner of this property. There circumstances are incom patible with the very notion of benami transation. Mr. Dingomal laid much stress on the circumstances that this property throughout was in possession of the appellant No. 1, who not only managed and improved the lands but also paid all subsequent instalments to the Barrage Authorities. In our opinion none of these circumstances goes against the real nature of the transaction. The respondent's explanation that appellant No. 1 did it under an agreement as will be presently shown, fits in with the circum stances proved in this case. Mr. Dingomal's admission that in Sind instalments for Barrage lands are generally paid out of the produce of the land is a strong factor against the plea of the appellants. In conclusion we are satisfied that the finding of the trial Court that plots Group A land belonged to the respon dent is based on good and sufficient evidence and no exception can be taken to it. The next question for consideration is whether in Group B land was obtained by appellant No 1 as benami or appellant No. 3 obtained them for the benefit of Fazal Shah, minor son of appellant No

1. The appellants' case is that this land had nothing to do with appellant No. 1 and were obtained by Ehsan Shah for the benefit of Fazal Shah. Exh. 114 to Exh. 117 are Kabuliats of these lands. Both of them are signed by appellant No. 1 on behalf of his minor son and not by Ehsan Shah. Exh. 115, an agree ment date 10‑1‑1951 (sic ), shows that Ali Akber Shah agreed to take this grant on behalf of his son. It is also an admitted position that throughout this land remained in possession of Ali Akbar Shah. The statement of Ehsan Shah leaves no doubt in our mind that he allowed his name to be used in this connection for obliging appellant No. I. He was unable to give any details about the lands or payment to the Barrage Authorities and even of the water‑course which irrigates the land in dispute. He admitted in his statement as Exh. 118 that he had not produced the L. R. receipts or instalment receipt or bill although he had them. Apparently this man had no means to obtain the property in dispute. He admitted that Ali Akbar Shah was his cousin's son and the learned Assistant Judge was perfectly justified in comment ing that he would not take such valuable property for the benefit of one of his distant relatives. It seems to us that Ehsan Shah was a tool in the hands of Ali Akbar Shah, who used his name because as Government servant, without the permission of Government, he could not purchase land in his name or in the name of his minor son. The fact that in 1953, after resigning from service, he executed the agreement under his signature fully supports this view. It is quite plain to us that the appellants had set up a false case in respect of these lands in order to defeat the claim of the respondent that these lands were procured under a prior agreement between him and appellant No.

1. In the face of such damaging evidence Mr. Dingomal conceded that the learned Assistant Judge's finding in respect of plots Group B is immune from attack. The last and the most important question in this appeal is Bux whether the finding of the learned Assistant Judge that both plots Group A and B were purchased in pursuance of the alleged agreement and are the properties of both the respondent and appellant No. 1 in equal shares is correct or not. Appellant No. 1's case that plots Group A belonged to him and the respondent had nothing to do with it, neither found favour with the learned Assistant Judge nor with us. The case set up by him is absolutely untenable. But this question is not free from difficulty. The grievance of Mr. Dingomal that the learned Subordinate Judge has disposed of this question very lightly and failed to consider all the evidence on this dispute is quite legitimate. The learned Assistant Judge in this connection observed as under :‑ "The other proposition is therefore more probable that this land as well as the land purchased in the name of defendant No. 2 C (Plot B land) was taken up by the plaintiff and the ‑ defendant on the basis of 50‑50 partnership." He also relied on the fact‑ "The plaintiff has sworn to his partnership in plot B land but the defendant has not specifically denied this fact but has tried to show that he had no concern in plot B land at all." The learned Assistant Judge is very much influenced by this fact and has also been influenced by the evidence of Mr. Atta Muhammad Kazi, Sub‑Judge, and Allah Ditto Khan, Canal's Assistant, and has arrived at the following conclusion: "I hold that plot A land was never purchased benami, It was purchased by the plaintiff in his own name for his own self. He had entered into an agreement with the defendants that the land as well as the land which the defendant would purchase in defendant No. 2's name would be divided into two equal shares between the plaintiffs and the defendants. The produce was to be taken by defendant No. I who was to manage the land as plaintiff was in service. The defendant would pay the instalments and the land revenue and account for the rest to the plaintiff. The land in suit is therefore the property of both . the defendant and the plaintiff, in equal shares." Mr. Dingomal strongly urged that there is no basis for such conclusion and drew our attention to various circumstances in the case to convince us that no such conclusion could be reached. He urged that even on the finding of issue No. 1 against appellant No. 1 it was at best a case of partnership in respect of Group A lands and not in respect of both the Groups. The learned counsel admitted that this case was not set up by the appellants but pressed that if this conclusion can be reached from the . evidence on the record, it should not deter us from giving a corrept finding. The appellant No. 1 in this case no doubt is at a great disadvantage because not only did he fail to set up this plea in the alternative but his evidence is full of tissue of lies and at every stage he had suppressed facts and no reliance can be placed on his word. But it appears to us that in spite of these disadvantages And the finding of the Court on this point against the appellant, the question before us is whether the respondent had adduced reliable evidence is support of the alleged agreement, and if so, whether wholly' or partially. Now the respondent's version of the circumstances under which the alleged agreement was entered into between the contesting parties as disclosed in his statement is to the following effect. That he was a Taluka Head Munshi in the Revenue Department, Dadu District, and appellant No. 1 was a Tapedar. They were just like brothers in and before 1950 and had agreed to take up land from Barrage Authorities on half and half basis, in Deh Vehji, Taluka Kakar. It was originally granted to Hindus but was cancelled as only one instalment from ten was outstanding against them and they had migrated, to India. This was good land in which paddy and wheat etc., were cultivated. He being in the bead office pursued this matter and the land in dispute was obtained through his efforts about the same time. Since he bad obtained permission from the Government to purchase land, plot Group A land was obtained in his name and he contributed Rs. 860 towards its first instalment. But as appellant No. 1 had no such permission, plot Group B land was obtained in the, name of Fazal Shah, his minor son, and he contributed Rs. 785 and Rs. 545‑8‑0 under Exh. 115 and Exh. 116 respectively towards the first instalment. These lands being with' refugees possession could not be obtained. Ali Akber therefore resigned in 1953 from service and the lands were left in his possession for management. He was to get the same cultivated and pay the instalments and share the produce in equal shares with him. We have at length heard the learned counsel for the parties and have come to the conclusion that there is a ring of truth in this version. It is apparent from correspondence Exh. 39 and Exh. 40 that after partition the respondent was negotiating for the purchase of Hindu evacuee lands, which ultimately formed part of both the groups. The respondent made a categorical statement in this respect and appellant No. 1 did not deny this fact on oath. The letters Exh. 51 and Exh. 42 dated 10‑8‑49 and 5‑2‑50 respectively prove that both of them were contemplating to take lands jointly from the, Barrage Department. Exh. 51 is a letter of the respondent produced by appellant No. 1 and its following portion throws a lot of light on respondent's efforts to secure land for the benefit of both the contesting parties through his influence: "Secondly, once you may meet me and give me an applica tion for any four 'athas' admeasuring 16 acres out of your land so that I may get it granted. It will cost Rs. 200 more, which I shall pay up. Half amount is to be paid on the spot and half in the next year. I shall pay up this amount. This correspond ence. shall be sanctioned in such a way that the paddy crop could be cultivated next year. Then this land of yours, shall be on the same level with rice canal land. I give you an honest advice. Hoping you to be happy. You will be bene fited from my help, beyond any expectation. I do not know how long shall I continue on this table." Exh. 42 is a letter of appellant No. 1 and its contents speak volumes about the joint adventure of securing lands from the Barrage Department. Some of its portions are reproduced below: "I hope, you would have finished a good deal of work in respect of Deh Vehji. I have already requested you in the letter for early compliance. You may also inform me from time to time about the progress. In this month of February, an offer is to be given in respect of the blocks, other than those, which were on `Khas Mokal'. After that, further amount is to be deposited, on the harvest of Rabi‑crop. The Assistant Revenue Officer is scheduled to camp at Dadu from 6th to 20th. So, you may kindly approach Mr. Amanullah personally and obtain the order for water‑arrangement and Kateha‑nazatnama, and also approach him in respect of Block Nos. 625/1‑4, 624, 684/1 to 4, 685/1 to 4, 686/1 to 4 and No. 20 and 641/1 to 4, 642/1 to

4. You may also approach the Barrage Tapedar of that beat in this connection. Paper is torn). Dear brother, so far water is concerned we shall have to face a great hardship. Kindly do approach them daily whenever you get the time and remind them from time to time, till I come on the 20th. Hope I shall come and pay the money towards 'Khan‑Mokal' and `Turio'." "You may also remind Mian Allahditto from time to time and request him for preparing Form MA statement for me. Kindly inform me about the arrival of ‑A. C. Kindly give me all the details. As soon as I shall come on the 20th, I shall finish up the work of Ijazatnama and then submit an applica tion for paddy. Kindly inform Divan Motoomal to send you the correspondence in respect of fine in the name of Ali Ahmad Shah, lying with him, or I shall come personally and have it from him." "My uncle Ahsanshah might be coming here in connection with injunction. Kindly do the needful to him wholeheartedly, and also correspond with Mian Noor Mohammad in that connec tion so that he may not find any difficulty. Kindly write the particulars by the returning post on the following address." Then we find from P. C. Exh. 61 that simultaneously two applica tions were made : one by the respondent and the other by appellant No. 1 in the name of Fazalshah. The application on behalf of Fazal Shah at page 85 of the paper‑book includes most of the Group A and Group B land. Similarly the statement of Hussain Bux at page 87 and 88 of the paper‑book made reference to the application of Fazal Shah in the following terms: "The said grant has been finally cancelled after 31st December 1949. The said Hindu has migrated to India and his above‑mentioned land has not been allotted to any refugee. Such certificate is attached with the correspondence of Fazal Shah relating to full rate grant. The copy thereof is submitted herewith." The grants of both the group lands were made about the same time and the evidence on the record fully established that these grants were secured solely through the efforts of the respondent. But as indicated earlier in another connection the parties could not obtain possession of those lands, which were with the refugees. This required exclusive attention and thus we find that All Akbar Shah resigned from service in 1953 and immediately thereafter Ali secured their possession. The circumstance that the mutation of both the group lands was effected on one date namely 5‑4‑50 in the revenue records vide Exh. 34 further strengthens the case set W up by the respondent. Moreover, both the group lands, were treated as one compact area by Ali Akbar Shah is evident from the sanction (Exh. 74) obtained from the Collector of Dadu. It shows that appellant No. 1 obtained joint sanction for both groups A and B lands from the revenue department' for the removal of rice restrictions from certain survey numbers included in them. There ‑is thus overwhelming evidence in support of the learned Assistant Judge's finding that there was joint adventure in respect of both the group lands and they were treated as part and parcel of one compact area. Mr. Sohail, the learned counsel for respondent, further referred us to an agreement Exh. 38 dated 8‑3‑1955, executed by the appellant No. 1, who not only denied its execution, but also his, signature over it. We have compared appellant No. 1's signature on it with his admitted signature on the record, and fully agree with the learned Assistant Judge that this document bears appellant No. 1's signature. The circumstances in which this document was obtained in respondent's words are as under:- "In 1955, I demanded correct accounts from defendant No.

1. I insisted on some writing. After some instance he executed them, an agreement which I produce Exh.

38. By this agreement he had agreed that he would pay all the Government dues in respect of 48 acres taken by me and give me half the remaining, may keep half for himself in lieu of management. He refused to give me half in the land taken up by him in his son's name telling me that he was a minor and therefore he gave me writing only in respect of 48, acres taken up by me. I also wanted to safeguard at least my 48 acres as he was in possession." We have found some support of these circumstances in the two letters of the respondent Exhs. 56 and 53 produced by appellant No.

1. The first letter shows that by this time differences had arisen between the contesting parties, and the respondent com plained to appellant Ali Akbar Shah in these words: "But it is not known why the Satan has so much over‑powered you that you are not doing anything for my benefit. God will help." The second letter, Exh. 53, dated 28‑11‑1954 shows beyond doubt that about that time good sense had come back to appellant No. 1 and he had suggested a via media to make settlement in respect of Deh Vaiji lands. The terms of this letter, reproduced below, gives the background of the arrangement entered under Exh. 38: "I have got, an urgent work with you, i.e. I have to settle the matter in connection with Deh Vaiji. Life is uncertain. At present you are very kind to me, but I do not know the trend of time. Now you may kindly come to Vaiji so that I may meet you, because I find difficulty to visit your village. (The sentence is blurred with ink, hence illegible). All the conditions are accepted. The land shall remain in your possession. Now you may kindly meet me so that we should arrive at such a decision by which the `khatta'' should remain in my name and the land in your possession. There is no need to inform anybody else. I am very much grateful to you. I am sending you my sister's son to you for that purpose. Kindly meet me in the evening or tomorrow. Kindly save me inconvenience." A perusal of Exh. 38 makes it clear that appellant No. 1 wanted to safeguard himself in respect of Group B plots, and with this end in view made it clear in it that prior to this writing there existed no written or secret agreement between the parties. This is followed by a recital that land comprising 48 acres in Deb Vaiji was taken by Hussain Bux, and he shall also further take 12 acres on the same watercourse. The contention of Mr. Sohail that the recital of this fact proves that under this agreement the parties were effecting private partition of both the group lands and Group A land was given to the respondent and it was for this reason that it was stipulated that he would make up the deficiency of 60 acres with the appellant No. 1 by taking over furtherl2 acres of land on the same watercourse has much force. This term is full of significance. Otherwise ‑there is no other explanation for putting such term in this document. Then follows the term that Ali Akbar Shah shall look after the said lands, pay the land assessment and instalments, and out of the balance, he and Hussain Bux shall receive half to half. Appellant No. 1 under its terms also made himself liable for the water of the land, the improve ment and the cultivation of the whole land for which respondent and his successors shall be grateful to him. This document has an important bearing on the dispute between the parties. It leaves no doubt in our mind that the parties under this document separated from each other in respect of the joint adventure and agreed that thereafter Group A lands will only belong to the respondent and appellant No. 1 would manage these lands on the terms and conditions mentioned therein. In these circumstances the contention of Mr. Dingomal that the Assistant Judge has based his findings on the isolated word of the respondent, unsupported by any evidence, has not impressed us. On the existence of the above‑mentioned. documentary evidence, in our opinion, the evidence of P. Ws "Atta Muhammad Kazi (Exh. 69) and Allahditta Khan (Exh. 63) was bound to assume much importance. P. W. Allahditto Khan is the same gentleman who is referred to in (Exh. 48) appellant Nos. 1's letter dated 5‑2‑1950. These witnesses are disinterested persons and we are satisfied that the learned Assistant Judge was fully justified in accepting their statements that both Ali Akbar Shah and Hussain Bux admitted before them that they had taken land in partnership in Deb Vaiji. P. W. Allah Ditta in' 1950‑51 was the Canal Assistant of the beat in which the land in dispute was cultivated. His statement that both the parties approached him for water facilities in respect of the land in Deb Vaiji, which they contemplated to take up together in partnership support the respondent's case. His further statement that from time to time both used to come in connection with water for this land also lends support to the respondent's case that both group lands were taken in partnership by the parties. The appellant No. 1's bare denial in the face of the evidence discussed above was rightly rejected by the trial Court. Mr. Dingomal, however, urged that the circumstantial evidence and the other evidence referred to above only establishes that there was partners between the contesting parties in respect of Group "A" land. He supported his argument by draw ing our attention to a number of notices exchanged between the parties in the year 1957 in the local vernacular papers of Dadu and some other documents for showing that between 1955 to 1957, at no stage .the respondent laid any claim on plots Group B pro perties. The correspondence through the newspapers between the contesting parties stated on the publication of a public notice dated 16‑7‑1957 (Exh. 5‑A) at the instance of the respondent informing all concerned that he was the sole owner of Group A property. This was consistent with the agreement arrived at between the parties under Exh.

38. This was resented to by appellant No. 1 and Mr. Dingomal is right that thereafter some rapprochement was brought about between the parties, and the respondent agreed to sell these lands to appellant No.

1. But the fact remains hat, appellant No. 1 did not abide by the agreement, and on 24‑7‑1957 published two notices (Exh. 50) in Dadu Gazette dated 29‑7‑1957 and challenged the right of the respondent to these properties. Thereupon the respondent replied to these notices by notice dated 1‑8‑1957, Exh. 49, published in the issue of the `Sitars‑e‑Sind' dated 9‑8‑1957, and informed appellant No. 1 that the very fact that he had negotiated for the purchase of these properties with him, establish his title to them, and the notice, Exh. 50, is full of perversion of facts. But there was further rapprochement between them, and the respondent in pursuance of the agreement of, sale, even made an application Exh. 46 on 14‑8‑1957 to the Revenue Authorities for mutation of appellant No. 1's name in the Record‑of‑Rights, which was endorsed for usual report and was handed over to appellant No.

1. But he kept this document, and did not fulfil his part of the contract. This led the respondent to publish another notice in `Nawai Sind' (Exh. 6‑A) dated 13‑10‑1957, cancelling the agree ment (Exh. 45) to sell the land, to appellant No.

1. We have considered the full effect of these documents, and, in our opinion, they do not lead to the conclusion that there was no partnership between the parties in respect of Group B land. They are quite consistent to the arrangement entered under Exh. 38 between the contesting parties in the year 1955. Under this agreement, the respondent had agreed to take Group A, plots, and his subsequent conduct in not asserting any claim against Group B plots shows that he was asserting his claim on its basis. Mr. Dingomal challenged the validity of this document on the ground that it was not executed' by appellant No.

1. This point has already been discussed. He further challenged its validity on the ground that the respondent had made some inter polation in it, and some of its portions are erased. But unfortu nately appellant No. 1 has completely denied its existence, and there is nothing in his evidence to suggest in what respect these erasures have effected the material terms of the agreement. This contention, therefore, has no force. We entirely agree with the learned Court below that this is a din, typical case in which the proverb that money and, property are the death knell of friendship, has proved itself true.. The conduct of appellant No. 1 in this case is most unfortunate. His efforts throughout were to get the whole property by foul means. On the other hand, the respondent being a T. B. patient for a sufficiently long time, was anxious to settle the dispute in respect of the properties on any terms. At first he agreed to satisfy his claim out of Group A plot on the terms contained in Exh. 38, and later on in disgust even agreed to sell these lands for a nominal price. But appellant No. 1 never reacted favourably, and used these documents as a dodge to deprive the respondent of his legitimate share in the land and used them as a nilan (sic) for recovering certain amounts advanced on loans to him. The contention of the appellants' counsel that the respondent never shared any produce of‑these lands is also not borne out by the evidence on the record. There are a number of letters of the respondent on the record which show that he had shared its produce in the shape of grain. We also believe his statement that appellant No. 1 on several occasions paid him even cash in this connection and obtained receipts. Appellant No. 1's explanation that these petty amounts were advanced always as loan in the circumstances of the case, has not impressed us. Having regard to the documentary and other evidence discussed above, we are satisfied that the learned Court below finding that both Group A and Group B lands were obtained in partnership by the contesting parties, is fully justified and no exception can be taken to it. The question what relief should have been granted to the respondent in this case presented some difficulty to us. The question whether the respondent should have been granted a decree for partition of Group A and Group B plots by metes and bounds or whether he should be awarded only Group A plots in lieu of his half share in the properties in dispute has received our anxious consideration. It appears to us that the respondent having himself set up the agreement, Exh. 38, in support of his claim, in the absence of any clear repudiation on his part of this C agreement, and having once accepted this mode to satisfy his claim in the property in dispute, cannot be allowed to substitute ‑4 by asking a general relief for partition. In the circumstances of the case we also consider it as a fair basis for partitioning the joint landed properties between the parties. Accordingly we reverse the decree of the Court below in this respect and hold that the respondent will get Group A plots in lieu of his share in the properties in dispute by way of partition on the condition that appellant No. 1 will render accounts to him of the income of the produce of these lands from Kharif 1955‑56 till the delivery of their possession. Appellant No. 1 will be entitled to adjust any amount paid by him after the above‑mentioned period towards land assessments and instalments of these lands. Out of the surplus income of this period, the appellant will be entitled to retain half and the balance will be paid to the respondent. In the result the appeal is partly allowed subject to the above‑mentioned terms. The appellant will bear the costs of the respondent in this appeal. K. B. A. Appeal partly accepted.