P L D 1967 Dacca 203 (PLP)

A. SUBHAN CHOUDHURI, J.‑This appeal is at the instance of the defendants and it arises out of a suit for declara tion that the kabala executed by plaintiff No. 1, in favour of the defendants is a void document and that the plaintiff No. 1 being a benamdar of plaintiff No. 2, he had no right to sell the disputed lands to the defendants and that the kabala executed by the plaintiff No. 1 in favour of the defendants is not binding on plaintiff No. 2, being a void document so far as plaintiff No. 2 is concerned. There was also a prayer for a permanent injunction upon the defendants restraining them from getting the kabala registered and from entering upon the suit lands. .

2. Plaintiff No. 1 Mofizur Rahman Sheikh is a son of plaintiff No. 2 Hajari Sheikh. Their case, briefly stated, is that they were formerly residents of village Mollapara in the district of Nadia and have all along been in joint mess. During the last communal disturbance plaintiff No. 2 exchange his properties in India with those of one Prionath Biswas in Pakistan and after making such exchange the plaintiff No. 2 migrated to Pakistan, while Prionath migrated to India. ' Plaintiff No. 2 took possession of Prionath's properties left behind in Pakistan by virtue of the aforesaid exchange.

3. A Deed of Exchange was executed at the time of exchange of the properties but was not registered at the time of its execution. Prionath died thereafter and his heirs executed a Power, of Attorney in favour of plaintiff No. 2 who, in his return, executed three Powers of Attorney in favour of all the heirs of Prionath. Plaintiff No. 1 had no property in India and did not acquire any property in Pakistan, on the basis of any exchange with Prionath. Plaintiff No. 2 executed some benami kabalas in the name of his sons in respect of the properties obtained by him by way of exchange and no consideration passed under the said kabalas, nor was possession delivered to his sons. The original kabalas remained with plaintiff No. 2.

4. Further case of the plaintiffs is that plaintiff No. ‑1 was suffering from fever, cough and cold and defendant No. 4 Dr: Nurul Huq advised him to get his chest X‑rayed and in pursu ance of that advice the latter went to Kushtia and got his chest X‑rayed. Defendant No. 4 took the thumb‑impression of Plaintiff No. 1on the same plain papers and forms on the pretext of procuring medicines at controlled price. Thereafter the defendants took plaintiff No: 1 on 31‑12‑57 to the shop of defendant No. 2 Safatullah and forcibly took his thumb impression on some stamp papers and plain papers. On the following morning plaintiffs went to Alamdanga Police Station and got a C. D. entry made and thereafter they went to Kushtia Police Station and lodged another information which was also recorded in the General‑ Diary,

5. The plaintiffs further alleged that the defendants fabricated a kabala purported to have been executed by plaintiff No. 1 in their favour in respect of the disputed lands with the help of the thumb‑impressions forcibly taken by them from plaintiff No.

1. As plaintiff No. 1 has no property of his own, he is maintained by his father, 'the plaintiff. No. 2 and he had no right to sell the disputed lands to the defendants.

6. All the defendants, four in number, filed a joint written statement and contested the suit. Their case, in short, is that the disputed properties which comprise agricultural lands and a homestead belonged to plaintiff No. 1 who contracted to sell the same to them and in pursuance of that contract. On 15‑9‑1957, plaintiff No. 1 received a sum of Rs. 6,100 from the defendants and executed a bainanama in favour of the latter The balance of Rs. 1,900 out of the entire consideration of Rs. 8,000, was paid subsequently and plaintiff No. 1 executed kabala in favour of the defendants. The defendants filed the kabala in the office of the Registrar for registration and a case was started under section 7 of the Registration Act in the Registration Office. 'The plaintiffs did not appear in the registration office on the date fixed i.e., 18‑3‑58, whereupon an order for registration was passed and accordingly the kabala was registered. The defendants contended that plaintiff No. 2 did not make any exchange of the properties with Prionath and he did not get the disputed lands on the basis of, any such exchange and that the story of the plaintiffs that the defendant No. 4 medically treated the plaintiff No. 1 and obtained the thumb‑impressions of plaintiff No. 1 on plain papers or forms in untrue. The defendants also denied the allegations that they took the thumb‑impressions of plaintiff No. 1 on some stamp papers and plain papers; they asserted that that plaintiff No. 1 himself applied to the proper authorities in Chittagong for permit or income‑tax clearance certificate for the purpose of execution of the kabala in favour of the defendants and this permit was received by post from the Income‑tax Officer at Chittagong.

7. Defendants affirmed that plaintiff No. 1 himself purchased the disputed land from Prionath along with many other properties and the plaintiff No. 2 made the sale as a mukhtar of Prionath. Plaintiff No. 1 sold away many other properties to other persons out of those he obtained by purchase from Prionath.

8. Defendants further asserted that they are, bona fide purchasers for value and the kabala executed by plaintiff No. 1 in their favour is a genuine and valid document; that they got possession of the entire disputed lands except the homestead standing on the disputed land, and as regards the homestead the plaintiff No. 1 agreed to vacate it within a month from the date of sale but subsequently he did not quit the homestead.

9. Upon the pleadings the following issues were established "(1) Is the suit maintainable as framed? (2) Has the plaintiff No. 2 any right, title and interest in the suit properties? (3) Is the kabala executed by plaintiff No. 1 in favour of the defendants for the suit properties void as alleged? (4) Is the suit barred by the principles of estoppel? (5) Are the defendants bona fide purchaser for valuable consideration without any notice of the claim of plaintiff No. 2 ? (6) Are the plaintiffs in possession of all the suit properties ? (7) What relief, if any, are the plaintiffs entitled to?"

10. The issue with regard to estoppel was not pressed and the trial Court decided it in favour of the plaintiffs.

11. The learned Subordinate Judge after elaborate discussion of evidence on the point held that the plaintiffs' case that the kabala Exh. A(4) was fabricated by the defendants with the help of some stamp papers on which plaintiff No. 1's thumb- impression were forcibly taken seemed to be false and the evidence of D. W. 2 Anukul Chandra Chakraborty and D. W. 3 Manindra Nath Ghose that Mafizur Rahman gave his thumb impression on the bainanama Exh. C and the kabala Exh. A(4) seemed to be true, and that, as such, the impugned kabala was not void; but he found that plaintiff No. 2 has his alleged right, title and interest in the suit land. He further held that the defendants are not bona fide purchasers for value without notice. On the point of possession his finding is that the defendants are in possession of the disputed lands excepting the homestead. He also concluded that the suit is not barred under section 42 of the Specific Relief Act and that as such it was maintainable as framed. The learned Subordinate Judge accordingly decreed the suit in part and declared, that the kabala in question is not binding on the plaintiff No. 2.

12. Mr. Ruhul Islam, the learned Advocate appearing for the appellants has taken us through' the records and we have also examined the records ourselves. Plaintiffs examined six witnesses and the defendants five.

13. The first point urged by Mr. Islam is that the defendants having acquired valid title in the suit lands by the kabala in question from the real owner in possession of the properties the plaintiffs are not entitled to a decree. Two of the other points which he sought to make out are of allied nature and involve common questions of fact and law with the first point. Whose two points are that in the absence of materials to prove that plaintiff No. 1 was benamdar of the plaintiffs No. 2, the plaintiffs cannot get a decree in the suit and that in view of the findings of the trial Court that the plaintiffs are out of possession with the exception only of the homestead. the suit is barred under section 42 of the Specific Relief Act and it is not maintainable without payment of ad valorem court‑fee.

14. The learned Subordinate Judge has virtually accepted the position that the bainanama. Exh. C and the kabala Exh. A(4) were executed by plaintiff No.

1. This finding has not been challenged by the other side, inasmuch as it is in favour of the defendants and no cross‑objection has been filed by the plaintiffs.

15. The question which we are required to consider in view of the arguments of the learned Advocate for the appellants as referred to above, are whether the plaintiff No. 1 was the actual owner in possession of the disputed properties or he was a benamdar for the plaintiff No. 2; whether the plaintiffs are out of possession of the disputed lands except the homestead, whether the suit is hit by section 42 of the Specific Relief Act and whether it is maintainable without payment of ad valorem court‑fee.

16. P. W. 2 deposing as P. W. 1 has testified that the kabalas executed by him in favour of his sons (including Exh. A(4) are benami transactions and he did not receive any consideration for the same. Similar is the evidence of plaintiff No. 1 who has deposed as P. W. 6 and stated that he has no property and his father executed a benami kabala in his favour for which no consideration passed. His further evidence is that he has no means to make any purchase and he cultivates his father's land. None of these solemn statements has been challenged by the defendants by way of cross‑examination. This evidence as regards non‑payment of consideration and the benami nature of the kabala goes uncontroverted. Although three of the defendants deposed in the trial Court along with two other witnesses, none of them has said a word in his deposition regarding passing of consideration under the kabala executed by plaintiff No. 2 in favour of plaintiff No. 1 and the alleged real and bona fide character of the said deed.

17. Plaintiff No. 1 was 25 years of age at the time of his deposition in Court on 29‑4‑1960 and the bainanama and the kabala Exh. A(4) were executed on 15‑9‑1957 and 2‑10‑1957 respectively. Plaintiff No. 1 was a young man below 22 years of age at the time of these transactions. It can safely be concluded from all the circumstances disclosed in evidence that he was living under the care and protection of his father without any independent source of income. Not a scrap of paper has been produced by the defendants to show that he had, any means to purchase any property.

18. In their written statement, the defendants sought to make out a case that plaintiff No. 1 himself purchased the properties from Prionath and plaintiff No. 2 merely executed the deed on the strength of the power of attorney executed in his favour by Prionath. The falsity of this story is evident from the Deed of Exchange Exh. 1 which was duly proved and accepted without objection by the defendants. Plaintiff's case that his document could not be registered as Prionath died after its execution and that is why plaintiff No. 2 executed three Ammukhtarnamas in favour of the heirs of Prionath. While Prionath's heirs executed one Ammukhtarnama in his favour is borne out by Exhs.2 to 2(b), the certified copies of three powers of attorneys executed by Hazari Sheikh in favour of the heirs of Prionath and Exh. 2(c), the original power of attorney executed by Prodyat Kumar Biswas and others. These exhibits were accepted without any objection from the side of the defendants.

19. The fact that the Deed of Exchange was executed by Sheikh and Prionath who exchanged their lands in India and Pakistan respectively, positively shows that Hazari Sheikh got the suit lands by way of exchange from Prionath. The document contains recitals to this effect. This case of the plaintiffs is further strengthened by the fact that the heirs of Prionath executed an Ammukhtarnama in favour of Hazari Sheikh. There is not a scrap of paper to support the defence case that plaintiff No. 1 had properties in India and that he made the purchase with his own money. Had he had properties in India, the exchange deed would have been executed by plaintiff No. 1 and not by his father Hazari Sheikh. The contention of the defendants that plaintiff No. 1 was the owner of the properties is believed by the fact that on the admission of defendant No.

4. Dr. Nurul Haq he took lease of the dispensary situated in the homestead from plaintiff No. 2 (vide Exh. 8). Defendant No. 3 Abul Hussain also appears to have been present at the time of execution .of the Deed of Exchange Exh. I, but defendant No. 3 has denied this fact. His house is at Nrisinghapur and Exh. 1 shows that Abul Hussain who attested that document was also a man of Nrisinghapur. Plaintiff No. 2 Hazari Sheikh has also deposed that Abul Hussain attested the Deed of Exchange. It is interesting to note that P. W. 2 Naziruddin Khan who was bent upon supporting the defence case has also stated that defendant Abul Hussain attested Exh. 1 and has thus given a lie to the denial by Abul Hussain. The evidence and the circumstances stated above, conclusively show that plaintiff No. 2 is owner of the properties and that the kabala executed by him in favour of plaintiff No. 1 is a benami transaction.

20. We are unable to agree with the finding of the' learned Subordinate Judge with regard to possession of the disputed, lands. He based his findings on this point merely on the statement of defendant No. 3 that they are in possession of the entire disputed lands except the homestead and the supposed admission of plaintiff No. 2, without any discussion and scrutiny of evidence on both sides with regard to possession. The relevant observation in his judgment at page 37 of the Paper Book is as follows "P. W. 2 Naziruddin in his‑ cross‑examination admits that after the purchase by the defendants, they posted bamboos in the garden and bamboo clumps, ' for taking possession; they also posted bamboo on paddy lands for taking possession, the defendants cultivated the paddy lands out of the suit land, and they took paddy. In view of those admissions by the plaintiff No. 2 Naziruddin, it is abundantly clear that the defendants' case is true that they are in possession of the entire disputed lands except the homestead situated in the disputed lands." It is evident from the above observation that the learned Subordinate Judge was carried away by the wrong impression that P. W. 2 was the same as plaintiff No. 2, whereas the actual fact is that plaintiff No. 2 is Hazari Sheikh, while P. W. 2 is one Naziruddin Khan. This approach to the evidence regarding posses sion was thus manifestly wrong. Plaintiffs 1 and 2 have testified that plaintiff No. 2 has all along been in possession of the suit lands. P. W. 1 (Plaintiff No. 2) has stated: "I did not receive any consideration from my sons. My sons were my benamdars. The plaintiff No. 1 did not possess lands in respect of which I executed kabala in his favour. The kabala is with me and pay rent. "In cross -examination he has said." I executed 3 Ammukhtarnamas in favour of the heirs of Prionath. Some Mohurer of the Sub‑Registrar's Office told me to execute Binama Kobalas in favour of my sons as the power of attorney were in my name. I purchased some land at Damki and constructed a Khamar house there. There is a kitchen also near the Khamar house there. My one son Sahidur' resides here. Female members of my house also occasionally to and reside there. Occasionally I also reside there."

21. The evidence of plaintiffs' witness No. 6 (Plaintiff No. 1) is that he resides with his father and that he has no property of his own; that he has no means to make any purchase and that he cultivates his father's land. Defence did not challenge the evidence of plaintiffs Nos. 1 and 2, just referred to, by way of cross‑examination and did not even suggest that plaintiff No. 1 does not reside with his father and that he does not cultivate his father's lands. On the defense side D. Ws. 1, 4 and 5 have deposed as to possession. D. W. I has testified that they got possession of the kabala lands except the homestead and that they are still in possession of those lands and in cross‑examination he has stated: "We entered the land on the next date of registration of the kabala. After registration of the kabala an injunction was issued upon us not to go to the land. We were in possession of the land since before the order of injunction was passed. This evidence cuts through the case itself in paragraph six of the written statement where it was stated that. "At the time of the sale of the suit property the plaintiff No. 1 gave verbal undertaking to the defendants that within one month he would deliver khas possession in favour of the defendants of the residential house on the property described in Schedule "Kha" and go elsewhere. Plaintiff No. 1 delivered possession of the other properties in favour of the defendants at the time of the execution of the kabala. "D. W. 4 has made a vague statement that they possess all the suit properties except the homestead since the time of their purchase. This is the witness who has said in cross‑examination." I would not keep any information regarding the properties of the plaintiff. I beard about Bainanama and sale of the suit land but I was not present when the Bainanama was executed or the kabala was executed."

22. P. W. 5 sought to make out a new case by stating that since their purchase they possessed the entire suit lands including the homestead. This is not the case of the defendants either in their written statement or in the evidence of their witnesses, namely that the defendants possessed the homestead also since the purchase.

23. Adverting to P. W. 2 Naziruddin Khan, it is clear that plaintiffs examined him as a formal witness to prove certain documents including the Deed of Exchange Exh.

1. In the last line of his examination‑in‑chief, he said that the plaintiffs possess the disputed properties. In his cross‑examination he said: "About 2 years ago, 'the plaintiff constructed a new homestead at village Banki. He has purchased many lands there. He along with his. second wife with her children reside there. The plaintiff No. 1 resides in the house of Prionath. After purchase by the defendants they posted bamboos in the garden and bamboo clump for taking possession. They also posted bamboo on paddy land for taking delivery of possession. The defendants cultivated the paddy lands out of the suit lands and they took the paddy." It will be noticed that what is stated in the cross‑examination is directly opposed to his evidence in examination‑in‑chief on the point of possession. Though a witness for the plaintiffs, he went much further than the defendants themselves in seeking to prove the latter's possession of the suit lands. None of the defendants who deposed in the case has spoken of delivery of possession by posting of bamboos in the garden and bamboo clump. That is not the case of the defendants, even in the pleadings. P. W. 2 went all out to support the defence case and sought to prove that the defendants took possession not only of the culturable lands but also of the homestead which is distinctly indicated by the statement regarding posting of bamboos in the garden and bamboo clump. We are constrained, in the above circumstances, to hold that D. Ws. 1, 4 and 5 are not witnesses of truth and P. W. 2 was gained over by the defence and none of them deserve credence.

24. It is pertinent to note that the suit was first filed before the Munsif of Kushtia who by an ad interim order of injunction passed ‑on 16‑3‑1958, restrained the defendants from` entering into possession of the disputed lands. This injunction was vacated on 17‑5‑1958. There was an appeal against the order dated 17‑5‑1958 and the learned appellate Court directed the trial Court to issue an order of temporary injunction in favour of the plaintiffs restraining the defendants from entering the suit properties or taking possession of the same. These facts will appear from the certified copy of the appellate judgment which was originally made Exh.

1. The plaint was returned on 6‑3‑1959 by the learned Munsif and when it was refilled in the Court of the learned Subordinate Judge, Kushtia, notice for ad interim injunction was issued on 21‑3‑1959 and on 7‑5‑1959, the learned Subordinate Judge passed an order of injunction restraining defendants from entering into the possession of the disputed properties. There was no appeal against that order. It can hardly be believed that the defendants had entered into possession before the passing of the injunction order and that in spite of the injunction they continued in possession. The learned Subordinate Judge passed an order of injunction after hearing the parties and after he found a prima facie case in favour of the plaintiffs which indicates that he was prima facie satisfied that the plaintiffs were still in possession of the disputed properties. D. W. 1 has deposed that they were still in possession on the date of his deposition that is 30‑4‑1960. If the defendants after issue of the injunction order went upon the lands and possessed the same, they might well have been hauled up for contempt of Court and the plaintiffs would not sit idle and take no steps against them in that behalf. On a consideration of the evidence and other features of the case as regards possession, we are of the view that plaintiff No. 2 has all along been in possession of the disputed properties and that the defendants' story of possession is a myth.

25. In support of his contention that ad valorem court -fee was payable in this case and that with a fixed court‑fee of Rs. 20 the suit is not maintainable, Mr. Islam has cited several decisions. In the case of Joseph Lezarus v. Isha Khan (A I R 1958 Pat. 108), it was held that a suit for a declaration that the sale‑deed executed and registered in favour of the defendants by the plaintiff's mother with respect to the suit property is void ab initio to having been got executed fraudulently and that the defendant has not acquired any right; title or interest to the said property by virtue of the sale, is not a pure declaratory suit requiring a fixed court‑fee under Article 17(iii) of Schedule Il of the Court Fees Act, but is a suit for declaration and consequential relief of avoiding the effect of the sale‑deed in question in the garb of a mere declaratory suit and requires ad valorem court‑fee under section 7 (iv)(c). The decision in that case, in our opinion, is not applicable to the facts of the present case, inasmuch as, no declaration that the defendants has not acquired any right, title and interest in the suit properties by virtue of the sale has been prayed for in this suit.

26. In the case A I R 1944 Pat. 17, the plaintiff alleged that the defendants fraudulently got the plaintiff to execute certain sale‑deeds which were without consideration and prayed for a declaration that the sale‑deeds were got up and fraudulent and that the defendants had acquired no title by virtue of the same, and the learned Judges of the Full Bench held that as the sale‑deeds on their very face had been duly executed and properly registered, carrying with them the necessary legal consequence that title passed from the transferor to the transferee the sale deeds would necessarily require to be cancelled in order to get rid of the legal consequences attaching to them. That being the very object of the suit though the plaintiff did not in terms ask for the cancellation of the deeds in question that relief was implicit in the relief sought for. The suit, therefore, being one for declaration and consequential relief was governed by section 7 (iv)(c) and not Schedule 2, Article 17(iii) of the Court Fees Act. It was further held that in considering what court‑fee is payable on a, plaint, caution must be observed so as not to import into the plaint anything which it does not really contain either actually or by necessary implication. In construing the plaint the Court must take it as it is, not as it may think it ought to have been. A relief not asked for cannot be imported so as to charge court‑fee thereon. Where a plaintiff who is entitled to consequential relief frames his suit as one for a declaration only, the Court is not entitled to insist upon his praying for a consequential relief and paying the court‑fee proper for such a suit.

27. It was laid down by a Full Bench of this Court in the case of Baibakilal Basak v. Iqbal Ahmed Quraishi and another (17 D L R 119), that for the purpose of determining court‑fees in construing the plaint, the Court must take it as it is and not as it thinks it ought to have been; but while deciding the suit on merits, the Court must decide the amount of court‑fee payable on the plaint as per prayer in the plaint upon a consideration of the plaint as a whole and the relief that ought to have been prayed for and if it is found that proper court‑fee has not been paid for the relief which ought to have been prayed for but only fixed court‑fee has been paid to accordance with the prayer and the statement in the plaint, the suit is liable to be dismissed for non‑payment of proper and sufficient court‑fee. Thus according to the above Full Bench, decision of this Court to which one of us was a party, the position clearly is that while determining the court‑fee payable on a plaint, the Court at the initial stage has to accept the court‑fee paid by the plaintiff on the basis of the relief claimed in the plaint without asking the plaintiff to pray for further relief which, it thinks, ought to have been prayed for and compelling the plaintiff to pay ad valorem court‑fee, but after hearing the suit on merits, if on a consideration of the plaint as a whole and the relief prayed for, it is found that the plaintiff ought to have prayed for further relief and paid ad valorem court‑fee, which he did not pay, the suit of the plaintiff is liable to be dismissed for not having paid proper and sufficient court‑fee.

28. In this context reference may be made to Order 1, rule 4(a). Rule 9 and rule 10(2) of the Code of Civil Procedure. Rule 4(a) runs thus: "Judgment may be given without any amendment (a) for such one or more of the plaintiffs as may be found to be entitled to relief, for such relief as he or they may be, entitled to; to Rule 9 provides that no‑suit shall be defeated by reason of the mis-joinder or non‑joinder of parties and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. Rule 10(2) authorises a Court to order at any stage of the proceedings that the name of the party improperly joined whether as plaintiff or defendant, be struck out and the name of any person who ought to have been joined, either as plaintiff or defendant or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. After consideration of the case on merits, it appears that plaintiff No. 1 was wrongly joined as, a plaintiff and might have been impleaded as a pro forma defendant; but this mis-joinder of plaintiff No. 1 has not stood in the way of dealing with the matter in controversy, as regards rights and interests of plaintiff No. 2 and the defendants. In this case plaintiff No. 2 has been found to have been entitled to relief and as such we are granting relief to him.

29. In the instant case the plaintiff No. 2 has paid fixed court‑fee as well as court‑fee for the consequential relief prayed for in the shape of permanent injunction. Now we are to see if the suit is maintainable in the absence of payment, or ad valorem court‑fee.

30. We have already found that plaintiff No. 2 has not only got title to the suit lands but also obtained possession therein. Not being executant of the kabala in question it was not necessary for him to' pray for cancellation of the deed. He has prayed for appropriate reliefs, namely that the kabala executed by the plaintiff No. 1 in favour of the defendants is not l binding on him and permanent injunction for which proper court‑fees have been paid. Plaintiff No. 1's suit has been dismissed. Thus the contention that the suit is not maintainable in the absence of payment of ad valorem court‑fee is without any substance, inasmuch as, the court‑fee paid by plaintiff No. 2 on the plaint is sufficient.

31. Reference has been made to the case of Kalipada Mondal and others v. Kali Charan Mondal and others to support the contention that the suit is hit by section 42 of the Specific Relief Act. In that case it was laid down that if the plaintiffs are out of possession and the benamidars are in possession, the recovery of possession from the benamidar is `further relief' which the plaintiffs ought to pray for, when praying for a declaration that the patta is a benami document; and in the absence of such a prayer for the "further relief" the Court must refuse to give a mere declaration. The facts of the present case are different from those of the case under reference, inasmuch as, it is not the plaintiffs' case here that the benamidar (plaintiff No. 1) is in possession of the disputed properties. Furthermore, we have already held that plaintiff No. 2 who executed the benami kabala is in possession of the entire properties. It may further be noted that in the plaint it was asserted that plaintiff No. 2 is in possession of the suit lands. The present suit is for declaration and consequential relief, gamely, a permanent injunction. For reasons stated above, section 42 of the Specific Relief Act is no bar to the maintainability of the suit.

32. The next point urged by Mr. Islam is that if it is held that the plaintiff No. 1 was benamidar of plaintiff No. 2, the defendants are entitled to the protection under section 41 of the Transfer of Property Act. Section 41 of the Transfer of Property Act provides that if a person is an ostensible owner of the immovable property with the consent, express or implied of the person interested in the same and transfers the property for consideration, the transfer shall not be voidable on the ground that the transferor was not authorised to make the transfer provided that the transferee after taking reasonable care to ascertain that the transferor had no power to make the transfer has acted with due care. Bona fide purchasers for value without notice are protected by this section. It is necessary to determine whether the defendants are bona fide purchasers for valuable consideration without notice of the title of plaintiff No.

2. The defendants have not even produced their most important title deed, namely the kabala executed by plaintiff No. 2 in favour of plaintiff No.

1. Plaintiff No. 2 has emphatically asserted that the document is in his own possession. The correctness of this statement can hardly be doubted. Had it been in possession of plaintiff No. 1 and had he been the real owner of the properties, the document would have been made over to the defendants and they would have, in that case, certainly filed it in Court. Nothing was‑ stated in the written statement that the defendants made any enquiry except making single statement that the defendants were bona fide purchasers for valuable consideration without notice of the alleged benami. Absence of bona fides on the part of the defendants is clearly indicated by the fact that they did not even get the original document of title of the transferor. Besides, the plaintiffs have produced Union tax receipts, Exh. 4 series and dakhilas, Exh. 5 series to show that plaintiff No. 2 was all along paying the Union Tax of the homestead and on some occasions either had paid the rent to the landlord or rent was paid through him. It further appears that his name was recorded in the column for tenants in one of the dakhilas. If the defendants made enquiry in the State Acquisition Office or in the Union Board Office, they would have known as to who was the real owner of the property but either no intelligent enquiry was made by them or they did not think it necessary to make any enquiry having been aware of the fact that the owner of the properties was plaintiff No: 2 and not plaintiff No. 1.

33. There is some evidence to the effect that plaintiff No. 2 was present on the date of the bainanama along with the father- in‑law of plaintiff No.

1. This fact has been testified to by some of the defence witnesses. D. W. has stated that they were asked to attest the document but they did not do so. It is admitted by the defence witnesses that plaintiff No. 2 was living with his family in the homestead at the time of the bainanama. It does not at all stand to reason that the defendant would purchase the properties knowing that at least part of the same was in possession of the plaintiff No. 2 and the members of his family without insisting upon plaintiff No. 2 to allot the land unless it was a mala fide transaction.

34. There is no satisfactory evidence of payment of consideration for the sale‑deed, Exh. A(4). The date of execution of the bainanama is 29th Bhadra, 1364 B. S. corres ponding to 15‑9‑1957, while the kabala Exh. A(4) is dated 9th Kartick 1364 corresponding to 2‑10‑19YI. The evidence of P: W. 1 who is defendant No. 3 in the suit is that Rs. 6,100 was paid as earnest money on' the date of execution of the bainanama and the balance of Rs. 1,900 was paid on the date of the kabala. He has further stated that he paid Rs. 1,000 father of Reazuddin paid Rs. 4,000 and Muhammad Ali paid Rs. 1,100 on the date of execution of the bainanama. In his cross‑examination he stated that his brother‑in‑law Muhammad Ali paid the balance of Rs. 1,

900. The evidence of D. W. 2 is at variance and inconsistent with that of D. W.

1. Although D. W. 2 also deposed that Rs. 6,100 was paid on the date of the execution of Exh. C and Rs. 1,900 was paid when the kabala was executed, in his cross‑examination he made a categorical statement that Abul Hussain paid Rs. 6,100 in the hand of Mofizur Rahman (plaintiff No. 1). He does not say that any other defendant paid any money out of that amount. .D. W. 4 who is no other than defendant No. 4 Dr. Nurul Huq has not said a word in respect of passing of consideration of the kabala; on the contrary, he has stated that he heard about the bainanama and sale of the suit properties but he was not present when the documents were executed. It is noteworthy that had been a bona fide purchaser of the suit lands along with others, he would not have been so callous and unconcerned about the transaction. He has not even said that he was present at the time of settlement of terms. There is nothing in his evidence that he paid any, part of the consideration at all. His conduct is thoroughly inconsistent with his claim of purchase of the disputed properties along with the other defendants. Next witness is D. W.

5. He is defendant No. 2 Sabatullah, father of Reazuddin. He has stated in direct contradiction to the testimony of D. W. 1 that his son Reazuddin made the purchase and paid Rs. 4,

000. He also denied any knowledge about the bainanama and the kabala. While D. W. 1 says that the father (D. W. 5) aid Rs. 4,000, the father says that his son Reazuddin paid the' amount and made the purchase. Thus the evidence of D. W. 5 also as regards payment of consideration does bear scrutiny. It is important to note in this connection that Reazuddin who according to his father is the real purchaser and payer of the sum of Rs. 4,000 has not been examined as a witness. Muhammad Ali who according to the evidence of D. W. 1 paid Rs. 1,100 on the date of execution of Exh. C and Rs. 1,900 at the time of the kabala, has also not been examined. There is no explanation whatsoever as to why these two persons who would be most competent witnesses to prove the payment of consideration: were withheld from the witness box. P. W. 6 Mofizur Rahman (plaintiff No. 1) has denied having received and consideration for the kabala noticeable fact is that the evidence adduced by the defence is to the effect that the plaintiff No. 1 purchased the stamp papers for the kabala. The purchase of stamp papers for a kabala or any other document is the liability of the recipient of the deed and it is not stated why in this particular case stamp papers were purchased by the vendor, plaintiff No.

1. This also raises suspicion with regard to the passing of the consideration. Regard being had to the inconsistencies, the anomalies and the contradictions in the evidence of the defence witnesses and other circumstances as regards payment of consideration for Exh. A(4), we are unable to accept the defence case that the defendants paid Rs. 8,000 as consideration of the kabala t o the plaintiff No. 1.

35. In the circumstances as above, we are satisfied that the purchase of the defendants from plaintiff No. 1 was not a bona fide transaction for valuable consideration and that the defendants were aware of the fact that the properties really belonged to plaintiff No. 2 and not to plaintiff No.

1. Thus they are not entitled to the protection provided by section 41 of the Transfer of Property Act. We, therefore, dismiss the appeal with costs. We affirm the judgment and decree of the trial Court so far as the declaration is concerned but we set aside the order with regard to costs as in our view plaintiff No. 2 is entitled to the costs of the suit also and we modify the decree of the trial Court accordingly. HASAN, J.‑I agree. K. B. A. Appeal dismissed.