The burden of proving a benami transaction lies on the person who asserts it and depends upon the payment of purchase money for the transaction. Once the payment is proved, the purchase is prima facie assumed to be for the person who paid the purchase money unless by evidence contrary is proved.

Radha Monan Prasad, J.

This appeal arises out of the judgment and decree dated 27th June. 1990 passed in Title Suit No. 204 of 1974 by the 7th Additional Subordinate Judge, Bhagalpur which has been dismissed on contest.

2. The suit was filed by the plaintiff-appellant for declaration that he is in possession of the entire land described in schedule 5 of the plaint and that the defendant-respondent has no manner of right, title, interest thereof and possession over the same and also fur decree in his favour for recovery of possession of the suit land. The plaintiff further sought for direction to the defendant to remove the well from the suit land within a time to be fixed by the court, failing which the same be removed through the agency of the court at the cost of the defendant and for further decree of mesne profits.

3. The case of the plaintiff, in short, is that in the year 1948 he and Thakur Sah purchased the share of Dhirendra Nath Mitra who was holding 1/3rd share in old holdings no. 10 and 12 out of the total area of 5 bighas 4 kathas by virtue of sale deed (Ext. 1) and after the aforesaid purchase Thakur Sah and the plaintiff filed Title Suit No. 24/49 in the court of Sub Judge, Bhagalpur for partition of and allotment of 1/3rd share against the co-sharers of said Dhirendra Nath Mitra. The suit was decreed and they came in possession over 1/3rd share measuring 1 bigha 14 kathas and 13 1/2 dhurs. During the pendency of execution case, Thakur Sah sold his 8 annas interest to Changuri Mahto and Kahanai Mahto and thus, Changuri and Kahanai became co-sharer with the plaintiff and according to the plaintiff, there was amicable division between them in the year 1959 in which 10 kathas 5 dhurs fell in the share of the plaintiff fully described in schedule. On said division plaintiff's name was mutated in the office of Anchal Jagdishpur and Bhagalpur Municipality.

4. Further case of the plaintiff is that defendant is his Shala whose house at Golaghat Garhiya fell down in heavy rain in 1965, whereafter on his request, the plaintiff accommodated and allowed him to reside in verandah portion of the house standing on the suit land and since then the defendant continued in occupation of Khaparaposh verandah as detailed in schedule 4 of the plaint as in permissive possession. In 1966 the plaintiff who was in need of the suit house and sensing the evading attitude of the defendant asked him to vacate and sent notice also for the said purpose and in failing thereof filed the present suit.

5. The defendant contested the suit and filed written statement, alleging, inter alia, that the suit is barred by adverse possession and law of limitation, barred by estoppel, acquiescence and waiver. Further case is that he is in exclusive possession of the suit property since 1961 as an absolute owner and has acquired title by adverse possession as well. The defendant has claimed 1/3rd share in schedule 1 property of the plaint which he claims to have acquired with the plaintiff along with Thakur Sah having 4 and 8 annas share by them and the defendant claims to have paid 1/4th consideration of the sale deed (Ext. 1) and the plaintiff worked as lendor and Benamidar for this defendant and as such he also claimed that he was the purchaser of 1/4th share of Ext. 1. It is further claimed by the defendant that he all along contributed his 1/4th share in litigation expenses. It is alleged that after the delivery of possession in the aforementioned partition suit, there was amicable partition with the plaintiff and the defendant on the one side and Changuri Mahto and Kahanai Mahto, purchasers of the interest of Thakur Sah on the other side in 1959. On the said partition plaintiff and defendant got 10 kathas 5 dhurs. Later on, an amicable partition also took place between the plaintiff and the defendant and the defendant constructed brick built thatched house on his allotted share and began to reside thereon with his family members.

6. It is contended t