A rank trespasser and a stranger to the sale deed cannot question the non-passing of consideration.

G. K. MISRA, J.

( 1 ) THE suit lands admittedly belonged to Chandrasekhar Sahu, the deceased husband of Malati (defendant No. 7 ). After the death of Chandra Sekhar and his son Narayan, defendant 7 had title to and possession in the disputed properties. She sold the disputed lands to the plaintiffs by two registered sale deeds (Exs. 4 and 5) for Rs. 3,000. on 6-9-1956. Plaintiffs' case is that they got delivery of possession under the registered sale deeds; but defendants 1 to 6 trespassed thereupon in May, 1958. The suit was filed on 18-3-1960. Defendants 1 and 8 to 6 claimed no title to the property and pleaded that there was no cause of action against them. Defendant No. 7 admitted plaintiff's claim that she had executed the two sale deeds on payment of consideration. Defendant No. 2 alone contested the suit. His case is that the two sale deeds (Exs. 4 and 5) were collusive and without considera-ti0n. The basis of his claim is that when Narayan was lying ill, defdt. No. 7 gave the disputed lands to him in 1955 on bhag basis for cultivation. During narayan's illness defendant 7 borrowed Rs. 1,100 from him by various instalments and being unable to repay the said amount she verbally leased out the disputed lands to him on permanent basis on condition that he would maintain her throughout her life. Though defendant No. 7 promised td execute necessary documents, plaintiffs got the sale deed (Exs. 4 and 5) fraudulently executed in their favour.

( 2 ) ON a thorough analysis of the evidence the learned Addl. District Judge held that the case of defendant No. 2 that he paid Rs. 1,100 to defendant 7 and was put into possession on permanent basis was not acceptable; and that defendant 2 also failed to establish that the sale deeds (Exs. 4 and 6) were collusive and fraudulent. These findings of fact against defendant 2 were not rightly assailed by mr. Sen. He, however, contended that the plaintiffs failed to establish that Exs. 4 and 5 were supported by consideration, as such, no title had passed in favour of the plaintiffs under the documents.

( 3 ) BEFORE examining the contention of Mr. Sen, it is necessary to clarify the facts on the basis of which the question of law is to be answered. On the finding defendant 2 is a rank trespasser. He has no semblance of title and is not a person claiming an interest through the rightful owner, defendant 7. The question of possession in favour of defendant No. 2 is not material in this case. Admittedly defdt. 7 was in possession till 1955. Her possession up to 1955 would enure to the benefit of the plaintiffs. Under Section 2 (8) of the Limitation Act, 1908, "plaintiff" includes any person from or through whom a plaintiff derives his right to sue, plaintiffs, in this case, thus establish their possession within 12 years of the suit even on the finding that delivery of possession was not given under Exs. 4 and 5 and that defendant 2 was in wrongful possession prior to the sale deeds. Execution of the documents and payment of consideration thereunder are admitted by defendant 7 in her written statement.

( 4 ) LAW is well settled that when execution of a document is either admitted or proved, the onus is on the executant to prove that consideration did not pass. In this case, if defendant 7 herself would have challenged the payment of consideration, the onus would have been on her to establish that she executed the documents. The position of defendant No. 2 is worse. He had failed to establish that no consideration passed under Exs. 4 and 5.

( 5 ) THE learned Addl. District Judge held that the evidence adduced by the plaintiffs regarding payment of consideration, was not satisfactory. But the question lost its importance in view of the admission of defendant No. 7 in her written statement that she executed Exs. 4 and 5 and the receipt of consideration.

( 6 ) A point of law is raised whether defendant 2, a rank trespasser and a stranger to Exs. 4 and 5, can question non-passing of the consider