The burden of proof lies on the person alleging that a transaction is benami and that the apparent title holder is not the real owner.

JUDGMENT :

R.N. Misra, J. - Both the first appeals are directed against a common judgment and separate decrees of the learned Subordinate Judge of Berhampur passed in two separate suits and the, the appeals on the application of the parties were made analogous in this Court. Their were heard together and are disposed of by this judgment.

2. First Appeal No. 155 of 1966 is directed against the decree in Title Suit No. 62 of 1963 while First Appeal No. 267 of 1967, is directed against the decree in Title Suit No. 1 of 1964. The facts of each of the suits may he separately indicated:

First Appeal No. 115 of 1966:

3. The Plaintiff is the Appellant. He and the Defendant were two step-brothers. Their father who was a temple pujari died when the Defendant was young. The Plaintiff alleged that be looked after the Defendant as also his mother, educated the Defendant and looked after them. Plaintiff's father sold him to late Sri Sitaram Das Babaji, Mahant of Babaji Radhakanta Muth and in due course the Plaintiff became the Mahant of the said Muth. There is no clear material on record to show. as to when the Plaintiff became Mahant, but from Ext. F (deposition of p.w. 12 in an O.T.R. case) it appears that the Plaintiff assumed charge as Mahant in 1929 or 1930. The Plaintiff alleged that he purchased Ac. 7. 97 of land in village Raghunathpur and Ac. 3. 94? of land in village Gobindpur as also two houses one titled and the other a thached one from one Adikanda Jena and his sons and grand-sons under a registered sale deed dated 24-9-1952 for Rs. 10,000/-. He, however, took the document in the name of the Defendant as be was anxious that his private acquisitions may not be mingled with the Muth's property and he may be left with sufficient personal assets to raise funds as and when necessary. Accordingly out of his personal funds he advanced Rs. 1,000/- under an agreement dated 20-5-1952 (Ext. 11); paid Rs. 3,000/- under a receipt dated 17-9-1912 (Ext. 12) and Rs. 6, 000/- at the time of registration on 24-9-1952 (Ext. 13). Though these documents were taken in the name of the Defendant, the Plaintiff was the real owner. The documents were in his custody be was in possession and enjoyment of the property and at his behest the Defendant had made a sale and a mortgage of portions of this property. Subsequently the Plaintiff and the Defendant fell out and the Defendant started claiming, title in himself. That led to a proceeding u/s 145 of the Code of Criminal Procedure and the property was attached and put under a receiver. Thereupon the Plaintiff filed the suit for declaration that he was the true owner of the property and the sale was only a benami transaction.

4. The Defendant denied the allegation of benami and contended that the property was his. According to him, the Plaintiff had acknowledged the Defendant's title in a civil litigation (Title Suit No. 12 of 1959) and in other litigations as well. Even before the Commissioner of Endowments in a Scheme proceeding, the Plaintiff took the stand that the property was of the Defendant and he had no connection with it. The mortgage referred to by the Plaintiff was admitted by the Defendant, but it was contended that it was a transaction of his own. The sale referred to by the Plaintiff was explained away by the Defendant as being a sham transaction and it was alleged that it had been brought about so that the vendee Bishnu Das (p.w. 12) may be found eligible to marry one Saria. Debt, who is a co-vendee with him under the Bale deed dated 7.5.1956. No consideration actually passed under the transaction. The Defendant claimed that he was in possession of the property as a true owner, had paid rent and the Plaintiff had no right, title or interest in the property.

First Appeal No. 267 of 1967.

5. This Emit was by the purchasers from Brundaban Pal, the Defendant in the connected suit. They alleged that under the sale deed dated 7.5.1956, for a consideration of Rs. 2,500/- they purchased Ac. 3.94? cents of