IMPORTANT POINT
Burden of proof lies on person who claims property to be Benami.

JUDGMENT

B.P. Routray, J.—The Defendants have come up in the present appeal against judgment and decree dated 9th March, 2007 of the learned Additional District Judge (Fast Track), Sambalpur in T.S. NO.157/3 of 2001-05.

2. Suit property consists of four parts, Viz. Schedule ‘A’, ‘B’, ‘C’ and ‘D’. Schedule-A is the land measuring Ac.0.020 decimals out of MS Plot No.1648/2583 of Khata No.190 corresponding to Plot No.1648/5752 in Khata No.733/1762 mutated in the name of Chandeswar Prasad Sahu (Plaintiff).

Schedule ‘B’ property is a pump house situating over the land measuring Ac.0.040 decimals (adjoining to Schedule ‘A’ land) out of plot No.1648/2583 in Khata No.190.

Schedule ‘C’ property is eastern side quarters of the ground floor of the building constructed over Schedule-A land, consisting of one bed room, one drawing room, one kitchen and one toilet with a small covered space in between the toilet and kitchen.

Schedule ‘D’ property is the 1st floor of the same building constructed over Schedule-A land having two quarters each with same description mentioned for the ground floor.

3. Plaintiff - Respondent filed the suit praying for his declaration of right, title, interest over Schedule ‘A’ property, and to declare his right of use of Schedule ‘B’ property, recovery of arrear rent as well as recovery of mesne profit in respect of Schedule ‘C’ & ‘D’ properties from different dates.

4. As per Plaintiff’s case, he and Defendant No.1 were friends initially and they decided to purchase lands. Accordingly, Plaintiff purchased Ac.0.020 dec by registered sale deed No.22 dated 3rd January, 1997 and Defendant No.1 purchased Ac.0.040 dec by registered sale deed No.23 dated 3rd January, 1997 from one Jagannath Panda out of M.S. Plot No.1648/2583 in Khata No.190. Both the lands are adjoining to each other. The land purchased by the Plaintiff is having dimension of 42 feet in north, 46 feet in south, 20 feet in east and west each, i.e. Schedule ‘A’ land. He constructed the building thereon, which was completed in April, 1998. The stair-case of the said building runs jointly over the land of the Plaintiff as well as Defendant No.1. Said stair-case is having 2 feet 6 inch on Plaintiff’s Schedule ‘A’ land and 3 feet 6 inch over adjoining land of Defendant No.1, with the understanding that the same would be used by both of them as a common passage. Further Plaintiff constructed a pump house over the adjoining land of Defendant No.1 affixing the tube well with motor pump. The pump house is of size 10’ x 10’ adjoining towards southern side of the common passage.

The Defendants took rent of Schedule ‘C’ house (ground floor) for Rs.1500/- per month in March, 1998. The Defendants then forcibly occupied Schedule ‘D’ house (1st floor) by breaking open the locks. As the defendants did not pay the rents subsequently and forcibly occupied Schedule ‘D’ house, he reported the matter to police. This did not yield any result. So he sent Lawyer’s notice on 28th August, 2001 to the Defendants terminating the agreement in respect of Schedule ‘C’ house as well as for vacation of possession in respect of Schedule ‘D’ house.

But the Defendants in their reply have claimed their ownership over those properties without any basis and in addition to the same, they further claimed certain amount of money owing from the Plaintiff towards cost of repairing of the bus of the Plaintiff in the guise of false partnership.

5. The Defendant’s case is that, Defendant No.1 purchased entire land measuring Ac.0.060 dec. from Jagannath Panda vide registered sale deed Nos.22 and 23 dated 3rd January, 1997 and constructed the building over Schedule ‘A’ land. Schedule ‘A’ land was purchased in the name of the Plaintiff by him (defendant no.1) and the consideration amount was paid by him (defendant No.1). The purchase of the land in the name of Plaintiff was as per their understanding for obtaining finance where the Plaintiff would stand as a guarantor utilizing the properties over Sche