1. This is a plaintiff's appeal arising out of a suit for declaration that a pucca house, described in the plaint, is his property and is not liable to be attached and sold in execution of decree No. 32 of 1926 obtained by defendant 1 against the plaintiff's father, defendant 2. The plaintiff's objection to attachment under Order 21, Rule 58, Civil P.C, was dismissed. He then filed the present regular suit for the relief above mentioned. The Court of first instance decreed the suit. On appeal by defendant 1 the lower appellate Court upheld the defence that the house in dispute belonged to defendant 2, the judgment-debtor. Accordingly it dismissed the suit; hence this appeal. The house in dispute stands on the site of an old kachcha house which was purchased in the name of the plaintiff on 25th January 1891, for a small sum of Rs. 140. It is common ground that the whole construction was pulled down and the house that now stands was erected at a cost of nearly Rs. 2,000. The plaintiff's case is that the sale-deed was not benami, and that the present house was built with funds belonging to him. In elaborating his claim the plaintiff alleged in his plaint that his maternal grandfather, Ghulam Sarwar, had supplied the consideration of the sale-deed, and that the subsequent construction of the house was likewise made with funds supplied by Ghulam Sarwar. It is not disputed that the plaintiff was 7 years old when the house was purchased in his name. The defence, on the other hand, was that the sale-deed had been taken by Abdul Samad, defendant 2, benami in the name of his son, the plaintiff, and that it was defendant 2 who erected the present building. The lower appellate Court has discussed the evidence bearing on the question of ownership thus raised in the pleadings and arrived at a finding that:
the plaintiff has failed to prove that his maternal grandfather, Ghulam Sarwar, supplied the money for purchase of the site or construction of the building. It is more natural under the circumstances to hold that it was Abdul Samad who defrayed the costs. The mere fact that the land was purchased in the name of the plaintiff does not mean that the plaintiff became the owner of it.
2. This finding of fact would have been conclusive in second appeal and not open to discussion, but the appellant has seriously challenged it on the ground that the burden of proof has been wrongly thrown on the plaintiff. It is argued that the sale-deed of 25th January 1891 being in favour of the plaintiff he is ex facie the owner of the property conveyed thereby, and that the burden of proving that it was benami for defendant 2 lay on defendant 1 who impugns the ostensible character of the deed. As regards the building subsequently erected on the site of the kachcha house acquired under the aforesaid sale-deed, it is contended that the ownership of the superstructure follows the ownership of the land on which it stands, and that prima facie the owner of the land also owns every thing permanently attached to it. On behalf of the respondent we have been referred to a number of decisions of various High Courts in which it was held that the ordinary rule as regards burden of proof does not apply where the plaintiff who unsuccessfully objected to attachment under Order 21, Rule 58, Civil P.C, institutes a suit for the establishment of his right to the attached property relying on a deed of transfer which is impugned by the successful decree-holder on the ground that it is benami for his judgment-debtor. It is said that in such a case the plaintiff ought to establish not only the due execution of the deed of transfer in his favour, but he should go further and establish that the ostensible transferee under the deed is also the real transferee. In other words, it should be presumed after the plaintiff's objection to attachment has been dismissed that the deed is benami for the judgment-debtor unless the contrary is proved by the plaintiff. This contention finds support from the case of Govind Atmaram v. Santai (1888) 12 Bom 270, in which a Division Bench of the Bombay High Court held, relying on two earlier cases of that Court that:
the defendant-having obtained an order maintaining an attachment it was incumbent on the plaintiff, who impugns that order to prove her case by establishing that the purchase money had been paid by him and that he had been since in possession.
3. This case was followed in Nanhi Jan v. Bhuri (1908) 30 All 321, in which a Division Bench of this Court held:
that a party intervening in the execution department, and failing in his objection to an attachment, and consequently being obliged to bring a suit under Section 283, Civil P.C. (Order 21, Rs. 63, Civil P.C, 1908), must, give prima facie evidence to establish the genuineness of the document upon which he relies.
4. The report shows that 'genuiness of the document' was meant by the learned Judges to indicate real character of the deed and not due execution of the document. The learned Judges referred to several earlier cases of this in which the same view had been taken as in Govind Atmaram v. Santai (1888) 12 Bom 270.
5. The learned Judges also noted the case of Suba Bibi v. Balgobind Das (1886) 8 All 178, in which a Division Bench of this Court had taken a contrary view. Following the Bombay High Court and this Court it was held by the Calcutta High Court in Jamahar Kumari Bibi v. Askaran Boid (1915) 30 IC 855 that:
a suit under Order 21, Rule 63, Civil P. C., is a suit to alter or set aside a summary decision or order of the Court, and is a method of obtaining review.
6. It was further observed that:
the plaintiff in the circumstances of this ease cannot discharge the burden of proof cast on her by merely pointing to the innocent appearance of the instruments under which she claims; she must show that they are as good as they look.
7. A learned single Judge of the Madras High Court took the same view in Perayya v. Venkayamma AIR 1924 Mad 770. A comparatively recent pronouncement of their Lordships of the Privy Council made in has definitely laid down that:
the plaintiffs being the ostensible owners of the property under a duly registered deed and a deed of transfer, the party claiming to attach that property for somebody else's debt, not their debt but their debt of the original debtor, must show that the sale was a fraudulent one, and that could only be done in this case (there is no other evidence) by showing utter inadequacy of consideration.
8. The case was one in which the ostensible owner had objected to the property in dispute being attached and on an order under Rule 58, Order 21, Civil P.C. being passed against him instituted a regular suit under Order 21, Rule 63, Civil P.C, to establish his right. A Division Bench of the Patna High Court has held, following the above Privy Council ruling, in Gillu Mal v. Manohar Das Jai Narain A.I.R. 1928 Pat. 434, that where a suit is brought under Order 21, Rule 63, Civil P.C, by a party against whom an order was made in a claim case the plaintiff would not be in a worse position as regards burden of proof than that in which he would have been if no claim case had been brought at all. There is no doubt that the Privy Council case to which reference has been made above is an authority for the proposition that an ostensible owner of the property whose objection has been dismissed under Order 21, Rule 58, Civil P.C, and who therefore brings a suit under Order 21, Rule 63, Civil P.C. for establishment of his right is not called upon to establish not only the due execution of the deed of conveyance by the original owner, but also that he was not the benamidar for the judgment-debtor as alleged by the decree-holder. The rule that in such a case the plaintiff must establish his title is not departed from. The quantum of onus is however the same as in an ordinary case, in which the benami character of an instrument is in question. The initial onus undoubtedly rests on the plaintiff. He has to establish his title to the property but having established the due execution of the deed of conveyance by one who admittedly owned the property the apparent tenor of the deed must prevail, unless it is established by the defendant that the ostensible owner is only a benamidar. The onus cannot rest on the plaintiff ad infinitum and shifts according to the ordinary rules of evidence, Govind Atmaram v. Santai (1888) 12 Bom 270 and Nanhi Jan v. Bhuri (1908) 30 All 321, were both decided under the Civil Procedure Code of 1882, Section 283 of which was somewhat differently worded from the corresponding provision in the Code of 1908, namely, Order 21, Rule 63. It might have been permissible under the older Code to hold that if the Court executing the decree dismissed the claimant's objection to attachment, expressly holding that the deed relied on by him was benami, he must establish in the regular suit that the decision of the Court executing the decree was incorrect. Section 283 ran as follows:
The party against whom an order under Section 280, Section 281 or Section 282 is passed may institute a suit to establish the right Which, he, claims to the property in dispute, but subject to the result of such suit, if any, the order shall be conclusive.
9. It was held repeatedly in cases arising under the old Code that if the objection was not inquired into and decided on the merits, the claimant was not bound to institute a regular suit within the shorter period of one year provided, by Article 2, Schedule 1, Limitation Act. This view was based on the wording of Section 283, which was construed as implying that the order must be 'under Sections 280, 281 or 282,' that is, it must expressly decide the objection on its merits in terms of the one or the other of the sections referred to. Order 21, Rule 63, Civil P.C, of 1908, runs as follows:
Where a claim or an objection is preferred, the party against whom an order is made may institute a suit to establish the right which he claims to the property in dispute, but subject to the result of such suit, if any, the order shall be conclusive.
10. The scope of Rule 63 is wider than that of Section 283 of the old Code. The former makes a title suit within the period of one year necessary by a person who preferred an objection and 'against whom an order is made.' To toy mind this is the only ground on which it is possible to reconcile the view taken in the cases decided by the Indian High Courts with the view now expressed by their Lordships of the Privy Council. Whether the ground suggested above is well founded or not, we must follow the Privy Council case which, if not reconcilable in the manner suggested above should be deemed to have overruled the contrary opinion previously expressed by the High Courts. We must take it to be the law that in a case like this, the plaintiff having established due execution of the sale-deed in his favour by a person who was admittedly the owner of the property to which it relates, he should: be deemed to have discharged the initial onus which lay upon him; and the burden of proof being thus shifted on the defendant, the latter must establish the benami character of such deed by showing that the consideration proceeded from the alleged owner or otherwise.
11. In the case before us the old house purchased in the name of the plaintiff no longer exists and the question is whether the house as it now stands belongs to the plaintiff. We do not think that the matter should be approached as the plaintiff desires us to do. We cannot split the controversy into two distinct portions, first, to hold that the site belonged to the plaintiff by virtue of the sale-deed, which the defendant having failed to establish that defendant 2 paid the consideration, and then to presume that the building standing on it belongs to the owner of the site. The more important part of the controversy is as to who constructed the house. In view of the finding arrived at by the lower appellate Court that the house was constructed by defendant 2, it may be inferred that he had a right to build on the land in dispute. It is common ground that the plaintiff who was only 7 had no funds of his own. The question is whether his maternal grandfather or his father, defendant 2, supplied the funds. The fact that he subsequent to the purchase built the house gives rise to the inference that the latter had paid for the site. Prima facie where a person makes a costly building on a site and remains in possession of the building for a considerable length of time, the presumption is that he had a right to build on the land. In the circumstances of this case such right can only be referable to the circumstances that he was the owner of the land. He could be the owner of the site if the sale thereof in 1891 was benami for him. In other words, the fact that defendant 2 built the house and remained in possession rebuts the presumption arising from the deed being in plaintiff's favour. It is possible to read the judgment of the learned Subordinate Judge as if he proceeded on some such reasoning. It is true he discusses in the first instance the question whether the plaintiff is the real owner of the site throwing the burden on him, and then proceeds to consider, the second question as to whose funds were employed in building the house. It is likely that his finding on the latter question influenced his judgment on the first. In all the circumstances of the case we are not disposed to interfere with his finding of fact as regards the ownership of the house in dispute. The result is that the appeal fails, and is dismissed with costs.