I.D. Dua, J.
(1) The only question raised in this second appeal centres round the decision on the issue :-
'ISthe plaintiff an owner in possession of the suit property and it is liable to be released from attachment ?'
On the second issue, on the question of collusive nature of the suit. no arguments were addressed in the lower Appellate Court and the Court of first instance had disposed of that issue with the observation that there was no evidence of collusion in the case.
(2) On the issue of ownership and possession also, it is ntoeworthy, the two Courts below have arrived at a concurrent conclusion.
(3) The facts necessary for understanding the controversy may now briefly be stated. Ram Saran Dass appellant, who was defendant No. 1 in the Court of first instance, had obtained a decree against Lakshmi Narain defendant No. 2 in that Court. In execution of that decree, house No. 923 situated in village Chiragh, Delhi, was attached. Smt. Ram Kali, respondent No. 1 in this Court, instituted the suit giving rise to this appeal for declaration that the house belonged to her and also claimed an injunction restraining Ram Saran Dass from getting the house sold in execution of his decree. The plaintiff's case was that the house which originally belonged to Rizak Ram, father of Lakshmi Narain, was sold by the Special Assistant Collector for recovery of income-tax arrears of Rizak Ram, and was purchased by the plaintiff for Rs. 1,100.00 in public auction. This case was accepted by the trial Court, which after upholding the said purchase, observed that there was no satisfactory evidence on the record to show as to who had raised the constructions on the suit house and whether such constructions were effected before or after the purchase by the plaintiff. The failure of the plaintiff to appear in the witness-box was ntoiced by the trial Court, but no presumption against her was drawn from this failure because her husband actually appeared and established the purchase by the plaintiff at the public action. The trial Court, as observed earlier, accepting the plaintiff's case, decreed her suit.
(4) On appeal, the learned Additional Senior Subordinate Judge in a fairly well-reasoned judgment, agreed with the conclusion of the trial Court It observed in the appellate Judgment that the appellant Ram Saran Dass had nto led any evidence, direct or circumstantial, which could indicate that the auction money of Rs ll.00/ paid by the plaintiff to the Income-tax Department had been supplied to her by Shri Lakshmi Narain or by Shri Rizak Ram. The possession of the house was with the plaintiff and it remained with her after sale. Observing that the burden of proving the benami nature of the transaction was indisputably on the person asserting the same, the Court found that Ram Saran Dass had failed to prove that the purchase of the house in question by the plaintiff was benami and that Lakshmi Narain was the beneficiary. The Court also took into account the past history of the controversy and ntoiced that an objection application under Order 21, Rule 58, Civil Procedure Code, had earlier been made by Smt. Bishan Devi, who, on failure in those proceedings, also instituted a suit under Order 22, Rule 63. But the Court felt that there was clearly conflict between the titles of Smt. Bishan Devi and of the plaintiff. the fact that Smt. Bishan Devi had also claimed title to the property could nto, on any reasonable hyptohesis, negative the plaintiff's title in the present proceedings. The appellate decree, as ntoiced earlier, affirmed that of the trial Court.
(5) On second appeal, the learned counsel for the appellant has addressed very elaborate arguments in challenging the conclusions of the two Courts below. In regard to the question of benami, it is argued that there is no evidence on the point as to .who had raised the construction and that this circumstance vitiates the conclusion of the Court below. It has also been emphasised, inter alia, that as deposed by the respondent's husband, the possession of the property was nto exclusively with the respondent but was with the entire family. The propetty, says the appellant, is valuable and, thereforee, it must be held to have been purchased in the name of the respondent as a benamidar. Reference has also been made to Exhibit D. 3, a judgment by Shri A. N. Agearwal. Subordinate Judge, dated December te, 1956 which shows that at one time objections to the attachment of the property in question had also been raised by Smt, Bishan Devi. From this also the appellant wants me to conclude that the respondent plaintiff is a benemidar and nto the owner in her own right and the entire family was trying some how or the toher to save this property from attachement.
(6) The entire argument in connection with the plea of benami nature
(7) For the foregoing reasons, this appeal fails and is dismissed, but without any order as to costs. .