B.N. Maitra, J.
1. Title Suits Nos. 577 and 578 of 1976 and 258 of 1978 were heard together. The main dispute relates to the case set up by plaintiff in Title Suit No. 258 of 1978. He has alleged that the disputed property at premises No. 65, Mechuabazar Street, which was subsequently numbered as 155, Keshab Chandra Sen Street, belonged to one Sk. Munna as a tenant. He erected structures thereon. By a kobala dated 8-11-1917, he sold that property to Md. Hossain and All Hossain, who are sons of one Sk. Abdul. Sk. Amir was Abdul's elder brother and had no issue. He brought UD the plaintiff as his foster son. By a registered sale deed executed on the 26th July, 1924, Md. Hossain transferred his 8 annas share in the property to his brother, Ali Hossain. Then by a registered conveyance dated 25th Mar., 1926, Ali Hossain transferred that property to the plaintiff. The latter had great respect for Ali Hossain. That property was occupied by Sk. Amir, Sk. Abdul and the members of their family including the plaintiff. On his request, Ali Hossain used to look after that property. The rent receipts and documents in respect of their property remained in the name of Ali Hossain and the plaintiff kept his original title deed with him. He was engaged as a seaman on board a merchant ship and had to remain away from Calcutta for years together. So he forgot about his title deeds, documents and also with respect to his title to the property in question. The members of his family used to occupy one room in the structure standing on the disputed property. He was on board & ship up to 31-10-1976 and again from the 5th Feb., 1977, to 16th Dec., 1977. On the 22nd Dec., 1977, he returned to Calcutta and came to know that while he was on board a ship on the 25th July, 1977, Md. Yunus, defendant No. 1, (plaintiff of Title Suits Nos. 577 and 578 of 1976) forcibly took possession of that room, which had been in the occupation of the members of his family. He had consultation with his lawyers. He came to know that Md. Yunus claimed to have purchased the property in question described in the schedule 'A' to the plaint from defendants Nos. 3 to 5 by two different kobalas. But in fact no title accrued to Md. Yunus on the basis of those two documents. It further appeared that Md. Yunus instituted Title Suit No. 2323 of 1976 in the City Civil Court for recovery of khas possession of the premises described in Schedule 'B' to the plaint on the ground that the plaintiff was a licensee thereof, A fraudulent ex parte decree was obtained. Then Md. Yunus obtained khas possession of that room. Ali Hossain expired on the 30th Aug., 1970, leaving behind his widow (defendant No. 5) and son (defendant No. 2). The latter gifted his share in the property to his two sons, defendants Nos. 3 and 4. In fact, the plaintiff is the owner of that structure on the footing of the purchase by the aforesaid document dated 25th Mar., 1926, and Ali Hossain had no interest therein. His name is Md. Ali alias Sk. Jiaur Rasul. He is entitled to recover possession of that property. He has asked for a declaration that he is the owner of the structure of the disputed premises described in Schedule 'A' to the plaint, for a further declaration that the documents executed by defendants Nos. 3 to 5 in favour of Md. Yunus is not valid and not binding on him and also for a declaration that such ex parte decree is void and not binding on him. He has further asked for a permanent injunction to restrain Md. Yunus from disturbing his possession in the premises in question. He has prayed for recovery of khas possession with respect to the property described in the Sch. 'B' to the plaint and prayed for recovery of mesne profits.
2. Defendant No. 1, Md. Yunus, filed a written statement denying the plaintiff's allegations. His defence is that the suit is not maintainable; it is barred by estoppel and res judicata. Ali Hossain became the sole owner of the disputed property on the footing of the purchase made by him from his brother, Md. Hossain, by a kobala executed on the 26th July, 1924, Ali Hossain used to collect rent from the tenants of their property, had his name recorded in the landlord's office and in the Corporation of Calcutta as a thika tenant. In March, 1958, Md. AH filed Partition Suit No. 403 of 1958 in the original side of the Calcutta High Court against Ali Hossain and others praying for a declaration that he had fractional share in the disputed property, for partition and for taking accounts. The suit was contested by Ali Hossain and it was dismissed. An order was passed that the plaintiff would be given liberty to file a fresh suit within a fortnight on the same cause of action on payment of Rs. 100/- as costs. After AH Hossain's death, his only son, Zahirul Haque, gifted his share to his two sons, Serajul Haque and Manjural Haque (defendants Nos. 3 and 4). By a kobaia executed on the 7th July, 1975, defendants Nos. 3 and 4 sold their 14 annas share in the disputed property to Md. Yunus. Ali Hossain's widow, Shakuran Bibi, sold her remaining two annas share in that property to Md. Yunus by a kobaia executed on the 14th July, 1975. Thereby, he became the sole owner of that thika tenancy and of the property in question. His name was mutated in the landlord's office and also in the Corporation of Calcutta. He took possession of the property and collected rent from the tenants. Nabi Hossain (defendant in Title Suit No. 577 of 1976) and Aktar Hossain (defendant in Title Suit No. 577 of 1976) were licensees, who were in occupation of portions of the disputed property. Their licenses were duly revoked by him and thus, he instituted Title Suits Nos. 577 and 578 of 1976 against them, prayed for declaration of title, ejectment and injunction. The ex parte decree was rightly passed. Md. Ali had instituted Title Suit No. 130 of 1977 praying for a declaration that the disputed property was their joint property. He contested that suit. Then Md. Ali was permitted to withdraw that suit with liberty to sue afresh and costs were awarded.
3. Subsequently, Md. Yunus amended the plaint of Suits Nos. 577 and 578 of 1976.
4. Nabi Hossain and Aktar Hossain filed written statements and supported the case made out by the plaintiff in Title Suit No. 258 of 1978.
5. The learned Judge of the City Civil Court accepted the plaintiff's version, stated that the question of maintainability was not pleaded, dismissed Title Suits Nos. 577 and 578 of 1976 and decreed Title Suit No. 258 of 1978. He granted the prayers for declaration and injunction. Regarding the property of the Sch. 'B' an order was passed that the provisions of Section 144 of the Civil P. C. would provide for relief. Hence these three appeals by Md. Yunus.
6. It has been contended on behalf of the appellant that Md. Ali had no alias and he was not known as Sk. Ziaur Rasul. His real name is Md. Ali. The kobaia, Ext. 1, executed by Ali Hossain in favour of Sk. Rasul, son of Sk. Amir, on the 25th March, 1926, is a sham and fictitious document and it was never acted upon, Ali Hossain, who was the real owner of the property, possessed the same all along. The alleged ex parte decree was correctly passed. There was no suppression of summons. The suit is not maintainable and court will grant a decree in favour of the appellant in the aforesaid Title Suits Nos. 577 and 578 of 1976.
7. The learned Advocate appearing on behalf of the respondent Md. Ali referred to the well-known case of Mir Serwar Jan in (1912) 39 Ind App 1 (PC) and the Full Bench case of Raghava v. Sri Nivasa in AIR 1917 Mad 630. It has been contended that the document in favour of a minor is not void. In 1926, when a genuine disputed kobaia, Ext 1, was executed by Ali Hossain in favour of the plaintiff, he was only six years old. He was brought up by his uncle, Sk. Amir, who had no issue of his own. He was his foster son. The alleged ex parte decree was not rightly passed. The court omitted to consider the questions whether the claim of that Title Suit No. 2323 of 1976 was false and if any person of the name of Sk. Ziaur Rasul was in existence and because of these two defects, the case may be sent back on remand,
8. The other two appeals were not contested.
9. The first question for consideration is whether Md. Ali was also known as Sk. Ziaur Rasul. It has been contended for Md. Ali that on this, there is evidence of P. W. 1, Sakurennessa, P. W. 2, Samsunessa, who is his sister, and P. W. 3, Md. Ali, who is the plaintiff himself. The court cannot reject their testimony, specially when one of the D. Ws., namely, D. W. 9, Nabi Hossain, has stated in his chief that Ziaur Rasul is known as Md. Ali.
10. P. W. 1, Sakurennessa, is the plaintiff's alleged cousin and she cannot see. She pretended to identify Md. Ali in the court only by his voice. But her evidence is a mistaken one because she has stated that the man whom she was identifying in the court on the basis of his voice was Ziaur Hossain. Of course, there is a decision of the Supreme Court in a criminal case that identification by voice, when a person is not familiar with him, is risky, vide the case of Kirpal Singh v. State of U. P. in : 1965CriLJ636 . There is a clear lacuna in her evidence because she has nowhere stated that she is or was acquainted with Ziaur Rasul or Ziaur Hossain or Md, Ali. Then comes the evidence of P. W. 2, Samsunnessa. She is none but Md. Ali's own sister. She has stated that she lives at Gaya in Bihar and after receiving the summons, she came down to Calcutta, where she had been staying with the plaintiff. She also is an interested witness. P. W. 3, Md. Ali, being the plaintiff himself is highly interested in sup-porting his case. The plaintiff's own case is that he was a seaman. P. W. 4, Debdutta Paul, is an assistant of Shipping Master's office, Calcutta. He brought a duplicate copy of the certificate of Continuous Certificate of Discharge in favour of Md. Ali and also brought the service record, Ext. 2, of one Md. AH and not of Sk. Ziaur. It is common case that the service record, Ext. 2, relates to the plaintiff's service on board a merchant ship. But that document nowhere gives any inkling that he wag also known as Sk. Ziaur Rasul. The last witness on the plaintiff's side is P. W. 5, Abdul Wahad, who is also the record sorter of that office. He only proved his service record, Ext. 2. He does not utter a word that Md. Ali or anybody else was also known as Sk. Ziaur Rasul. D. W. 9, Nabi, is the defendant in Yunus's title suit No. 577 of 1976 and his interested evidence on this is disbelieved.
11. Plaintiff has stated that his name was never mutated in the Corporation of Calcutta and he never signed his name as Ziaur Rasul because he was widely known as Md. Ali. Harries, C. J., has stated in the case reported in (1950) 54 Cal WN 186 at page 187 that damaging statements cannot be got rid of merely by stating that they were slips of tongue. He has made further damaging statements by saying that he is the owner of a ration card, where his name has been written as Md. Ali, he has been enrolled as a voter in the name of Md. Ali and he also filed a suit in the Hon'ble High Court in 1953 and ultimately, he did not proceed with that suit in 1961. It will appear from the copy of the order of the High Court dated 13-9-1961, Ext E/l, that Md. Ali's suit was dismissed. There also, the name of Sk. Ziaur Rasul does not appear. There is no provision in Muhamaddan Law for adoption. In such circumstances, we disbelieve the plaintiff's version on this and hold that the real name of the plaintiff is Md. Ali and he was never known as Ziaur Rasul.
12. It will be pertinent to point that in the plaint, it was not stated that when that kobala, Ext. 1, executed in 1926, he was a minor and that kobala was wrongly taken in his name as a major. It will appear from that kobala that Sk. Ziaur Rasul, vendee of that kobala, was described as a shopkeeper. He cannot be permitted to make out a case outside his pleading. One fails to understand how a boy of six years could then be a shopkeeper. P. W. 3, Md. Ali, has stated in his evidence that in 1920, he was born.
13. Now, the important question arises whether the decree passed in Title Suit No. 2323 of 1976 was rightly passed. Let us first discuss the law on this. The leading English case on this is of Patch v. Ward in (1867) 3 Ch 203. Sir John Rott has stated in that case that in order to set aside an ex parte decree, the alleged fraud must be actual positive fraud, a meditated and intentional contrivance to keep the parties and the court in ignorance of the real facts of the case, and obtaining that decree by that contrivance. This, decision was followed by this Court in the case of Durga Gati v. Taherullah in (1940) 44 Cal WN 849: (AIR 1941 Cal 215). It will be sufficient to refer to the cases of Narsingh v. Rafikn in (1910) 14 Cal WN 507 and of Romesh in (1940) 44 Cal WN 999 at page 1001: (AIR 1940 Cal 536) to show that in the absence of of fraud, a suit does not lie to set aside an ex parte decree merely on the ground of non-service of summons. In the case of Atul v. East Bengal Commercial Bank Ltd. in : AIR1960Cal309 , it has been stated that mere non-service of summons is not enough to set aside an ex parte decree because if there was mere non-service of summons, that will be the subject matter to be decided under Order 9, Rule 13 of the Civil P. C. It will appear from the observations of Jenkins, C. J., in the case of Nanda Kumar v. Ram in (1914) 18 Cal WN 681 at p. 688 that a prior judgment cannot be set aside on a mere general allegation of fraud or collusion. It must be shown how, when, where and in what way the fraud was committed. It will appear from the cases of Durga Gati (supra) and of Romesh (Supra) that falsity of claim, perjured evidence, false representation of facts by themselves are not sufficient to set aside any decree in the absence of fraud preventing the plaintiff from placing his case before the Court. In the Bench case of Girish v. Kala Chand in : AIR1957Cal242 , it has been stated that in order to maintain such suit, the plaintiff has to prove two things, viz., fraudulent suppression of summons and also that the claim of that suit was false. In the case of Kunja Behari v. Krishnadhan in (1940) 44 Cal WN 912: (AIR 1940 Cal 489), it has been observed that falsity of the claim may be considered along with non-service of the summons as supplying the motive for and leading to the legitimate inference of fraudulent suppression. Let it be seen if these tests have been satisfied in this case.
14. Firstly about the question whether the summons of that suit was served. It will appear from the order-sheet of that suit, Ext. 3, that summons was duly served on Md. AH on 14-1-1977 and accepted by the court. Then the court passed the ex parte decree in question declaring that the plaintiff of that suit. (Md. Yunus) was the original owner of the disputed premises and he would recover khas possession of the disputed premises and obtain an injunction. The plaint and his service records, Ext. 2, show that Md. AH was on board a ship up to 31-10-1976, and again from 5-2-1977, i. e., he was not on sea in January, 1977.
15. The Process Server, D. W. 5, Tarak Banerjee, has said that he went to serve the summons. The present plaintiff was identified by D. W. Yunus and on such identification, he served summons on Md. AH, who refused to accept the same. So, he served it by hanging. There is a presumption that the official work was properly performed. There is nothing on the record to rebut such presumption of fact. We accept this evidence and find that the process of that suit was duly served on Md. Ali and it was not fraudulently suppressed.
16. There is no evidence or finding how, when, where and in what way the alleged fraud was committed.
17. Then about the next item whether the claim of that suit was false. There is no pleading or proof on this important point. Hence the suit filed on the ground of non-service of the process does not lie. The question of maintainability of the suit was pleaded. Still the learned Judge observed that there was no such pleading. The absence of any pleading or proof that the claim of that Title Suit No. 2323 of 1976 was fraudulently obtained by putting forward a false claim, is sufficient for the disposal of the suit No. 258 of 1978. The alleged fraud does not satisfy the test laid down in the aforesaid cases of Patch v. Ward (1867-3 Ch 203) (supra) and Nanda Kumar v. Ram (1914-18 Cal WN 681) (supra). Nevertheless, we shall discuss the other points also for the sake of competence.
18. Then about the next point whether the disputed kobala, Ext. 1 of 1926 was acted upon. There are two classes of benami transactions, one is a real transfer, in which title is intended to be conveyed for consideration and the other class of cases is incorrectly called benami because it is a sham transaction and the transferor retains title. In the first class of cases the question is who paid consideration and in the second one, the question is, if any consideration was paid. This was stated by Venkatrama Ayyar, J., in the case of Shree Meenakshi Mills in 0044/1956 : 1SCR691 and by Venkata-ramiah, J., in the case of Bhim v. Kan Singh in : 2SCR628 .
19. The case in the plaint was that AH Hossain used to manage Md. Ali's affairs. But P. W. 3 Md. AH says that so long as his mother was alive till 1948, she managed the affairs and after her death, he entrusted Ali Hossain with such management. Evidence cannot be allowed to be led on a point not made out in the plaint, vide the cases in : 1SCR895 and WBPC Bank v. S. Ghosh in (1980) 84 Cal WN 221.
20. It will appear from the evidence of the plaintiff, P. W. 3, Md. AH, that AH Hossain used to realize rent from the tenants of the suit property from 1924 till his death and he used to pay the ground rent to the landlord. The learned Advocate appearing on behalf of the appellant has drawn our attention to the certified copy of the extract of the cash book of the landlord's sherista, Ext. N, and also to landlord's portion of the rent receipts, Ext. L, to show that rent was realized regarding the disputed premises at 155, Keshab Chandra Sen Street, in the name of Ali Hossain from October, 1974, to June, 1975. The next certified copy of the extract of the cash book of the landlord's sherista is Ext. N/1, and the corresponding receipt of the landlord is Ext. C. They will show that from July, 1975, rent regarding that property was realised from Md. Yunus till December, 1975. That shows that for all practical purposes, Ali Hossain was the owner of that property. He exercised possession as such till his death which occurred in 1970 and even after his death, there was no mutation, as rent was realised in his name up to June, 1975. There is another important aspect of the case because a very strange statement was made by the plaintiff, P. W. 3, Md. Ali that for the first time, a copy of that title deed of 1926 was obtained by his sister in 1977 and thus, he came to know of the real facts. This also is a pointer that the claim is not a bona fide one, he has no title to the disputed property and the aforesaid kobala, Ext. 1, is a sham and fictitious transaction, which was never acted upon. We hold accordingly.
21. According to the provisions of Section 13(a) of the Evidence Act, if interest in a property is recognised by a transaction by a civil court, the same has evidentiary value. In the aforesaid ex parte decree of Title Suit No. 2323 of 1976, Ext. 3, Md. Yunus's title to the disputed property was declared by a court of competent jurisdiction. An order of eviction of the present plaintiff and an injunction as well was passed. The same is relevant under Section 13(a) against defendants in title suits Nos. 577 and 578 of 1976. We have already held that such decree was properly passed. That decree is thus conclusive and binding on Md. Ali. It is, therefore, held that the present plaintiff has no title to the disputed property and that Md. Yunus has alone title thereto.
22. Now, the short question remains to be decided whether Nabi Hossain and Aktar Hossain are Yunus's licensees. It has been pointed out on behalf of the appellant that even D. W. 9., Nabi, has admitted in his evidence that they were allowed to live in the disputed property. It has also been pointed out that notices of revocation were issued by the plaintiff's lawyer revoking that license, vide Exts. J. and J/l. That is sufficient for the purpose of revoking such licence. D. W. 2, Yunus, has stated that Nabi Hossain and Aktar Hossain were his licencees and their licenses were revoked. His evidence is believed. We, therefore, find that Nabi Hossain and Sk. Amir and Sk. Yunus were licensees and both the suits will be decreed. No remand is called for to give a chance to plaintiff to patch up his weak points.
23. Appeals Nos. 414, 415 and 416 of 1979 be allowed. The judgments and decrees appealed against are hereby set aside. Title Suit No. 258 of 1978 is dismissed. Title Suit No. 577 of 1976 be decreed. It is hereby declared that plaintiff has title to the disputed properly. He do evict the defendant from the premises in question and do get a decree for permanent injunction against defendant not to alienate the disputed property. Title Suit No. 578 of 1976 is also decreed. Plaintiff's title to the disputed property is hereby declared. He do evict the defendant. The latter is permanently restrained from transferring the disputed property.
24. There will be no order as to costs.
25. All interim orders are vacated. The deposits made in this Court by the appellant in respect of the rent realized may be withdrawn by him.
26. I agree.