IN THE COURT OF THE SENIOR CIVIL JUDGE AT BODHAN
Present: SMT. B. PRATHIMA, B.L., LL.M.,
SENIOR CIVIL JUDGE, BODHAN
Dated this the 1st day of May, 2015
O.S. No. 32 of 2012
Between:-
Sri Ganga Sangameshwar s/o. Late Ganga Mallaiah, age 55 years, occu: business, R/o.H.No. 8-8 Pitlam village and mandal, Dist. Nizamabad (A.P.) presently residing at Hyderabad (A.P.)
..Plaintiff
A N D
1. Smt. Ganga Rukkavva w/o. Late Ganga Mallaiah, age 75 years, occu: Household, R/o. Pitlam village of RM: Pitlam, Dist. Nizamabad.
2. Sri Syed Abdul Raheem s/o. Syed Abdul Ghani, Muslim, age 35 years, occu: agriculture, R/o. H.No. 9-96/1, Pitlam village and mandal, Dist. Nizamabad.
..Defendants
This suit having come before me on the 10th day of April, 2015 for hearing and disposal in the presence of Sri G. Shyam Rao, Advocate for the Plaintiff and Sri V. Sangam, Advocate for Defendants No.1 and 2, and having stood over for consideration till this day the court made the following:- :: J U D G M E N T ::
1.This suit is filed by the sole plaintiff seeking to declare the Registered Sale
Deed Doct. No.2604/2011 dt.16-11-2011 as null and void and not binding on the plaintiff and to restrain D2 from interfering in the peaceful possession and enjoyment of the plaintiff over the suit schedule agricultural land.
2.Brief averments of the plaint are as follows:
Defendant No.1 is the mother of the plaintiff and Defendant No.2 is the purchaser of the property. Due to misunderstandings between plaintiff and his father late Ganga Malliah, they approached the elders and a settlement was held in their presence. Father of plaintiff executed a consent agreement agreeing not to sell the property. The suit schedule agricultural land in Ac.2-05 gts in
Sy.No.192/AA is in possession of the plaintiff as per the settlement. Plaintiff’s father and mother filed a maintenance case vide MC No.4/1998 on the file of 2 OS No.32 of 2012
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Hon’ble JFCM, Banswada and it was decided in their favour. Plaintiff filed
Revision vide RP 5/2000 before the District Court, Nizamabad and the same was dismissed. Plaintiff is sending amount by complying the orders of the court. After death of plaintiff’s father, plaintiff came to know that his father executed sale deed for open plot corresponding to H.No.6-73 in Sy.No.224/A Plaintiff’s father had no right to alienate it. Plaintiff filed suit for cancellation of sale deed vide OS 57/2007 and the same was decreed in favour of the plaintiff. Plaintiff filed EP 11/2012 seeking possession. Plaintiff also sought injunction restraining from alienating the
B schedule in said suit. Plaintiff came to know that his mother D1 executed a registered sale deed in favour of D2 without his knowledge violating the court decree. As per the settlement deed, plaintiff is a coparcener and as per Hindu
Succession Act, he is a coparcener having right of inheritance. After execution of the sale deed, D2 tried to occupy the suit property. Hence the suit.
3-Defendants No.1 and 2 filed separate written statements, the averments of which are same and are as follows:
D1 purchased the suit land on 09-07-1980 from its original owner
Bagothula Hanmandlu under a registered sale deed Doct. No.1758/1980 of SRO,
Banswada. Since then, D1 is in enjoyment of said land. For her necessities D1 sold it to D2 by executing a registered sale deed Dt. 16-11-2011 and from then D2 is in possession of it. D1 is not aware about filing of OS 57/2007 and she came to know the same after receipt of suit copies in the present suit. Plaintiff is no way concerned with the suit land and it was the self acquired and Stridhan property of
D1. Since last 26 years, there is no cordial relationship between the plaintiff and
D1 and her husband. Hence, the suit may be dismissed.
4-Basing on the above pleadings, the following issues were framed for trial on 08-08-2012:
1. Whether the plaintiff is entitled for declaration that the Registered Sale Deed Doct. No.2604/2-11 dt.16-11-2011 is null and void and not binding on the plaintiff?
2. Whether the plaintiff is entitled for the relief of permanent injunction restraining the 2nd defendant from interfering in the peaceful possession and enjoyment of the plaintiff over the suit property?
3. To what relief?
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5- In support of the plaintiff's case, plaintiff himself is examined as PW1, and one of the attestor is examined as PW2, and elderly person of the village is examined as PW3, and got marked Ex.A1 to A7. The defendants No.1 and 2 examined themselves as DW1 and 2, and attesting witness to the registered sale deed is examined as DW3 and got marked Ex.B1 to B7.
Issue No.1:
6-The admitted facts of the case are that plaintiff is the son of late Ganga
Malliah and D1 Ganga Rukkavva. It is also an admitted fact that the relationship between the plaintiff and his parents is not cordial from last more than 30 years.
D1 and her husband Ganga Malliah filed MC of 1998 U/sec. 125 Cr.P.C. on the file of JFCM, Banswada claiming maintenance from the plaintiff. Said petition was allowed granting maintenance to D1 and her husband. Aggrieved by granting of maintenance, plaintiff preferred RP 5 of 2000 on the file of Hon’ble District
Court, Nizamabad and the same was dismissed.
7-Plaintiff claims that when things stood thus, there was a settlement between himself and his father before the village elders where under his father executed a consent agreement agreeing not to sell the properties. Plaintiff further stated that his father had only limited right in the properties i.e. only to enjoy as per the settlement and without any right his father alienated H.No.6-73 in Sy.No.224/A and he filed OS 57/2007 seeking for cancellation of the registered sale deed with respect to above house and he also sought injunction against his mother restraining her from alienating other properties including the present suit land and said suit was decreed. Plaintiff further claimed that his mother disobeyed the decree of the
Court in OS 57/2007 and sold the suit property to D1. Averring so, plaintiff sought to cancel the registered sale deed with respect to suit land and also sought injunction against the defendants claiming to be in possession of the suit land.
8-The subject of the present suit is Ac 2-05 gts agricultural land in
Sy.No.192/AA. Plaintiff claims right over the suit land on two grounds Viz., that the properties are ancestral properties and his father executed a settlement in his favour agreeing not to sell the properties (2) that there is a Judgment and Decree of this Court in OS 57/2007 where under D1 was restrained from alienating the suit property. D1 denied any such settlement deed and denied having any knowledge about the earlier suit OS 57/2007. To be entitled to the relief of cancellation of Ex.A4 registered sale deed, plaintiff shall prove that - 4 OS No.32 of 2012
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•The Judgment and Decree in OS 57/2007 are binding on D1 and D2 •Plaintiff is having a right in the suit land.
9.To prove his case plaintiff relied upon both oral and documentary evidence.
The chief affidavit of PW1 is reiteration of the facts pleaded in the plaint. As per the plaint, plaintiff claims right to suit land by virtue of the alleged settlement deed executed by his father and the Decree of the Court in OS 57/2007. Evidently, said settlement deed is not filed before this Court. There is not even the date of the settlement deed in the plaint. Ex.A1 is the Plaint in OS 57/2007. OS 57/2007 was filed with respect to five items of properties. They are 1) H.o.7-16 in Pitlam village. 2) Ac02-05gtrs in Sy. No. 192/B 3) H.No 7-93 4) H.No.8-8 and 5)
H.No.13-64. Two reliefs were sought in said suit The first relief was for cancellation of registered sale deed Doct. No. 1081/2005 dt. 16-04-2005 said to have been executed by D1 in favour of D2 therein with respect to H.No.7-16 of
Pitlam village. The second relief was to restrain D1 from alienating the other 4 items in any manner. In said plaint also, plaintiff claimed that there was settlement deed between himself and his father and in view of said settlement his father had only limited right as said property is ancestral property. Averring so, he sought to cancel the registered sale deed dt.16-04-2005. So far as the other properties are concerned, plaintiff failed to state the nature of those properties and in what way he got right in them. He claimed to be in possession of the remaining four items mentioned above and stated that he developed the said property by expending huge amount.
10.A perusal of the Judgment and Decree in OS 57/2007 dt 27-06-2001 shows that D1 and D2 in said suit appeared through their counsel but failed to file any written statement and were set exparte. D1 herein who is also D1 in the earlier suit denies knowledge of filing OS 57/2007. At the time of giving evidence in the present suit, D1 who is examined as DW1 is shown to be aged 78 years. She was specifically asked about the earlier suit. She stated that she does not remember if she received summons in the earlier suit OS 57/207 and she does not know if a direction was given in said suit restraining her from alienating the suit land and other properties. Though DW1 failed to recollect her memory about her appearance or non appearance in the earlier suit, the Judgment in OS 57/2007 shows that D1 and D2 therein appeared in said suit through their counsel and sought time to file written statement but failed to do so.
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11.In the light of the above facts, this court has to see how far the Judgment and Decree in Os 57/2007 is binding on D1 and D2. From the pleadings in OS 57/2007 there is no affirmation by plaintiff on the interest he has in the suit land except claiming that he developed it by spending huge amount. As seen from the
Judgment in the earlier suit, plaintiff did not file any single document to show his interest in this land. Evidently, the alleged settlement deed is also not marked.
12.Coming to the present suit, in the plaint in this case also, plaintiff does not plead as to how he is interested in the suit land except saying that there was a settlement between himself and his father and that there is a decree in OS 57/2007 against his mother from alienating the suit land. For the first time, from the written statement of the defendants it has come into light that the suit land stands in the name of D1 by virtue of a registered sale deed dt. 09-07-1980 in her name.
There is absolutely no reference to this sale deed in the earlier suit OS 57/2007.
There is not even an averment by the plaintiff that this property stood in the name of his mother. Even after the defendants filed their written statement in the present suit claiming that D1 was the absolute owner of the suit land by virtue of registered sale deed of the year 1980, plaintiff failed to file any rejoinder and failed to give any particulars as to how he developed the suit land.
13.In his chief affidavit in the present suit also plaintiff does not refer to this property standing in the name of his mother by virtue of a registered sale transaction or other wise and reaffirms that he spent huge amount and developed the property. In his cross-examination when questioned about the registered sale deed in favour of his mother, plaintiff admits that the suit land stands in the name of his mother. He however added that he provided the funds for purchasing the suit lands. Plaintiff again changed his version during the course of cross examination of DW1. A suggestion was given to DW1 that the suit lands were purchased from out of the joint family ancestral properties. DW1 categorically denied this suggestion and she affirmed that the suit lands are her own lands.
Significantly, these pleas were not taken earlier in any proceedings by the plaintiff.
As a matter of fact, the present age of the plaintiff is shown to be 55 years. The age of the plaintiff in the year 1980 would have been only 20 years and it is not believable that at that age plaintiff was earning for himself and he had funds with him with which he purchased the suit land but in the name of his mother. There is absolutely no basis for these pleas and they appear to be nothing afterthoughts to 6 OS No.32 of 2012
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get over the factum of existence of registered sale deed of the year 1980 in the name of plaintiff’s mother with respect to the suit land. For the first time plaintiff during the course of trial pleads benami transaction.
14.The question with regard to acquisition of property in benami came up for consideration before various Courts in India and the law has been set at rest that if a person claims any transaction as benami transaction, then the law requires him to establish this fact for the reason that the person in whose name the property is purchased is presumed to be the real owner of the property and this question has been gone in detail by the Apex Court in the case of Jaydayal Poddar Vs. Bibi
Hazra (MANU/SC/0332/1973 : AIR 1974 SC 171:1974 (I) SCC 3 where the
Apex Court has held as under (at page 172 of AIR) :- "It is well settled that the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner, always rests on the person asserting it to be so. This burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly proves the fact of benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of a benami is the intention of the party or parties concerned; and not un often, such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him; nor justify the acceptance of mere conjectures or surmises, as a substitute for proof. The reason is that a deed is a solemn document prepared and executed after considerable deliberation and the person expressly shown as the purchaser or transferee in the deed, stalls with the initial presumption in his favour that the apparent stale of affairs is the real state of affairs. Though, the question whether a particular sale is benami or not, is largely one of the fact, and for determining this question, no absolute formulae or acid test, uniformly applicable in all situations, can be laid down; yet in weighing the probabilities and for gathering the relevant indicia the Courts are usually guided by these circumstances :
1. the source from which the purchase money came;
2. the nature and possession of the property, after the purchase;
3. motive, if any, forgiving the transaction a benami colour;
4. the position of the parties and the relationship, if any between the claimant and the alleged benamidar;
5. the custody of the title deeds after the sale and
6. the conduct of the parties concerned in dealing with the property after the sale." 15-A Division Bench of Patna High Court had occasion to discuss the above
Judgment of the Apex Court and Judgments of various High Courts on the aspect of benami transaction in the case reported in AIR1998Pat1 between Rukaiya 7 OS No.32 of 2012
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Begum and Ors. Vs. Fazalur Rahman and Ors. The relevant paragraphs are extracted hereunder.
“In Bhim Singh v. Kan Singh MANU/SC/0516/1979 : AIR 1980 SC 727 the Apex Court following the decision rendered in the case of Jaydayal (supra) reiterated the same principle and held as under (at page 734): "The principle governing the determination of the question whether a transfer is a benami transaction or not may be summed up thus :
(1) the burden of showing that a transfer is a benami transaction lies on the person who asserts that it is such a transaction; (2) if it is proved that the purchase money came from a person other than the person in whose favour the property is transferred, the purchase is prima facie assumed to be for the benefit of the person who supplied the
purchase money, unless there is evidence to the contrary;
(3) the true character of the transaction is governed by the intention of
the person who has contributed the purchase money and
(4) the question as to what his intention was has to be decided on the basis of the surrounding circumstances, the relationship of the Parties, the motives governing their action in bringing about the transaction and their subsequent conduct etc.''
The Apex Court while considering the similar question in Union of India v. Moksh Builders and Financers MANU/SC/0057/1976: AIR 1977 SC 409 has held as under (at page 413):
"The burden of proof is, however, not static and may shift during the course of the evidence. Thus while the burden initially rests on the party who would fail if no evidence is led at all, after the evidence is recorded, it rests upon the party against whom judgment would be given if no further evidence is adduced by either side i.e. on the evidence on the record. As has been held by this Court in Kalwa Devdattam v. Union of India MANU/SC/0106/1963 : AIR 1964 SC 880:(1964) 3 SCR 191 that where evidence has been led by the contesting parties on the question in issue, abstract consideration of onus are out of place, and the truth or otherwise of the case must always be adjudged on the evidence led by the Parties. This will be so if the Court finds that there is no difficulty in arriving at a definite conclusion. It is therefore necessary to weigh the evidence in this case and to decide whether, even if it were assumed that there was no conclusive evidence to establish or rebut the "benami" allegation, what would, on a careful assessment of the evidence, be a reasonable probability and a legal inference from relevant and admissible evidence."
In the ease of S. K. Devi v. J. P. Singh 1962 BLJR 314 the question for consideration before the Apex Court was as to whether the property standing in the name of the wife shall be accepted as benami purchase by the husband in the name of his wife. The Apex Court in its judgment laid down the following principle of law:
"The law with regard to benami transactions where the property is alleged to have been bought in another's name is well settled. The burden of proof is, to begin with, on the party pleading that a transaction is benami. A variety of circumstances are relevant in this connection like the source of 8 OS No.32 of 2012
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the consideration for the acquisition of the property, the possession of the property, the conduct of the parties or their predecessors in relation to it, the custody of the title deeds and so on. The most important fact, however, is the source of the money, but the other facts also play varying parts. This burden does not rest in one place but shifts to the other side, and it increases if the original parties to the transaction are dead. Suspicious circumstances are not sufficient to prove the benami character of a transaction; but if evidence on the other side does not exist, even slight but forceful evidence on the part of the person alleging the benami nature of the transaction may be sufficient."
Similar question came up for consideration before a Bench of Patna High Court in the case of Bijoy Kant Dey v. Radha Kant 1983 BLT 100 where his Lordship has held as under :
"Before me also the finding that the defendant was not a minor in the year 1940 was not challenged. Learned counsel for the two sides also agreed that on the facts of this case. The determining factor will be the finding as to who paid the consideration money. They also agreed that on the peculiar facts of this case, the other tests regarding motive, custody of documents, relationship and possession fall in the background. I think, the learned counsel were right. The question, therefore, is as to who paid the consideration money. But before I take up that question, I want to make it clear that the onus to prove the acquisition by the plaintiff in the Benami name of the defendants lies heavily on the plaintiff. The apparent state of affair is the real state of affair unless proved to the contrary. The Sale deeds stand in the name of the defendant that is the apparent state of affair.” 16-The above law postulates that the burden is wholly on the plaintiff to establish that the sale transaction of the suit land of the year 1980 in the name of his mother was a benami transaction. The above discussion shows that the plaintiff absolutely failed to prove any one of the circumstances enumerated in the above judgments. Plaintiff also examined PW2 and PW3 to show that the funds for purchase of the suit lands was provided by him. PW2 deposed that on o9-07-1980, plaintiff approached him along with the vendor Bagathala Hanmandlu R/o.
Yellappa R/o Pitlam village, he attested the said registered sale deed of 1980 as witness, one Kistiah scribed the document and Venkati also signed on it and plaintiff purchased the property and paid sale consideration of Rs.1300/- to the vendor and the vendor executed the sale deed in the name of plaintiff’s mother at the instance of the plaintiff. The statements in the chief affidavit of PW2 itself are not believable for the reason that these facts were not spoken to by the plaintiff earlier at any time. Even his chief affidavit is also silent. The cross-examination of PW2 shows that he has nil knowledge about the purchase of the suit land. He stated that he do not know who paid the sale consideration amount and if it was paid by D1. He stated that the original owner was Ganga Malliah and it was 9 OS No.32 of 2012
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succeeded by the plaintiff. It is not the case of the plaintiff that the original owner was his father Ganga Malliah. Furthermore, till the date plaintiff was subjected to cross examination in the present suit, it was never the case of the plaintiff that he provided funds for purchasing the suit lands or that it was purchased out of joint family ancestral property income. As a matter of fact these two pleas are diametrically opposite. Providing funds by the plaintiff individually is different from providing from out of the joint family funds. It is also important to note that the plaintiff is admittedly having four sisters, but plaintiff claims the entire property of his father be it ancestral or otherwise as his property to the exclusion of his sisters. It is not his case that his father made a testamentary disposition in his favour by way of will bequeathing his share in the ancestral properties. When such is the case, the sisters of the plaintiff also get right in the properties be it ancestral or joint family properties.
17-Plaintiff failed to prove that he purchased the suit land with his own funds in the year 1980 or that it was purchased in the name of his mother out of the joint family funds. The apparent state of affairs is that the suit land was purchased in the name of the 1st defendant and she was holding the same as absolute owner and possessor. She sold the house to D2 under a registered sale deed.
18-The plaint and Judgment in OS 57/2007 is very clear that the plaintiff suppressed the fact that the suit land was purchased in the year 1980 under a registered sale deed and that said property is standing in the name of his mother from said date. Suppression of such a material fact before the Court is nothing but fraud played upon the Court by the plaintiff as observed in several Judgments of the Apex Court and High Courts. What is fraud and how it shall be proved and the burden of proof are dealt with in several authorities. Relevant paragraph in the relevant judgment is extracted hereunder:
S P Chengalvaraya Naidu V/s Jagannath 1993 Law Suit (SC) 908
[7] The High Court, in our view, fell into patent error. The short question
before the High Court was whether in the facts and circumstances of this
case, Jagannath obtained the preliminary decree by playing fraud on the court. The High Court, however, went haywire and made observations which are wholly perverse. We do not agree with the High Court that "there is no legal duty cast upon the plaintiff to come to Court with a true case and prove it by true evidence". The principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting 10 OS No.32 of 2012
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justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax-evaders, bank-loan- dodgers and other unscrupulous persons from all walks of life find the court process a convenient lever to retain the, illegal-gains indefinitely. We have no hesitation to say that a person whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation.
[8] The facts of the present case leave no manner of doubt that Jagannath obtained the preliminary decree by playing fraud on the Court. A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to got an advantage.
19-Thus, there can be only one conclusion and it is that plaintiff filed OS 57/2007 suppressing material facts concerning the suit land and the Judgment and
Decree in OS 57/2007 so far as the suit land is concerned is not binding on the defendant No.1. Defendant No.1 being the absolute owner of the suit land holds the same as absolute owner and she got every right to alienate the land to the person of her choice. The sale transaction of the suit land by the absolute owner
D1 in favour of D2 is a bonafide sale transaction admitted as such by D1 and the same need not be cancelled. This issue is decided against the plaintiff.
Issue No.2:
20-This issue concerns possession of the suit land. Plaintiff claiming to be in possession of the suit land sought to restrain the defendants from interfering in his peaceful possession and enjoyment over the suit land. A finding has been given in
Issue No.1 that the plaintiff has no right in the suit land and that it belongs to his mother D1. Irrespective of the decision on title to the suit land, this court has to see whether plaintiff is in possession of the suit land and if needs to be protected.
Plaintiff claims that he is in possession of the suit land. He fails to give from when he is in possession of the suit land. Plaintiff did not file any single document to show that he is in possession of the suit land. PW2 who was examined to support the case of plaintiff stated that D1 was in possession and enjoyment of the suit land purchased by her and he heard that D2 purchased the suit land. He further stated that presently the possession of the suit land is with D2. Thus, this testimony of PW2 alone is sufficient to show that earlier D1 was in possession of suit land and presently D2 is in possession of the suit land. I hold that plaintiff 11 OS No.32 of 2012
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failed to prove his possession over the suit land and he is not entitled for any relief of permanent injunction. This issue is decided against the plaintiff.
Issue No.3:
21-In view of the findings given in Issues No.1 & 2, the suit of the plaintiff shall fail.
IN THE RESULT, the suit is dismissed with costs.
Typed by me and Corrected by me. Pronounced by me in the Open Court on this the 1st day of May, 2015.
SENIOR CIVIL JDUGE,
BODHAN
Appendix of evidence Witnesses examined for
Plaintiff
PW1: S. Ganga Sangameshwar PW2: P. Saireddy PW3: Y.Narayana Reddy
Defendants
DW1: Smt. Ganga Rukkavva DW2: Syed Abdul Raheem DW3: D. Venu Gopal
Exhibits marked for
Plaintiff
Ex.A1: CC of Plaint in OS 57 of 2007. Ex.A2: CC of Revision Order Ex.A3: CC of Judgment in OS 57/2007 Ex.A4: CC of sale deed dt. 16-11-2011 Ex.A5: CC of sale deed dt. 16-4-2005 Ex.A6: CC of paper publication. Ex.A7: CC of application to MRO.
Defendants:
Ex.B1: CC of Regd.sale deed dt.9-7-1980 Ex.B2: CC of sale deed dt. 16-11-1980 Ex.B3: CC of mutation proceedings dt.14-1-2012 12 OS No.32 of 2012
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Ex.B4: Meseva generated pahani Ex.B5: CC of FormNo.II pahani for the year 2011-12. Ex.B6: Original title deed pass book issued by Tahsildar, Pitlam. Ex.B7: Pattedar passbook issued by Tahsildar.
SENIOR CIVIL JUDGE,
BODHAN.