JUDGMENT : Narasimham, J. - This is Plaintiff's second appeal against the concurrent decisions of the two lower Courts dismissing her suit under Order 21 Rule 63 CPC for recovery of possession of 6.33 acres of land in village Paiko Jamuna described in lot No. 1 of the plaint schedule. 2. The Plaintiff's husband Baishnab Charan Patnaik was a fairly well-to-do person of his village. But it appears that he began to squander away his property by his extravagant way of living and incurring debts. Defendant No. 1 who was one of his creditors obtained a money decree against him in O.S. No. 591/30 in the Court of the District Munsif of Aska and in execution of the same in E.P. No. 141/42 he got the disputed property attached on 1-3-43. The Plaintiff filed a claim case under Order 21, Rule 58 CPC claiming the disputed property as her own alleging that her husband's interest in the property had been sold away as early as 28-9-32 in a rent sale and purchased by one Binaik Panda who conveyed it to her by a sale-deed (Ext. 1) dated 13-10-39. She therefore alleged that her husband (judgment-debtor) had absolutely no interest in the property. The learned Munsif by his order dated 16-4-43 (Ext. 7) dismissed the petition without any investigation saying that it was filed after much delay. The property under attachment was, in due course, sold by the Court in execution of the decree. Thereupon the Plaintiff instituted the suit under appeal under Order 21, Rule 63 CPC for declaration of her title in respect of the property that was attached and sold. 3. Another item of property, 1.9 cents in extent, bearing survey No. 758 in the same village was also the subject matter in the claim case and in the suit as originally framed. It was described as lot No. 2 in the plaint schedule and the Plaintiff's claim in respect of that lot was based on a maintenance deed dated 25-10-35 (Ext. 2) executed in her favour by her husband (judgment-debtor). The decree-holder's contention was that the maintenance deed as well as the sale-deed (Ext. It was described as lot No. 2 in the plaint schedule and the Plaintiff's claim in respect of that lot was based on a maintenance deed dated 25-10-35 (Ext. 2) executed in her favour by her husband (judgment-debtor). The decree-holder's contention was that the maintenance deed as well as the sale-deed (Ext. 1) executed by Binaik Panda were fraudulent and collusive documents and that the' real owner of both the lots was none else but the husband of the Plaintiff who was the judgment-debtor in that execution petition and that these transfers were brought about with a view to defeat the rights of the decree-holder. 4. The learned Munsif, however, held that the maintenance deed was bone fide and valid and that the Plaintiff's husband lost all interest in lot No. 2 after execution of the maintenance deed in his wife's favour. He, therefore, decreed the Plaintiff's suit in respect of that lot but as regards lot No. 1 he held that the Plaintiff had failed to establish her title and therefore dismissed her suit. On appeal, the learned Subordinate Judge maintained the order of the trial Court. 5. Certain essential facts of the case are admitted. The disputed property originally belonged to the husband of the Plaintiff. It was brought to sale in execution of a rent decree in E.P. No. 129/30 and purchased by one Binaik Panda in public auction on 28-9-32 for a sum of Rs. 65/-. The sale certificate of the Revenue Divisional Officer was proved in the lower Courts and marked as Ext. 6. The Plaintiff has also proved the sale deed (Ext. 1) executed in her favour by the said Binaik Panda on 13-10-39 conveying the property to her. She also gave evidence on commission and examined some other villagers to show that after the sale she obtained possession of the disputed property. One of the attesting witnesses to the sale deed (Ext. 1) named Dinabandhu Sahu was also examined on her behalf. 6. The Defendants, however, contended that Binaik Panda was himself benamidar of the Plaintiff's husband being his intimate friend and co-villager and that purchase of the property in rent sale in 1932 (see. Ext. 6) was itself a collusive transaction and that the property continued in possession of Baishnab Charan Patnaik notwithstanding that purchase. They also urged that the sale-deed of 1939 (Ext. Ext. 6) was itself a collusive transaction and that the property continued in possession of Baishnab Charan Patnaik notwithstanding that purchase. They also urged that the sale-deed of 1939 (Ext. 1) executed by Binaik Panda in favour of the Plaintiff was also a fraudulent and collusive nature) that no title passed by the same and that it was only a contrivance to save the property fro attachment. Thus, in essence, the Defendants case was that not-withstanding the sale in execution of the rent decree in 1932 (Ext-6) and the subsequent conveyance by the auction purchaser Binaik Panda in favour of the Plaintiff the real title to the property remained all along with the judgment-debtor (Plaintiff's husband) and that consequently the attachment and sale in E.P. No. 129/30 was valid. The Defendants examined some witnesses to prove the continuous possession of the disputed property by the Plaintiff's husband and to show that no consideration passed at the time of the execution of the sale-deed by Binaik Panda. 7. Both the lower Courts though that the onus was on the Plaintiff not only to prove the due execution of the sale-deed from which she derived her title but also to affirmatively establish that it was not a fraudelent and collusive document. Hence the answers given by the Plaintiff's witnesses in cross examination were subjected to a strict scrutiny and on account of some discrepancies regarding the circumstances under which the consideration money was said to have been paid to Binaik Panda they held that the Plaintiff had failed to prove the passing of the consideration. As regards possession of the property also they preferred the evidence of the Defendants' witnesses to that of the Plaintiff and held that Binaik Panda never possessed the property and that it continued all along in the possession of Baishnab Char an Patnaik. The trial Court's conclusion was is follows After careful consideration of the evidence ad the circumstances in this case I hold that the Plaintiff has failed to establish her title to lot No. 1 of the plaint schedule land and that it is Defendant No. 3 who is the owner thereof. The Lower appellate Court relying on Mahadei v. Lachmi Narayan AIR 1947 All. 399 thought that the trial Court's view on the question of onus was correct. 8. The Lower appellate Court relying on Mahadei v. Lachmi Narayan AIR 1947 All. 399 thought that the trial Court's view on the question of onus was correct. 8. It appears to me that the findings of both the Courts are vitiated by their mistaken notion as regards burden of proof. It is true that as the Plaintiff in the case and as the unsucessful party in the claim case under Order 21, Rule 58 CPC the initial onus of establishing her title prima facie undoubtedly rests on the Plaintiff. But she has fully discharged this onus by proving the due execution of the sale-deed (Ext. 1) and also by proving the original sale certificate (Ext. 6) by virtue of which her vendor) namely Binaik Panda obtained title to the property in 1932. These two documents coupled with the oral evidence clearly established her title. If the Defendants alleged that these were benami collusive and fraudulent deeds and that the title to the property remained all along with the Plaintiff's husband the burdeno would shift on them to establish these facts. It will not be proper to cast on the Plaintiff the duty of establishing affirmatively that these were not collusive or fraudulent documents and that the title did not subsist in her husband notwithstanding the rent sale in favour of Binaik Panda and the subsequent sale-deed (Ext. 1). It is true that if the evidence led by the Plaintiff shows that the circumstances under which the claimed title were not free from suspicion she will have to remove that suspicion. But there is nothing suspicious in the case as put forward by the Plaintiff and her witnesses. The mere fact that she is the widow of the judgment-debtor would not by itself lead to a suspicion that all these transactions were benami and fraudulent. In fact the trial Court itself held that the maintenance deed (Ext. 2) executed in the Plaintiff's favour by her husband in 1935 was genuine. It is also an admitted fact that the Plaintiff's husband was, at all material times, waiting his property by his extravagant habits. Under these circumstance, there is nothing suspicious if he defaulted in payment of the rent and thereby allowed the disputed property to be sold away for arrears of rent and purchased for a sum of Rs. 65/- by Binayak Panda. Under these circumstance, there is nothing suspicious if he defaulted in payment of the rent and thereby allowed the disputed property to be sold away for arrears of rent and purchased for a sum of Rs. 65/- by Binayak Panda. There is also nothing suspicious if the Plaintiff, with the money that she obtained from her father and with the income derived from the property given to her for maintenance in 1935 by her husband by virtue of Ext. 2, was able to purchase the disputed property in 1939 from Binaik Panda. It is true that the evidence regarding possession of the property by Binaik Panda from 1932 to 1939 is rather weak. But that circumstance by itself will not affect the title. On the other hand, it will merely show that he suffered the fact of the usual auction purchaser being unable to obtain actual possession of the property and consequently in sheer despair sold it away to the Plaintiff after six years of fruitless efforts. From the mere fact that he was not able to obtain possession of the disputed property it will be hazardous to jump to the conclusion that he was himself the benamidar of Baishnab Charan Patnaik. He is not a relation of Baishnab and apart from the fact that they both belong to the same village there was nothing to show that he had any motive in trying to help Baishnab. An attempt was made on behalf of the Defendants to show that in the rent-sale of 1932 the purchase money was paid by Baishnab Charan Patnaik and not by Binaik Panda (see the evidence of P.W. 2). But this witness admitted his cross-examination that he was not present either at the time of Court-sale or at the time when Binaik Panda deposited the money before the Revenue Court and that he heard about it from Baishnab Charan Patnaik. His hearsay evidence on this point can obviously carry no weight. Thus when there is no evidence to show that Binaik Panda's purchase was itself benami on behalf of Baishnab when the documents of title (Exts. 1 and 6) clearly establish the Plaintiff's title to the property there was no justification for both the Courts to dismiss the suit merely because the Plaintiff's witnesses in cross-examination had made some discrepant statements as regards the circumstances under which the consideration of Ext. 1. was paid. 9. 1 and 6) clearly establish the Plaintiff's title to the property there was no justification for both the Courts to dismiss the suit merely because the Plaintiff's witnesses in cross-examination had made some discrepant statements as regards the circumstances under which the consideration of Ext. 1. was paid. 9. There is one -important circumstance to which due weight was not given by both the Courts. Ordinarily such collusive transactions are entered into by judgment-debtors with a view to save their property from the clutches of their creditors. But in this case it is well established by the evidence of the Defendants's own witnesses that the judgment-debtor Baishnab Char an Patnaik still possesses considerable property. Thus D.W. 5 admitted in cross-examination that Baishnab has got 200 bharanams of land. His creditors will therefore be able to seize that property for the purpose of satisfying their debts. It is therefore difficult to accept the argument of the Defendants that in respect of the disputed property which is only about 6.33 acres in extent Baishnab attempted by means of benami, fraudulent and collusive transactions to defeat the just dues of his creditors. The motive which is very essential to prove the benami, collusive and fraudulent nature of these transactions is totally lacking in the case. 10. The law regarding the burden of proof in a suit under Order 21, Rule 58 CPC has been the subject of innumerable decisions. In AIR 1927 237 (Privy Council) it was held that where the Plaintiff in such suit has established that he was the ostensible owner of the property under a duly registered deed of transfer it was the duty of the party claiming to attach the property for some-body else's debt to show that the sale was a fraudulent out. Following this decision, in Gillu Mal and Another Vs. Manohar Das Jai Narain and Others, a Division Bench of the Patna High Court held that where a petition under Order 21, Rule 58 is dismissed without investigation and a subsequent suit filed under Order 21, Rule 68 his possession should not be worse than what it was if no claim case had been brought. This decision was however explained in Mahadeo Missir Vs. Ram Prasad and Others. This decision was however explained in Mahadeo Missir Vs. Ram Prasad and Others. In AIR 1930 255 (Privy Council) their Lordships held that in a suit under Order 21, Rule 63 where the Plaintiff's claim was based on certain deeds it was his duty to establish to the satisfaction of the Court that the deeds in question were bonafide and intended to convey title to the Plaintiff from the transferor. This Case may, however, be distinguished from the present one on the ground that there the claim case was disposed of on contest. In Zinda Ram v. Ramrup Das AIR 1935 Pat. 231 there was an interesting discussion about the burden of proof in cases of this type. Subsequently in AIR 1938 290 (Privy Council) their Lordships of the Privy Council observed that the question of burden of proof in a suit under Order 21, Rule 63 might require further consideration. But in their latest pronouncement in Annamalai v. Ramanathan AIR 1947 P.C. 98 they seem to indicate that if the Plaintiff succeeds in establishing by prima facie evidence the passing of title in his favour by the due execution of the deed of transfer the burden of proof would shift on the Defendant to show that title did not pass. To a similar effect are the observations of the Allahabad High Court in Amar Nath Vs. Dwarka Das Jai Kishun Das. The case relied on by the lower appellate Court Mahadei v. Lachmi Narayan AIR 1947 All. 399 is distinguishable because in that case there was an admission by the Plaintiff herself that the document in question was executed in her name by her husband. Thus the nominal nature of the document on which she based her title was admitted by the Plaintiff and consequently she failed to establish even prima facie her case so as to shift the burden of proof on the Defendant. 11. Mr. Patnaik on behalf of the Appellant however urged that as the Plaintiff's claim case was summarily rejected without investigation due to delay the principles laid down by the Patna High Court in Gillu Mal v. Manohar Das which were followed by the Madras High Court in Elayaperumal v. Vellaikannu would apply and that the burden of proof would be on the Defendants to show that the title deed in question was fraudulent and collusive. It appears to me that the fact that the claim case was not contested on merits would not make any material change on the question of burden of proof. The Plaintiff must establish her title before she can get a declaration in her favour. For that purpose if she relies on a deed of transfer she has to prove it in the usual way. But once she has established by prima facie evidence her title the burden would shift on the party challenging the transaction as fraudulent and collusive. This shifting of the burden arises because apparent state of things should be taken as real until the contrary is proved. To say that the Plaintiff must farther show that the document in question is not collusive or fraudulent or benami would be to ask her to prove the negative which was deprecated by their Lordships of the Privy Council in Annamali v. Ramanathan. 12. In the present case, as already pointed out, apart from some discrepancies as regards the circumstances under which the consideration of Ext. 1 passed from the Plaintiff to Binaik Panda the entire evidence on record fully supports the Plaintiff's title. There is no suspicious circumstance to justify the inference that the deed was-of a collusive nature. On the other hand, the large extent of land still in the possession of the judgment-debtor (Plaintiff's husband) would indicate that there was no motive for such collusive transactions. 13. I would, therefore, allow the appeal, set aside the judgments of both the Courts and declare the Plaintiff's title to the disputed property described in lot No. 1 of the plaint schedule and further declare that she was not bound by the proceedings in E.P. No. 141/42 in the Court of the District Munsif of Aska. The Plaintiff is entitled to costs throughout. Mohapatra, J. 14. I agree. Final Result : Allowed