JUDGMENT : Mohapatra, J. - It is the unsuccessful Plaintiff in both the Courts below who is the Appellant in this second appeal which arises out of a suit for ejectment on the allegations that the Plaintiff- had purchased the suit property by virtue of a title-deed on 6th August, 1921 paying a consideration of Rs. 340/-, that he was in possession of the suit property till the year 1937, sometime in Khas and sometime through different tenants; that it was in May, 1937 that he let out the house property in dispute to Defendant No. 1. The Defendant was occupying the house as a tenant till the year 1942 and inspite of Plaintiff's notice the Defendant is not vacating and in his reply dated 19th June, 1949, the Defendant asserts adverse title against the Plaintiff. 2. The main defence was that in fact the property in dispute was purchased in the year 1921 benami in the name of the Plaintiff, the real purchaser being Defendant No. 1 who paid he consideration money and in consequence of the said purchase he was in possession of the property all along. There was no relationship of landlord and tenant between the Plaintiff and Defendant No. 1. 3. Both the Courts below have dismissed the Plaintiff's suit finding that the property really belonged to the Defendant even though it was purchased in the name of the Plaintiff. The Courts below have dismissed the Plaintiff's suit on the further ground that the present suit is not maintainable for ejectment treating the Defendant as a mere trespasser inasmuch as the Plaintiff had failed to prove the relationship of landlord and tenant. The third ground on which the Plaintiff's suit has been thrown off is that the Plaintiff has not been able to prove possession within 12 years of the suit. 4. I will take out the point which is the main defence as to who is the real owner of the property in suit. In my opinion the finding of the lower appellate Court regarding the benami character of the transaction is so halting and unsatisfactory that it cannot be upheld in second appeal. 4. I will take out the point which is the main defence as to who is the real owner of the property in suit. In my opinion the finding of the lower appellate Court regarding the benami character of the transaction is so halting and unsatisfactory that it cannot be upheld in second appeal. It is very well know that the different tests which have got to be examined for the purpose of determination whether a particular transaction is benami or not are (i) the source of the consideration money.; (ii) the custody of the title-deed; (iii) the motive for the transaction; (iv) the relationship between the parties; and (v) the possession. Indeed the different tests of the above ones enumerated will play important parts in different cases. In the case before us the lower appellate court, however, has found on the question of the source of the consideration money that there is no satisfactory evidence worth the name to show that the consideration money was supplied by Defendant No. 1 or his wife. The finding of the lower appellate Court regarding the custody of the document also is definitely in favour of the Plaintiff inasmuch as all the relevant papers evidencing the title of the property are coming from the custody of the Plaintiff excepting the house-tax receipts &ad the demand notice. On the question of banami character of the transaction the delegation of the Defendant is to the effect that he got the house in the name of the Plaintiff as he had disputed with his brothers and apprehended some trouble if the house was taken in his name. But the fact remains as it is admitted by Defendant No. 1 that the dispute ceased ever since 1937. The lower appellate Court was rightly impressed with the feature that Defendant No. 1 does not explain why the suit house still continued in the name of the Plaintiff, there being no document of reconveyance nor was there any mutation transferring to the name of the Defendant. There are other circumstances also which were considered by the Courts below and were found to be in favour of the Plaintiff, that is, immediately after the transaction in dispute in the year 1921, the Plaintiff mortgaged the suit house to different persons in the years 1922 and 1923 as per Exts. There are other circumstances also which were considered by the Courts below and were found to be in favour of the Plaintiff, that is, immediately after the transaction in dispute in the year 1921, the Plaintiff mortgaged the suit house to different persons in the years 1922 and 1923 as per Exts. 5 and 6, and further to the Co-operative Urban Bank in 1934 and 1939 as per Exts. 2 and 1 respectively. It appears therefore that most of the teats are in favour of the person in whose name the title-deed stands. The onus, undoubtedly, is upon the person alleging the benami character of the transaction on the ground that what appears from the title-deed is not the rear state of affairs. The only circumstance on which the Courts below have decide in favour of the Defendant's title is that the Defendant is all along in possession of the disputed house. I will quote the final finding of the lower appellate Court to show how unsatisfactory it is to stand any scrutiny in second appeal. The finding is: On viewing the evidence as a whole it is not improbable that the amount of consideration might have been advanced by the Defendant 1 to his wife and she might have paid the same to the Plaintiff. Further he finds: Hence from a consideration of all these circumstances, though there seems to be a suspicion as to the nature of the benami transaction, still the balance of probabilities point to the irresistible conclusion that the suit house was acquired by the Defendant No. 1 in the name of the Plaintiff. In view of the manifest position of law that the onus is very heavy upon the Defendant to establish by very satisfactory and cogent evidence as to the benami nature of the transaction with reference to the tests enumerated above, the findings quoted above cannot be upheld. In my view, therefore, the real title-holder is the Plaintiff in whose name the title-deed stands as the Defendant has not been able to establish the benami character of the transaction. 5. The second difficulty in the way of the Plaintiff to get relief in the present suit is that be has a subsisting title, that is, by showing that he was in possession of the suit property at any time within 12 years of the suit. 5. The second difficulty in the way of the Plaintiff to get relief in the present suit is that be has a subsisting title, that is, by showing that he was in possession of the suit property at any time within 12 years of the suit. It has been argued on behalf of the Respondents that the findings of both the Courts below are concurrent to the effect that the Defendant was in possession of the property for a much longer period than the statutory one. It is to be noted that the relationship between the parties is that one is the wife's brother of the other. It is admitted on behalf of the Defendants-Respondents that prior to 1942 there was no dispute between the parties and the relationship was absolutely cordial and intimate. This relationship between the parties will go a great length to show that the possession of the Defendant was rather permissive than adverse. But my view is supported by the very documents relied upon by the Defendant and which serves as the basis for finding on the question of possession by the Courts below. They are Exts B and C series, that is, the house-tax demand notices and the house-tax receipts. For each year the Defendant has bean paying house tax and obtaining receipt therefore. In each of the Ext. B series there appears the signature of Defendant No. 1. One important feature in Ext. B series is that these receipts stand in the name of the Plaintiff. This clearly indicates that the Defendant at the time of payment of the house-tax and obtaining the receipts was acknowledging that title of the Plaintiff; as such, the possession could never be adverse but was permissible. The same feature also appears in Ext. C series. In this view of the matter, therefore, I find that the Courts below have committed an error of law in having ignored the very salient feature appearing from the documents filed by the Defendant to show that the possession was permissive. 6. There is still a third difficulty to be met by the Plaintiff in order to get relief in the suit. 6. There is still a third difficulty to be met by the Plaintiff in order to get relief in the suit. The Courts below have dismissed the suit also on the ground that the present suit was on the basis of a Tenancy having been terminated, and the suit, as framed, not being based upon the anterior title of the Plaintiff, the Plaintiff is not entitled to any relief if he does not establish the Tenancy as alleged. I agree with the findings of the Courts below that the alleged Tenancy has not been established. But in my view the Courts below have gone wrong in law in dismissing the Plaintiff's suit on that ground alone. "Coming to the present frame of the suit 1 find the Plaintiff" making allegation of the title of Plaintiff since the year 1921. The parties entered into exhaustive evidence on the question of title) the main defence being that in fact the real owner is the Defendant who has purchased the property in the name of the Plaintiff and has paid the entire consideration money. There cannot be possibly any suggestion that the Defendant was taken by surprise or was prejudiced in any manner on this issue of title. Merely because the Plaintiff sued on basis of the tenancy, the present suit cannot be thrown off. I will in this connection rely upon a decision of the Patna High Court reported in Ramdahin Lohar Vs. Ramdhani Mahto and Others, wherein Mr. Justice Agarwala, (as he then was) came to the decision that "a person who sues in ejectment alleging that the relationship of landlord and tenant has existed between himself and the Defendant and fails to prove that relationship is nevertheless entitled to recover possession on the basis of his title. Merely because the court-fee payable to each a person who has been a tenant, is different from the court-fee payable in a called where the Defendant is a stranger, it cannot be said that a Plaintiff who has proved his title to the land is not entitled to recover possession from a person who is a trespasser on the land merely because the Plaintiff has failed to prove the relationship of landlord and tenant on which the suit was based". For coming to this conclusion; Agarwala J. relied upon a Full Bench decision of the Allahahad High Court reported in Balmukunda v. Dalu. For coming to this conclusion; Agarwala J. relied upon a Full Bench decision of the Allahahad High Court reported in Balmukunda v. Dalu. Their Lordships of the Allahabad High Court had held in very clear terms that even though the Plaintiff had failed to make out his case as to the relationship of landlord and tenant, he should nevertheless get a decree on the basis of his anterior title if it is proved. Indeed the further requisite in such a case would be that the Plaintiff has been able to prove hie possession within 12 years of the, suit. As I have found above that the possession of the Defendant was permissive till the year 1942 when the dispute between the platies started and the notice to quit was served upon the Defendant, there will be no difficulty in the way of the Plaintiff to get a decree for ejectment in the present suit. 7. In conclusion, therefore, the appeal is allowed and the judgments and decrees of the Courts below are set aside and a decree is granted in favour of the Plaintiff. The appeal is allowed with costs throughout. Leave prayed for by Mr. A.K. Tripathy is refused. Final Result : Allowed