JUDGMENT Radha Monan Prasad, J. This appeal arises out of the judgment and decree dated 27th June. 1990 passed in Title Suit No. 204 of 1974 by the 7th Additional Subordinate Judge, Bhagalpur which has been dismissed on contest. 2. The suit was filed by the plaintiff-appellant for declaration that he is in possession of the entire land described in schedule 5 of the plaint and that the defendant-respondent has no manner of right, title, interest thereof and possession over the same and also fur decree in his favour for recovery of possession of the suit land. The plaintiff further sought for direction to the defendant to remove the well from the suit land within a time to be fixed by the court, failing which the same be removed through the agency of the court at the cost of the defendant and for further decree of mesne profits. 3. The case of the plaintiff, in short, is that in the year 1948 he and Thakur Sah purchased the share of Dhirendra Nath Mitra who was holding 1/3rd share in old holdings no. 10 and 12 out of the total area of 5 bighas 4 kathas by virtue of sale deed (Ext. 1) and after the aforesaid purchase Thakur Sah and the plaintiff filed Title Suit No. 24/49 in the court of Sub Judge, Bhagalpur for partition of and allotment of 1/3rd share against the co-sharers of said Dhirendra Nath Mitra. The suit was decreed and they came in possession over 1/3rd share measuring 1 bigha 14 kathas and 13 1/2 dhurs. During the pendency of execution case, Thakur Sah sold his 8 annas interest to Changuri Mahto and Kahanai Mahto and thus, Changuri and Kahanai became co-sharer with the plaintiff and according to the plaintiff, there was amicable division between them in the year 1959 in which 10 kathas 5 dhurs fell in the share of the plaintiff fully described in schedule. On said division plaintiff's name was mutated in the office of Anchal Jagdishpur and Bhagalpur Municipality. 4. On said division plaintiff's name was mutated in the office of Anchal Jagdishpur and Bhagalpur Municipality. 4. Further case of the plaintiff is that defendant is his Shala whose house at Golaghat Garhiya fell down in heavy rain in 1965, whereafter on his request, the plaintiff accommodated and allowed him to reside in verandah portion of the house standing on the suit land and since then the defendant continued in occupation of Khaparaposh verandah as detailed in schedule 4 of the plaint as in permissive possession. In 1966 the plaintiff who was in need of the suit house and sensing the evading attitude of the defendant asked him to vacate and sent notice also for the said purpose and in failing thereof filed the present suit. 5. The defendant contested the suit and filed written statement, alleging, inter alia, that the suit is barred by adverse possession and law of limitation, barred by estoppel, acquiescence and waiver. Further case is that he is in exclusive possession of the suit property since 1961 as an absolute owner and has acquired title by adverse possession as well. The defendant has claimed 1/3rd share in schedule 1 property of the plaint which he claims to have acquired with the plaintiff along with Thakur Sah having 4 and 8 annas share by them and the defendant claims to have paid 1/4th consideration of the sale deed (Ext. 1) and the plaintiff worked as lendor and Benamidar for this defendant and as such he also claimed that he was the purchaser of 1/4th share of Ext. 1. It is further claimed by the defendant that he all along contributed his 1/4th share in litigation expenses. It is alleged that after the delivery of possession in the aforementioned partition suit, there was amicable partition with the plaintiff and the defendant on the one side and Changuri Mahto and Kahanai Mahto, purchasers of the interest of Thakur Sah on the other side in 1959. On the said partition plaintiff and defendant got 10 kathas 5 dhurs. Later on, an amicable partition also took place between the plaintiff and the defendant and the defendant constructed brick built thatched house on his allotted share and began to reside thereon with his family members. 6. On the said partition plaintiff and defendant got 10 kathas 5 dhurs. Later on, an amicable partition also took place between the plaintiff and the defendant and the defendant constructed brick built thatched house on his allotted share and began to reside thereon with his family members. 6. It is contended that the aforesaid division is evidenced by agreement dated 24.9.1961 duly executed by the plaintiff in favour of the defendant and witnessed by so many persons. A map was also prepared on the occasion showing the aforesaid division and the map was duly signed by the plaintiff and the defendant and witnessed by Thakur Sah. The defendant's further case is that he got his name mutated in the office of Jagdishpur Anchal and Bhagalpur Municipality with due notice to the plaintiff and the defendant is paying municipal tax for the suit property since then. The defendant also claims to have constructed the boundary wall on the western and northern side of the suit land and got water tap fixed after due permission of the Municipality. It is further asserted by the defendant that the municipal receipt and the rent receipt standing in the name of the plaintiff for schedule 3 land were for the benefit of the defendant and the plaintiff was representing the defendant's interest in these offices and the plaintiff being a co-sharer of the defendant was in position of the trustee. The defendant has denied the story of his being accommodated on enclosed verandah portion of the suit house and also the story of permissive possession over the same. 7. The trial court on the pleadings of the parties framed nine issues, out of which, according to the learned counsel for the appellant, the main Issue are Issues No.3, 5, 6 and 7, which are as follows:- "3. Is the suit barred by law of limitation and adverse possession ? 5. Whether the documents (marked Y for identification dated 24.9.61 is a partition deed or an Ekrarnama and whether it is admissible and can be marked as an exhibit in this case? 6. Did the plaintiff came in possession of half share of the land purchased by him and one Thakur Sah jointly from Devendra Nath Mitra by the sale deed dated 29.4.1948? 7. Was the plaintiff the name lender and Benamidar of the defendant in the Kebala (Ext.1) of 1 948?" 8. 6. Did the plaintiff came in possession of half share of the land purchased by him and one Thakur Sah jointly from Devendra Nath Mitra by the sale deed dated 29.4.1948? 7. Was the plaintiff the name lender and Benamidar of the defendant in the Kebala (Ext.1) of 1 948?" 8. On consideration of Issue no. 5 relating to the document dated 24.9.1961 (marked 'Y' for identification) the trial court held that it is out and out an Ekrarnama and not the partition deed for all interest purposes and is fit to be admitted in evidence as it bears requisite stamp duty and accordingly marked the said document as Ext.2. 9. It was contended by Mr. Sukumar Sinha, learned counsel appearing for the appellant that earlier on 1.6.1978 the trial court while considering the admissibility of the said document held that it is a partition deed and is registerable under Section 17 of the Registration Act and is chargeable to stamp duty and that the document cannot be exhibited. Against this order the defendant moved this Court in Civil Revision No. 1216 of 1978 which was dismissed as not pressed, vide order dated 24.8.1979, yet the trial court has considered about the admissibility of the said document. 10. I do not find any infirmity in consideration of the admissibility of the said document. The aforesaid civil revision application was dismissed as not pressed with an observation that the parties will be heard by the trial court about the nature of the instrument at the time of hearing and hence the matter was argued and the trial court has considered about the nature of the said document and its admissibility. The trial court on consideration of the evidences namely, the witness and the evidence of the scribe of the said document as also unambiguity and clear contents of the same held it to be a deed of agreement bearing sufficient requisite stamp duty and, accordingly, marked it as Ext. 2. 11. Learned counsel for the appellant has failed to point out any infirmity in the said consideration of the trial court. The trial court has considered Issues no. 6, 7 and 8 which was framed as to whether the plaintiff has got subsisting title over the suit land together. 2. 11. Learned counsel for the appellant has failed to point out any infirmity in the said consideration of the trial court. The trial court has considered Issues no. 6, 7 and 8 which was framed as to whether the plaintiff has got subsisting title over the suit land together. The facts relating to purchase of the suit land by the plaintiff and Thakur Sah and later sale of the share of Thakur Sah to Changuri Mahto and Kanahai Mahto are not disputed. The defendant, however, claimed that in the said purchase he has 4 annas share though the sale deed was in the name of Thakur Sah and the plaintiff only. The plaintiff was holding only 4 annas share and rest 4 annas share was his. It is claimed that the plaintiff was the name lender and Benamidar. 12. It was contended by Mr. Sukumar Sinha, learned counsel appearing for the appellant that the trial court has committed error in holding the plaintiff as Benamidar and name lender of the defendant in the sale deed of 1948 on misconstruing the aforementioned document dated 24.9.1961 (Ext.2) which, according to him, was a mere unilateral document and does not create any interest in fovour of the defendant. He further contended that in view of the law laid down by the Apex Court with respect to Benami transaction, the defendant had no case and his claim in this regard should have been rejected by the trial court. 13. By now it is well settled that the question as to whether the transaction is benami or not mainly depends upon the person who contributed the purchase money. The genesis of the concept of benami is that consideration for a transfer must go from one person and the transfer is taken in the name of other person and the consideration so going for the transfer was not intended to be a gift in favour of the person in whose name the transfer is taken. 14. The principles governing determination of the question as to whether a deed is benami transaction or not are that the burden lies on the person who asserts the same and depends upon the payment of purchase money for the transaction. Once the payment is proved, the purchase is prima facie assumed to be for the person who paid the purchase money unless by evidence contrary is proved. Once the payment is proved, the purchase is prima facie assumed to be for the person who paid the purchase money unless by evidence contrary is proved. The intention and who contributed the purchase money has to be decided on the basis of surrounding circumstances, the relationship of the parties, the motive generating their action in bringing about the transaction and their subsequent conduct regarding possession of the purchased property etc. 15. The trial court in paragraph 10 onward of the impugned judgment has considered the evidences regarding the payment of consideration money for 1/4th share of the sale deed of 1948, in detail, and has held that the plaintiff is the name lender and Benamidar for the defendant with respect to the suit land in the Kebala dated 29.4.1948 and that the plaintiff came in possession of half of the land purchased but later on from 1961 he left the half of 10 kathas 5 dhurs, i.e., 5 kathas 2 1/2 dhurs, in favour of the defendant and executed an Ekrarnama dated 24.9.1961 in favour of the defendant and since then he is in possession of the suit property. 16. The plaintiff has not examined any witness to support his case that he had paid the entire half consideration money of the sale deed of 1948. He only relied upon the Kebala of 1948 (Ext. 1). It has rightly been held by the trial court that the recital of the sale deed does not show the real state of affairs. D.W.8 in his evidence stated that in the year 1948 the defendant has withdrawn money from his shop. The withdrawal was thrice, firstly Rs. 200/-, secondly Rs. 100/- and thirdly Rs. 1200/- within one and a half months. The trial court has also considered the evidence of DW1, who is defendant himself, in which he stated that he used to deposit the money in the shop of Gorakh Jain, father of D.W.8, and he withdrew the money for payment of his share of consideration money from the said shop. DW.16 is the attesting witness of the sale deed of 1948. In paragraph 3 of his evidence he stated that on the date of execution of Kebala Devendra Nath Mitra paid Rs. 4,300/- and that Rs. 700/- was paid earlier in advance. He also stated that Rs. DW.16 is the attesting witness of the sale deed of 1948. In paragraph 3 of his evidence he stated that on the date of execution of Kebala Devendra Nath Mitra paid Rs. 4,300/- and that Rs. 700/- was paid earlier in advance. He also stated that Rs. 4,800/- was paid to Thakur Sah by all the three persons of their share at the time of writing of the deed. In paragraph 5 he further stated that in 1961 the plaintiff executed agreement in favour of the defendant in which also he was the witness. 17. Learned counsel appearing for the appellant contended that the trial court has considered the affidavit of Thakur Sah (Ext.C) which is not admissible document under Sections 32 and/or 33 of the Indian Evidence Act (in short 'the Act'). Ext.C is the statement of Thakur Sah admitting the defendant as co-purchaser of the plaintiff. It is true that Thakur Sah was not alive when the said document was exhibited. It is also true that affidavit of a dead man not subjected to cross-examination is not an admissible evidence under Section 33 of the Act, but the trial court has not solely relied upon the said affidavit. The statement of Thakur Sah is of 1967 i.e. much prior to the filing of the suit. As such, the trial court having taken note of the fact that the plaintiff has not been able to bring on record any material against Thakur Sah that he was inimical to the plaintiff or interested in defending the defendant has referred to the said affidavit also while dealing with the question of benami transaction vide Kebala (Ext. 1). PW.1, the plaintiff himself, in paragraph 33 of his deposition admitted that all the Karbar of the sale deed was performed by Thakur Sah alone. Under such circumstances, the affidavit of Thakur Sah (Ext.C), in my opinion, cannot completely be brushed aside and, in any view of the matter, the consideration of the same by the trial Court will not vitiate the impugned judgment as the trial court has considered other evidences also and based his finding on them on the question of Benami in favour of the defendant which learned counsel for the appellant has failed to assail. 18. 18. On the question of possession, the trial court has considered the evidences in detail and no infirmity has been pointed out by the learned counsel for the appellant to assail UP finding that the story of possession of the plaintiff is completely demolished. The plaintiff’s own son has deposed in favour of the defendant and against the plaintiff. Thus, it has rightly been held by the trial court that from the evidence discussed above, it is clear that the defendant is in exclusive possession of the suit land and house in his own right and the claim of the plaintiff is palpably false. The trial court has also considered the Ekrarnama executed by the plaintiff in the year 1961 and from the evidence on record it has been found that the defendant is in possession of the suit land since 1961. The present suit was filed in the year 1974 i.e. after lapse of 12 years and hence held that the suit is barred by limitation as well as by the principle of adverse possession. Learned counsel for the --I appellant has failed to assail the said finding with reference to the evidence on record. 19. Under such circumstances, I do not find any merit in the appeal and the same is dismissed, but without costs.