JUDGMENT
1. The Courts below appear to. have misconceived the real nature of the claim. The plaintiff brought the suit for a declaration that he had a half share in a certain enclosure and he claimed possession of that share. His allegation was that he and the first defendant Jagannath jointly-purchased the enclosure from one Ram Prasad, who was the owner of it, for Rs. 150, that the sale-deed was obtained farzi in the name of the second defendant, Debi Prasad, and that Debi Prasad had executed a sale-deed in favour of the third defendant in collusion with the first defendant. Jagannath admitted that the house had been purchased jointly by him and the plaintiff. But he staled in his written statement that the whole amount of the consideration was paid by him and that, therefore, the plaintiff was not entitled to obtain possession of a half share of the enclosure. Both the Courts below seem to have thought that if non-payment of consideration by the plaintiff was proved, that would be sufficient to entail the dismissal of his claim. This view is manifestly incorrect. If, as was admitted, the property was purchased jointly by the plaintiff and Jagannath in equal shares, the non-payment of consideration by the plaintiff would not prevent the ownership as to a half share vesting in him. That ownership was acquired as soon as the sale was effected. The full amount of consideration was paid to the vendor in this case. So that upon a sale being made in favour of the vendees, the ownership of the property became vested in the vendees as soon as the sale was completed. This was held in Rajnath (Baijnath) Singh v. Paltu 5 A.L.J. 98 : A.W.N. (1908) 38 : 30 A. 125, which followed the earlier case of Shib Lal v. Bhagwan Das 11 A. 244. What happened in this case was this. Rupees 150, the consideration for the sale was paid to the vendor by the defendant Jagannath and the latter debited the plaintiff in his account-books with half of the amount of the consideration, namely, Rs. 75, practically as money advanced to him, so that in reality the plaintiff did pay consideration to the vendor by borrowing his share of it from the defendant Jagannath. It has been found by the Courts below that the plaintiff has not repaid to Jagannath the amount which he so borrowed. But that was not sufficient to justify the dismissal of the suit. Jagannath himself in his written statement says that the condition was that he was to take the property unless the plaintiff paid him the latter's share of the purchase-money, namely, Rs. 75. That amount being still due to Jagannath, the only equity to which Jagannath is entitled is that the decree in the plaintiff's favour for possession must be subject to the payment to Jagannath of Rs. 75, which is still due to him according to the findings of the Courts below. The result is that I allow the appeal and I make a decree in the plaintiff's favour for possession of a half share of the bara in question on the condition that the plaintiff do pay to Jagannath within two months from this date Rs. 75 (rupees seventy-five only), being one half of the consideration for the sale, an direct that on his failure to make such payment within the aforesaid period, the suit shall stand dismissed with costs in all Courts. In the event of his making the payment as aforesaid, the parties will abide their own costs in all Courts.