Full Judgment Text
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PETITIONER:
LAKHAN SAO (DECEASED) NOW THROUGHHIS LEGAL HEIRS
Vs.
RESPONDENT:
DHARAMU CHAUDHARY
DATE OF JUDGMENT20/02/1991
BENCH:
FATHIMA BEEVI, M. (J)
BENCH:
FATHIMA BEEVI, M. (J)
RAY, B.C. (J)
CITATION:
1991 SCR (1) 544 1991 SCC (3) 331
JT 1991 (1) 639 1991 SCALE (1)240
ACT:
Code of Civil Procedure, 1908: Suit for declaration of
title and possession-Burden to prove title is on the
plaintiff-But when both plaintiff and defendant tender
evidence the question of burden of proof is not important-
Court can consider the entire evidence on record.
HEADNOTE:
The respondent-plaintiff instituted a suit against the
appellant-defendant for declaration of title and possession
of the suit properties on the basis of a sale-deed dated
February 10, 1964 executed in his favour by Mrs. T. The
appellant-defendant also asserted his title and possession
under an earlier deed dated February 14, 1959 executed by
Mrs. T in his favour. The respondent contended that the
deed of 1959 in favour of the defendant was sham and without
any consideration. The Trial Court decreed the suit and the
decree was confirmed in appeal. The High Court set aside the
decree and remanded the case to the first appellate court
stating that the burden to prove that the 1959 deed was sham
was on the plaintiff. After the remand, the first appellate
court considered the evidence adduced by both sides and
upheld the plaintiff’s title and confirmed the decree of the
trial court. The second appeal filed against the judgment
was dismissed in limine by the High Court.
In defendant’s appeal to this court it was contended
that inspite of specific direction by the High Court in the
order of remand that the burden to prove that 1959 deed was
sham was on the plaintiff, no fresh evidence was tendered by
the plaintiff to discharge the burden and the appellate
court proceeded to examine the evidence tendered by the
defendant and rejected the same; hence the appellate court
committed an error in disposing the appeal which gave rise
to a substantial question of law and the High Court failed
to exercise its jurisdiction under Section 100 CPC in
dismissing the second appeal in limine.
Dismissing the appeal, this Court
HELD: 1. It is always open to the defendant not to lead
any evidence where the onus is upon the plaintiff but after
having gone into
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evidence, he cannot ask the court not to look at and act on
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it. The question of burden of proof at the end of case when
both parties have tendered evidence is not of any great
importance and the court has to come to a decision on a
consideration of all materials. [515H; 516A]
2. In the suit based on title the burden was
undoubtedly on the plaintiff to prove such title. When the
plaintiff assailed the earlier deed executed by his vendor
in respect of the same land it was for him to establish that
it was a Farzi Kebala and sham transaction unsupported by
consideration. But in examining the question whether the
plaintiff had succeeded in proving the negative fact it was
open to the court to consider the entire evidence on record
when both the parties have tendered evidence and no part of
the evidence could be left out. The plaintiff proceeded on
the basis that the deed executed by his vendor in 1959 was
sham unsupported by consideration and it never came into
operation thereby pleading the necessary facts in support of
his title. Evidence was tendered to prove what has alleged.
To counter the claim, the defendants have asserted that the
consideration was paid under the deed and counter evidence
was tendered. The entire evidence was fully apprecited by
the Appellate Court and the findings recorded. Thus the
Appellate Court recorded definite findings on a clear
analysis of the entire evidence and the findings are fully
supported by the evidence on record. Therefore, no error
had been committed by the learned Judge in his approach.
[597C-D; 599B-C]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1440 of
1986.
From the Judgment and Order dated 30.11.1985 of the
Patna High Court in Second Appeal No. 129 of 1983.
Ranjan Diwvedi, A.N. Bardiar and R.S. Sharma for the
Appellants.
D. Goburdhan and D.N. Goburdhan for the Respondent.
The Judgment of the Court was delivered by
FATHIMA BEEVI, J. The plaintiff-respondent instituted
the suit for possession of the land in Khata No. 19 in
village Gauripur in 1968 claiming title under Ex. 2 sale
deed dated February 10, 1964 executed in his favour by Mst.
Tetri, the widow of Chhathu Sah, the original owner. Mst.
Tetri had earlier executed Ex. 2-A sale deed on
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February 14, 1959 in favour of her brother’s son Lakhan Sao
for a consideration of Rs.600. She cancelled this deed on
July 31, 1962 before transferring the property in favour of
the respondent. By proceeding dated 11.7.1963 obtained
mutation in her name and paid rent on 18.7.1963. The
dispute, however, arose over possession of the land between
the respondent and Lakhan Sao that led to proceedings under
section 145, Cr. P.C. By the order dated March 4, 1966,
Lakhan Sao and his brother Gulab Sao the appellants herein
were put in possession. The present suit was thereafter
instituted by the respondent for declaration of this title
and possession.
The respondent alleged that the deed of 1959 in favour
of Lakhan sao was a Farzi Kebala executed without
consideration and was not operative and the respondent had
acquired valid title under the transfer in his favour. The
suit was resisted denying plaintiff’s title and asserting
that the title and possession passed under the deed of 1959.
The Trial Court decreed the suit and the decree was
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confirmed in appeal. The High Court set aside the decree
and remanded the case to the first appellate court pointing
out that the burden to prove that the document of 1959 was
farzi in character and remained inoperative clearly lay on
the plaintiff and the finding of the first appellate court
was vitiated by erroneous conception of law. After the
remand, the appeal was disposed of by the Additional
District Judge by judgment dated January 31, 1983 upholding
the plaintiff’s title and confirming the decree of the Trial
court. The second appeal filed against that judgment was
dismissed in limine by the High Court on 30.11.1985. This
appeal by special leave is directed against that judgment of
the High Court.
Shri Ranjan Dwivedi, learned counsel for the
appellants, maintained that the first appellate court
committed the same error as was pointed out by the High
Court earlier in disposing of the appeal and the error thus
committed has given rise to a substantial question of law
and the High Court failed to exercise the jurisdiction under
section 100, C.P.C., in dismissing the appeal in limine.
The original defendant died and his legal representatives
are the appellants before this Court. It was submitted that
the Additional District Judge had approached the question as
to whether the impugned deed of 1959 is a sham and
inoperative transaction by casting the burden on the
defendant, in spite of the specific direction in the order
of remand. No fresh evidence had been tendered by the
plaintiff to discharge the burden of proving that no
consideration passed under the document and that the
document was inoperative. The Court proceeded to examine
the
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evidence tendered by the defendant to arrive at the
conclusion and has found fault with the defendant for not
proving that consideration passed and the transaction has
come into operation. This approach, according to the learned
counsel, has vitiated the finding and resulted in
miscarriage of justice. The submission is that the lower
appellate court has discussed the evidence tendered by the
defendant and rejected the same. The respondent’s learned
counsel pointed out that the lower appellate court had
properly appreciated the evidence applying the correct law
as to the burden of proof. The findings recorded are on the
appreciation of the facts and evidence of the case and no
question of law did arise and therefore the second appeal
has been rightly dismissed.
In the suit based on title the burden was undoubtedly
on the plaintiff to prove such title. When the plaintiff
has assailed the earlier deed executed by his vendor in
respect of the same land it was for the plaintiff to
establish that it was Farzi Kebala and sham transaction
unsupported by consideration. The learned Additional
District Judge has proceeded to consider how far this onus
which lay heavily on the plaintiff had been discharged. He
referred to the various tests that have been laid down in
order to ascertain that a particular deed is a Farzi Kebala.
He considered the relationship between the parties, the
evidence relating to the custody of the document, passing of
consideration, motive and possession. It was found that
Lakhan Sao and his brother Gulab Sao were closely related to
Tetri, that Ex. 2-A sale deed was in the custody of Tetri
and it had been produced in Court by the plaintiff. On the
evidence, it was found hat the stamp paper for the document
was purchased by the vendor and there was clear indication
that the vendee did not take part in the preparation of the
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document. He inforred this fact from the circumstance that
incorrect particulars had been incorporated in the deed. He
rejected the contention that the documents were
surreptitiously obtained by the plaintiff and his vendor.
It was noticed that even after the execution of the deed,
Tetri was continued to be in possession. She moved the
authorities for recording her name in Jamabandi and she had
paid the rent. Regarding the motive for the execution of
the deed, it was noticed that Mst. Tetri had debts and the
deed was executed to cover the property from the reach of
the creditors and without consideration. The learned
Additional District Judge considered the evidence relating
to the consideration. He referred to the evidence of PW-8,
the attesting witness and PW-14 the plaintiff. These
witness stated that nothing had been paid as consideration.
As per the recital in the deed an amount of Rs. 500 was a
prior payment and Rs.100 was paid in cash at the time of
execu-
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tion. The learned Judge noticed that there was no specific
statement regarding the payment of any part of the
consideration in cash. The vendor was dead. Lakhan Sao,
the defendant, avoided the witness box. The evidence of the
parties to the document was not therefore on record. Gulab
Sao, the brother of Lakhan Sao, was examined as DW-11. His
evidence was analysed and was found to be discrepant. The
learned Judge on a consideration of evidence on both sides
found that the evidence on the point of payment of
consideration by appellant Lakhan Sao is far from
satisfactory and the evidence of the appellants is unworthy
of credit. Motive was found to be satisfactorily established
as the existence of debts to some creditors was admitted.
On the question of possession, the learned Judge scrutinised
the evidence and found that Tetri was in possession even
after execution of Ex. 2-A. Having found these ingredients
in favour of the plaintiff, the learned Judge concluded that
Ex. 2-A executed by Tetri on 14.2.1959 was only Farzi Kebala
without any consideration and it created no title and
possession to the appellant.
The findings are essentially findings of fact. If,
however, the appellants succeed in showing that in recording
the findings of fact, the court had proceeded on a wrong
conception of law as to onus, the correctness of the
findings has necessarily to be examined. The only point
that has been stressed before us is that lower appellate
court has wrongly proceeded on the basis that onus shifted
to the defendant to prove the passing of consideration and
that the evidence did not establish that fact. It was
maintained that the onus did not shift as the burden was
entirely on the plaintiff to prove the fact that document
was inoperative and no consideration did pass thereunder.
We have point out earlier that the High Court has set aside
the earlier decree pointing out the error committed by the
lower appellate court. This observation made by the High
Court has been kept in mind by the Additional District Judge
in disposing of the appeal thereafter. The learned Judge
has considered the question of burden on the plaintiff to
establish that there had been no consideration. In
examining the question whether the plaintiff had succeeded
in proving the negative fact it was open to the court to
consider the entire evidence on record when both the parties
have tendered evidence and no part of the evidence could be
left out. On a consideration of the whole evidence, the
Court has concluded that there had passed consideration.
This finding cannot, therefore, be said to be vitiated.
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It is always open to the defendant not to lead any
evidence where the onus is upon the plaintiff but after
having gone into evidence, he
549
cannot ask the court not to look at and act on it. The
question of burden of proof at the end of case when both
parties have tendered evidence is not of any great
importance and the court has to come to a decision on a
consideration of all material.
In the present case, the plaintiff proceeded on the
basis that the deed executed by his vendor in 1959 was sham
unsupported by consideration and it never came into
operation thereby pleading the necessary facts in support of
his title. Evidence was tendered to prove what has been
alleged. To counter the claim, the defendants have asserted
that the consideration was paid under the deed and counter
evidence was tendered. The entire evidence was fully
appreciated by the Court and the findings have been
recorded. We do not agree that any error had been committed
by the learned Judge in his approach. He recorded definite
findings on a clear analysis of the entire evidence and the
findings are fully supported by the evidence on record. We
do not therefore see any merit in the appeal which is
accordingly dismissed. No costs.
T.N.A. Appeal dismissed.
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