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2004 DIGILAW 47 (CAL)

SORASI BALA MONDAL v. SATYA NARAYAN DAS

2004-01-21

AMITAVA LALA

body2004
A. LALA, J. ( 1 ) FROM the concurrent findings of the Court of first instance as well as by the first Appellate Court in favour of the respondent-plaintiff, this appeal was preferred. I do not find in the record that any point was formulated at the time of admission of the appeal. However, such point may be formulated even at the time of hearing of the appeal. Three points were formulated from the Memorandum of appeal which are as follows:"xiii - For the Courts below ought to have held that the land as mentioned in Exhibit No. C-1 the Deed of Gift revealed the boundary which is conformity with the plots of land as mentioned in the Mouza Map Exhibit No. E-1 and thereupon ought to have dismissed the suit. XV - For that the Courts below ought to have held that the Deed of Gift (Ext. C-1) in all material respects tally with the lands contained in Ext. F (2) C. S. Khatian No. 72 and in Ext. G (1) R. S. Khatian and ought to have held that there was no discrepancy in establishing the land in the Deed of Gift and the land in dispute. XXIII - For that the Courts below erred in law in not holding that said deed of gift was acted upon althroughout by the defendant No. 5 since 1945 upto the time she (the defendant No. 5) sold the disputed property to the defendant No. 1/appellant. " ( 2 ) THIS is a suit for identity of the suit property which is obviously an outcome of factual ascertainment. Therefore, no second appeal should be allowed on that score. Out of the aforesaid three points, the first two points are reasonably the factual grounds. Therefore, on that score I do not want to interfere with the concurrent findings. So far as the last point is concerned, a lot of arguments were advanced before this Court to come to an appropriate conclusion. ( 3 ) ON Taran Ghosh (since deceased) had his three sons viz. , Fakir, Nanitosh and Banamali. As per submissions made by the parties I have come to know that there is also a daughter named as 'panchubala'. According to the appellant, in 1922 by a Deed of Gift Taran gifted the entire property to Panchubala. ( 3 ) ON Taran Ghosh (since deceased) had his three sons viz. , Fakir, Nanitosh and Banamali. As per submissions made by the parties I have come to know that there is also a daughter named as 'panchubala'. According to the appellant, in 1922 by a Deed of Gift Taran gifted the entire property to Panchubala. In 1943, a partition suit being Title Suit No. 11 of 1943 was resolved in a partition amongst the sons. There, the plot No. was 631, part of which is the subject-matter herein. In 1945, Panchubala instituted a suit being Title Suit No. 132 of 1945 in respect of a plot No. 709 which was ended with compromise in between the brothers and sister. Such plot No. 709 is arisen out of mouza 'atuhat' approximately at an area of 6 cents = 4 kattahs of lands. The subject-matter of the suit herein is in respect of the plot No. 631, khatian No. 72, mouza-Katwa about 13 decimals of lands. The plaintiff purchased 1/3rd share of the successor in interest of Banamali and 1/9th share of successor in interest of Fakir, totalling to 4/9th shares. Naturally, when the dispute arose in respect of the identity of the suit property, the present suit was instituted for declaration of 'ka' schedule property and 'ga' schedule being part of 'ka' schedule, in effect, part of plot No. 631 as aforesaid. The prayer in respect of 'ka' schedule property is in the nature of declaration whereas the prayer in respect of 'ga' schedule property is in the nature of a mandatory injunction. In both the Courts, the respondents succeeded. ( 4 ) THE contention of the appellant-petitioner is that the Ext. D-1 is a compromise decree within which a portion of plot No. 631 is reflected. The area is about 1/2nd kottah of lands. Therefore, when the Deed of Gift was acted upon in the suit in 1945, the respondents/plaintiffs cannot get any relief as prayed for in respect of identity of the suit property. Moreover, no appropriate case of identity of the suit property has been made in the plaint itself. However, the onus to prove the case of identity of the property of the plaint lies with them which cannot be shifted to the respondent/purchaser/purchasers from the gift holder. Moreover, no appropriate case of identity of the suit property has been made in the plaint itself. However, the onus to prove the case of identity of the property of the plaint lies with them which cannot be shifted to the respondent/purchaser/purchasers from the gift holder. It is an admitted position that neither anybody has come forward on behalf of the gift-holder-daughter to substantiate the right nor any written statement has been filed. Both the Courts below had extensively proceeded on the basis of the identity of the suit property which is essentially a question of fact. The issues were framed accordingly. ( 5 ) UPON being called, I do not say that the plaint is absolutely silent in respect of the point of adjudication herein. Much emphasis were made in pleading to prove the identity of the property by the contesting respondents. I find that the Court of first instance particularly held that the suit land is not covered by the Deed of Gift being Ext. C-1 and consequentially by the compromise decree being Ext. D-1. The Appeal Court also considered the Ext. D-1 and found that from the schedule of the compromise decree as well as the certified copy of the plaint, two mouzas of the suit property are different from each other which was also held by the Court of first instance. Moreover, one important feature is that the defendant No. 1 in the suit declined to have the suit land investigated by a Survey Commissioner. So, the defendant No. 1 did not avail the opportunity of the Appellate Court on the earlier occasion. The advocate Commissioner also noticed a serious discrepancy between the areas of the 'danpatra' land and on the suit land. Accordingly, he opined that the 'danpatra' land and the C. S. plot No. 631 were not identical. In this connection, the settlement map being Ext. E-1 produced by the defendant was considered. Thus, the respondent herein said that the plaintiff had sufficiently discharged the onus by producing 'patta', 'danpatra', 'r. S. Record' and the 'settlement Sketch Map' etc. and as soon as such onus of identification of such property is discharged, it will automatically shift upon the defendant to establish a better title. Therefore, the burden of proof lies with the defendant and not with the plaintiff. He cited a judgment reported in AIR 1961 SC 1474 (K. S. Nanji and Co. and as soon as such onus of identification of such property is discharged, it will automatically shift upon the defendant to establish a better title. Therefore, the burden of proof lies with the defendant and not with the plaintiff. He cited a judgment reported in AIR 1961 SC 1474 (K. S. Nanji and Co. v. Jatashankar Dossa and Ors.) to establish that under the Evidence Act there is an essential distinction between the phrase, burden of proof, as a matter of law and pleading and as a matter of adducing evidence. Under section 101 of the Evidence Act, the burden in the former sense is upon the party who comes to Court to get a decision on the existence of certain facts which he asserts. That burden is constant throughout the trial; but the burden to prove in the sense of adducing evidence shifts from time to time having regard to the evidence adduced by one party or the other or the presumption of fact or law raised in favour of one or the other. In the judgment reported in AIR 1997 Rajasthan 230 (Kanti Lal v. Smt. Shanti Devi and Ors.) it was held that in a suit for recovery of possession based on plaintiff's possessory title, onus of proof to prove his legal possession within 12 years from the date of violent invasion of his possession by the defendant lies on him. But once it is established by the plaintiff by adducing oral or documentary evidence or both that he has brought the suit within 12 years from the date of violent invasion of his possession, the onus of proof immediately shifts on the defendant to establish that he/she entitled to retain possession of the land or property in dispute on the basis of his/her better title and possession which has neither originated by force nor by fraud nor by mixture of both. In such suits filed on the basis of possessory title, according to section 110 of the Indian Evidence Act, prior possession of the plaintiff itself would be prima facie evidence of his title against the whole world except the true owner. ( 6 ) THEREFORE, upon hearing both the parties I am of the view that there is no infirmity in coming to a conclusion affirmatively in favour of the plaintiff by the Court of first instance as well as by the first Appellate Court. ( 6 ) THEREFORE, upon hearing both the parties I am of the view that there is no infirmity in coming to a conclusion affirmatively in favour of the plaintiff by the Court of first instance as well as by the first Appellate Court. Therefore, the second appeal fails and the same is, accordingly, dismissed. Hence, the decree and order of both the Courts below stand confirmed. There will be no order as to costs. Let the Lower Court Records be sent down to the Courts below as expeditiously as possible preferably by 27th February, 2004. Appeal dismissed .