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Madhya Pradesh High Court · body

2010 DIGILAW 741 (MP)

Kaniram v. Dhulilal S. A. No. 1523 of 2005

2010-07-23

N.K.MODY

body2010
JUDGMENT 1. Being aggrieved by the judgment dated 9.3.2005 passed by District Judge, Rajgarh in Civil Appeal No. 23-N04 whereby the judgment dated 31.7.2004 passed by Civil Judge Class-I, Khilchipur in civil suit No. 36-A/04 (old No. 29- A/01 ) whereby the suit filed by the respondent was dismissed, was decreed, the present appeal has been filed. 2. The appeal was admitted by this Court vide order dated 4.11.2006 on the following substantial questions of law :- (a) Whether the lower appellate Court was justified in reversing the decree, passed by the trial Court which had dismissed plaintiff's suit? (b) Whether oral mortgage is recognisable under Sec. 59 of Transfer of Property Act and if so, can such an oral mortgage is enforceable under the law by the mortgagor against mortgagee or/and vicc versa? (c) Whether decree for possession on the strength or alleged mortgage could be passed by the first appellate Court in favour of the plaintiff without proving the so called mortgage and without proving the attributes and performance of the conditions of the alleged mortgage?" 3. Short facts of the case are that respondent filed a suit on 27.7.2001 for possession and mesne profits alleging that respondent is owner of a house situated at village Gordhanpura, Tahsil Khilchipur, District Rajgarh. It was allged that respondent was in need of money and took a loan of Rs. 4,000/- from the appellant. It was alleged that in security of the loan amount and interest, respondent handed over the possession of the suit house to the appellant. It was alleged that it was agreed that no interest shall be charged by the appellant on loan amount, it was further alleged that it was agreed that the moment the loan amount is repaid by the respondent, the appellant shall handover the possession of the suit property. It was alleged that since parties to the suit were resident of one village and were closely related, therefore entire transaction was oral. It was alleged that on 7.6.2001 respondent tried to return the loan amount and required to hand over possession of the suit accommodation but the appellant did not accept the money hence legal notice was issued by the respondent on 7.7.2001 which was duly received on the appellant on 15.7.2001 but inspite of that possession was not handed over to the respondent, hence suit was filed with a prayer as mentioned above. The suit was contested by the appellant by filing the written statement wherein it was prayed that suit be dismissed. After framing of issue and recording of evidence the suit tiled by the respondent was dismissed, against which an appeal was filed which was allowed whereby the judgment passed by the trial Court was set aside and decree of possession was passed, against which the present appeal has been filed. 4. Learned counsel for appellant argued at length and submits that impugned judgment passed by the learned appellate Court is illegal and deserves to be set aside. It is submitted that learned appellate Court committed error in interpreting the provisions of Sec. 59 of the Transfer of Property Act. Learned counsel submits that it is the plaintiff who has to prove his case and no advantage can be given to him for the weakness of the respondent. For this contention, reliance is placed on a decision in the matter of RVE, Venkatachala Gounder v. Arulmigu Viswesaraswami, (2003) 8 SCC 752 wherein Hon'ble Apex Court has held that burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. It was held that in a suit for possession of property based on title once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant it is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiff's title. 5. Further reliance is placed on a decision in the matter of Heirs Kantilal Purshottamdas Patel v. Dahiben Jagdish Rathore, AIR 2003 Gujrat 82 wherein in a case where the case of defendants having controverted the case of the plaintiff which the plaintiff had put forward a positive case, it could not have been negatively disproved by the defendants. It can only be positively proved by the plaintiffs. It can only be positively proved by the plaintiffs. Reliance is also placed on a decision in the matter of West Ramkanli Colliery v. Bihar State Cooperative Marketing Union, AIR 1978 Patna 57 wherein a suit for price of coal, plaintiff alleging that price was to be paid by weight while defendant alleged payment to be by measurement and no satisfactory evidence was adduced by both the parties, it was held that it was for plaintiff to prove his claim. 6. Learned counsel submits that so far as mortgage is concerned, Sec. 58 of Transfer of Property Act deals with various types of mortgages but there is no mortgage which can be created orally, since no satisfactory evidence was adduced by the respondent regarding oral mortgage of the house, therefore learned appellate Court committed error in decreeing the suit. It is submitted that appeal be allowed and impugned judgment passed by the appellate Court be set aside. 7. Learned counsel for respondent submits that impugned judgment passed by the learned Court is based on due appreciation of evidence. It is submitted that appellant in his statement has stated that he has purchased the house for a sum of Rs. 4,000/-. It is submitted that appellant has failed to prove therefore no illegality has been committed by the learned trial Court in decreeing the suit. It is submitted that implidely appellant has admitted ownership of the respondent, therefore, suit which was wrongly dismissed by the trial Court has rightly been decreed by the appellate Court. 8. From perusal of record it is evident that to prove the case respondent has filed the document Ex. P/1 to PIS. Ex. P/1 is the notice. Ex. P/2 is receipt of post office. Ex. P/3 is acknowledgment. Ex. P/4 is certificate wherein it is mentioned that house is situated at S.N. 103. Ex. PIS is the certificate issued by Sarpanch of village. Apart from documentary evidence respondent has examined himself as PW-1, Mohanlal as PW-2, Bheruju as PW-3while appellant has produced the documents Ex. D/1 which is the proceeding of Gram Panchayat dated 22.5.73. Apart from this appellant has examined himself as DW-l, Gopial as DW-2 and Kawarlal as DW-3. 9. Ex. PIS is the certificate issued by Sarpanch of village. Apart from documentary evidence respondent has examined himself as PW-1, Mohanlal as PW-2, Bheruju as PW-3while appellant has produced the documents Ex. D/1 which is the proceeding of Gram Panchayat dated 22.5.73. Apart from this appellant has examined himself as DW-l, Gopial as DW-2 and Kawarlal as DW-3. 9. From perusal of plaint filed by the respondent it is evident that in para-1 of the plaint, the respondent has stated the particulars of the suit house and has also stated that it belongs to the respondents. In answer to para-I in the written statement filed by the appellant, appellant has admitted particulars of the suit house, however nothing has been stated about the other contents relating to ownership of he respondent over the suit house. Thus impliedly appellant has admitted ownership of the house of the respondent. 10. In the written statement no specific defence was taken by the appellant. In his statement appellant has stated that he has purchased the suit accommodation for a sum of Rs. 4,000/-. It is no when, stated in his examination-in-chief when he has purchased the property. In para 5 of his cross-examination appellant stated that document was executed in that regard and the relevant document is with Gram Panchayat. Appellant further admitted that he has not filed the relevant document relating to purchase of the property in the Court. He has also stated that he has replied the notice but that also was not filed. Respondent also appeared in the witness-box in support of his case but no suggestion was given on behalf of appellant that the suit property was sold by him for a sum of Rs. 4,000/-.1t is true that no documentary evidence was produced by appellant about the alleged mortgage. Since the appellant has admitted that the suit property is owned by respondent and appellant failed to prove that he has purchased the property for a sum of Rs. 4,000/-, therefore, it is crystal clear that a loan of Rs. 4,000/- was taken by respondent from the appellant and in security of loan amount possession of suit property was given by the respondent to the appellant. 4,000/-, therefore, it is crystal clear that a loan of Rs. 4,000/- was taken by respondent from the appellant and in security of loan amount possession of suit property was given by the respondent to the appellant. In the facts and circumstances of the case, this Court is of the opinion that the learned appellate Court was justified in reversing the decree passed by the learned trial Court which has dismissed the suit. In view of this, the appeal filed by the appellant has no merits and is hereby dismissed. It is made clear that upon depositing a sum of Rs. 4,000/- respondent shal1 be entitled to get the vacant possession of suit property from the appellant forthwith. No order as to costs.