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2021 DIGILAW 938 (JHR)

Samu Devi v. Kuar Basant Narain Singh

2021-11-16

GAUTAM KUMAR CHOUDHARY

body2021
ORDER : 1. The instant appeal has been preferred by the defendants-appellants against the judgment and decree passed by the 5th Additional Judicial Commissioner, Ranchi in Title Appeal No. 06 of 1991 confirming the judgment and decree dated 30.11.1990 passed by the Sub-Judge-V, Ranchi decreeing Title Suit No. 108 of 1988. 2. The brief facts leading to the present appeal is that the plaintiff-respondent filed suit for specific performance of contract with respect to an agreement for sale of 4 Kathas of land in Plot No. 2101 of Khata No.75 regarding which agreement for sale was executed on 02.03.1985 on receipt of an advance of Rs. 15,000/- per katha against a total price of Rs. 40,000/- at the rate of Rs. 10,000/- per katha by defendants Ganga Sao and Sadhu Sao, which was their ancestral property and they had acquired their separate share and came in separate possession on partition. The defendants out of their share had sold 1/4th kathas of Plot No. 2101 of aforesaid Khata No.75 to Smt. Manju Singh by a registered deed of sale in 16.7.1985 and made reference to the partition in the deed of sale. In pursuance to the agreement, possession was given to the plaintiffs and the defendants agreed to execute the sale deed within two months after obtaining permission from the competent authority under Urban Land Ceiling Act. It is further averred on behalf of the plaintiffs that the defendants did not abide by the agreement and consequently legal notice was served on the defendants on 25.11.1986. 3. The defendants appeared and contested the suit mainly on the ground that the suit was bad for non-joinder of necessary parties and according to them unless Bhola Sahu, Dahru Sahu and all sons of Aman Sahu were made parties to the suit, it could not proceed, as being sons of Sadhu Sao and Ganga Sao who were the members of Hindu Joint Family were necessary parties there had been no partition. All the heirs of the recorded tenant Jagarnath Mahto jointly held and processed the suit land and other land of Khata No. 75. All the heirs of the recorded tenant Jagarnath Mahto jointly held and processed the suit land and other land of Khata No. 75. Further plea of the defendants is that they are illiterate persons and they have been subjected to fraud, coercion and misrepresentation by Manju Singh and her men one of whom is the plaintiff and without getting the alleged deed dated 16.07.1985 read over and explained to the defendants obtained their signatures at Calcutta under coercion. In paragraph-12 of the written statement there is denial of having entered into a sale for 4 kathas of Plot No. 2101 under Khata No. 75 to the plaintiffs but in the same breath it has been asserted that if there is any such agreement, the same is illegal, null and void and not binding on the defendants. It has also been denied that the plaintiffs have been put in possession. 4. On the basis of the pleadings of the parties, the following issues were framed and the suit was decreed in favour of the plaintiff on contest. Defendants Ganga Sao and Sadhu Sao preferred the appeal and the judgment of the trial court was affirmed and the appeal was dismissed 5. The second appeal has been admitted on the following substantial question of law: "Whether the Court of appeal below has erred in law in placing the burden on the defendants to prove is genuineness of the signatures of the defendants on the alleged agreement?" 6. The agreement of sale dated 02.03.1985 executed by Sadho Sao and Ganga Sao in favour of Kumar Basant Naryan @ Basant Prasad with respect to the suit land, witnessed by Hriday Narayan Singh, scribe Krishna Narayan Prasad and Prabhu Nath Ojha, is the foundation of the present case filed for the specific performance of contract. This document has been proved on behalf of plaintiffs by Hriday Narayan Singh-PW. 2 which has marked as Exhibit-1 and identified by PW 7. It is argued that there are inherent contradictions in cross-examination of P. Ws. 2 and PW 7 Krishna Narayan Prasad, which suggests that the defendants did not sign and execute the agreement dated 02.03.1985. Although Prabhu Nath Ojha had identified the signatures of the original defendants namely, Sadhu Sao and Ganga Sao, but he was not examined for proving their signatures. The deposition of Prabhu Nath Ojha and Ram Gulam Rai made in Misc. Although Prabhu Nath Ojha had identified the signatures of the original defendants namely, Sadhu Sao and Ganga Sao, but he was not examined for proving their signatures. The deposition of Prabhu Nath Ojha and Ram Gulam Rai made in Misc. Case No. 1486/1986 has been proved on behalf of the defendants and been marked as Ext. B and B/l wherein, the place of agreement has been disputed and has been stated that it was made in the Sirista of Munshi Krishna Prasad which is corroborated from paragraph-3 of the cross-examination of P.W.2-Hridya Narayan Singh. From the deposition of P.W.7-Krishna Narayan Prasad in paragraphs-5, 6 and 7 it would be evident that the agreement had not been executed by the defendants. Against this background, a specific denial of the execution of the agreement of sale it was incumbent on the part of the plaintiffs to prove the signatures of the defendants on the agreement of sale by expert witness. 7. It is asserted that burden of proof was on the plaintiff to prove that the agreement of sale was validly signed by the defendants. Reliance has been placed in the case of Anil Rishi Vs. Guru Bhakat Singh as reported in 2006 AIR SCW 2392 in which it has been held that initial burden proof lies on the plaintiffs in view of Section 101 of the Evidence Act. It is further argued that instead of getting the signatures examined by the expert, Court itself examined the same and held it to be that of the defendants. It is submitted in this context that the Hon'ble Apex Court in AIR 1979 SC 14 State of Delhi Administration Vs Paliram has held that it was not advisable that Judge should take upon himself task of comparing the admitted writing with disputed one to find out as to whether two agree with each other, and the prudent course is to obtain the opinion and assistance of experts. 8. It is contended that burden of proof proving the document was on the plaintiffs-respondents and the finding of the learned court below of shifting the burden to proof the in genuineness on the defendants was not in accordance with the settled principles of the Evidence Act. 8. It is contended that burden of proof proving the document was on the plaintiffs-respondents and the finding of the learned court below of shifting the burden to proof the in genuineness on the defendants was not in accordance with the settled principles of the Evidence Act. An alternative prayer has been made to set aside judgment and decree and the case be remanded to the court below for examination for verification of the signatures by an expert. 9. It is submitted by the learned counsel appearing on behalf of the respondents that there is concurrent finding of fact recorded by the learned trial court as well as by the first court of appeal in which on the basis of cogent evidence and sufficient materials on record it has been held that the agreement in question was genuinely executed by Ganga Sao and Sadhu Sao in favour of the plaintiff who had also entered into possession of the disputed land in pursuance of the agreement. It is further argued that the finding of fact cannot be unsettled in second appeal and the appellate jurisdiction is to be exercised at this stage confined to the substantial question of law framed for hearing the appeal. 10. On the burden to proof the agreement, it is submitted that plaintiff by adducing evidence of the specific performance of agreement, which has been duly proved by PW2-Hriday Narayan Singh and P.W.7 and marked as Ext.-l, the plaintiff has discharged the burden to prove agreement of sale. The endorsement of payment of advance to defendants Ganga Sao and Sadhu Sao have also been marked as Ext.2 and 2/A respectively. PW2 has also proved the signature and endorsement on the deed of agreement which has been marked as Ext.2/B. The scribe of deed namely Krishna Narayan Prasad has been examined as PW. 7 and he admitted that he had scribed the deed on the stated version of the defendants, who executed the agreement by putting their signatures on receipt part of the consideration amount. In this manner the plaintiffs discharged the onus to prove the agreement of sale. It is further argued that the defendant no. 1 Ganga Sao who has been examined as DW5 has admitted in pargraph-12 that he along with Sadhu Sao had gone to Calcutta and had been lodged there in a hotel by Basant Narayan. In this manner the plaintiffs discharged the onus to prove the agreement of sale. It is further argued that the defendant no. 1 Ganga Sao who has been examined as DW5 has admitted in pargraph-12 that he along with Sadhu Sao had gone to Calcutta and had been lodged there in a hotel by Basant Narayan. It is further stated that their signatures had forcibly been taken but after returning from there he did not report the matter to the police or filed a complaint case regarding it. 11. The very short question that falls for consideration in the present appeal is whether the plaintiff had discharged the onus to prove the agreement of sale so that the onus shifted to the defendants to controvert the genuineness of documents? 12. In order to fully appreciate on whom the burden of proof lies, it will be desirable to set out Section 101, 102 and 103 of the Evidence Act which reads as under: "S. 1O1 Burden of Proof- Whoever desires any Court to give Judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exists. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Section 102 On whom burden of proof lies- The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. S.103 Burden of proof as to particular fact-The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person." Section 101 attempts to define burden of proof and it attempts to say on which party the burden of proof lies whereas Section 102 puts it in negative terms. The main principle governing the burden of proof is that the party who makes a legal claim must prove the operative legal facts for that claim, i.e. the facts that according to law are originally sufficient reasons for the claim. The main principle governing the burden of proof is that the party who makes a legal claim must prove the operative legal facts for that claim, i.e. the facts that according to law are originally sufficient reasons for the claim. In theory, the term means two kinds of burden: the burden of production of evidence and the burden of persuasion which is an obligation that remains on a single party for the duration of court proceedings. The burden of persuasion is different from the evidential burden or burden of production of evidence which is an obligation which may shift between the parties over the course of the hearing or trial. It is in this context that the Hon'ble Apex Court in Raghavamma case held that burden of proof lies upon the persons, as to prove a fact and it never shifts but the onus of proof shifts. It has been held in Lakshmana Vs. Venkateswarlu, AIR 1949 PC 278 that initially burden of proving a prima facie case in his favour is cast on the plaintiffs; when he gives such evidence as will support a prima facie case, the onus shifts to the defendants to adduce rebutting the evidence to meet the case made out by the plaintiffs. As the case continues to develop, the onus may shift back again to the plaintiffs. 13. In view of the fact that plaintiff had discharged the initial burden to prove the agreement the onus shifted on the defendants to controvert the genuineness of the agreement of sale. Against this background fact, I do not find any illegality in the observation of the trial court that burden of proof was on the defendant to prove the in genuineness of their signature. I find merit in the submission advanced on behalf of the respondents that Ganga Sao, one of the signatories and defendant no. 1, in his own evidence, as discussed above, has not denied having signed over the document. It has been stated by him that he was forced to sign over the document. Therefore, there was no occasion or requirement for the plaintiffs to get it further examined by any expert. On the contrary, it has been admitted by defendant in his evidence that his signature was obtained by coercion but he had not lodged any complaint or report in this regard. Therefore, there was no occasion or requirement for the plaintiffs to get it further examined by any expert. On the contrary, it has been admitted by defendant in his evidence that his signature was obtained by coercion but he had not lodged any complaint or report in this regard. Pleading is no evidence and when agreement had been brought on record and proved, mere taking shifting defence of coercion in getting the signature and in the same breath denying it in WS by the Defendant was not sufficient, and it was incumbent on their part to lead evidence to support their specific defence. Having failed to do so, they failed to discharge the onus on their part to dispute the genuineness of the agreement of sale and proof that it was obtained either by coercion or that agreement did not bear their signature. 14. Under the aforesaid facts and circumstances, the judgment and decree passed by the Learned Courts below is affirmed and the appeal is dismissed. 15. Consequently, I.A. No. 2575 of 2021 stands disposed of.