LAWS(SC)-1991-2-31

LAKHAN SAO Vs. DHARAMU CHAUDHARY

Decided On February 20, 1991
Lakhan Sao Since Deceased Through His Heirs And Legal Representatives Appellant
V/S
Dharamu Chaudhary Respondents

JUDGEMENT

(1.) 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 10/02/1964 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 14/02/1959 in favour of her brother's son Lakhan Sao for a consideration of Rs. 600. 00. She cancelled this deed on 31/07/1962 before transferring the property in favour of the respondent. By proceeding dated July 11, 1963 she obtained mutation in her name and paid rent on 18/07/1963. The dispute, however, arose over possession of the land between the respondent and Lakhan Sao that led to proceedings under S. 145, Criminal Procedure Code. By the order dated 4/03/1966, 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 his title and possession.

(2.) 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 plaintiffs title and asserting that the title and possession passed under the deed of 1959. 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 pointing out that the burden to prove that the document of 1959 9 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 judgement dated 31/01/1983 upholding the plaintiffs 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.

(3.) 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 S. 100, Civil Procedure Code, 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 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.