AJODHYA PANDEY Vs. BABOO MANGAL AND OTHERS

JUDGEMENT

(1.) This is an appeal against the judgment and decree passed by the Civil Judge, Deoria allowing an appeal against the judgment and decree passed by the III Additional Munsif, Deoria dismissing the plaintiff's suit with costs. The facts giving rise to this appeal are as follows:

(2.) The learned Munsif held that the trees and the bamboo clumps be -longed to the judgment -debtors and were liable to be sold in the execution of the decree. The learned lower appellate court held that the disputed trees and bamboo clumps belonged to the plaintiff and granted a declaration sought by the plaintiff -respondent. Being dissatisfied, the defendant -appellant has filed this appeal.

(3.) The learned counsel for the appellant contended that the learned lower appellate court erred in placing the burden on the defendants that the sale -deed was fictitious document. As the law stands, the initial burden no doubt is on the creditor but when the creditor is above to discharge the initial burden, the burden shifts to the other side, namely, the plaintiff to prove that the sale -deed was genuinely executed and not with the intention to defraud any creditor. The reason for keeping the initial burden on the creditor is simple. A creditor cannot lead direct evidence that a certain deed was executed in order to defraud the creditors. He has only to show and prove certain circumstances from which that inference can be drawn and if he is able to prove such circumstances from which an inference adverse to the debtor can be drawn then it is for the debtor to prove that the transaction was a genuine one. This view of mine is supported by a decision of the Punjab High Court in Bachan Singh Harnam Singh v/s. Banarsi Das Hari Ram ( : AIR 1961 P&H 361).