HOOVAYYA KANTHAPPA SHETTY Vs. RENUKA S SHETTY

JUDGEMENT

(1.) The short question that arises in this civil revision application filed under section 115 of the Civil Procedure Code, is as to on whom the burden of proof lies of the statements/averments made by him/her in his/her pleadings.

(2.) The respondent (Original plaintiff) filed S.C. Suit No. 1228 of 1978 in the City Civil Court, Bombay, against the petitioner (original defendant ) for possession of certain restaurant business alongwith certain moveable properties as also the premises in which the said business is carried on and payment of certain sum of money together with damages or mesne profits at certain rate and for accounts. In the said suit her pleading in para 1 of the plaint is as under :---

(3.) Mr. Badkar, learned Counsel appearing on behalf of the petitioner, urged that the burden of proof as to whether the respondent is the legal heir and representative of deceased Ramayya Dassu Shetty is on her as plaintiff and the burden should not have been shifted to the petitioner to prove whether she was the illegitimate child of deceased Ramayya Dassu Shetty. Mr. Badkar brought to my notice several decisions as regards the burden of proof in the like matters in cases of (Mt. Basanti v. Pohlu) A.I.R. 1952 Bilaspur 13; (K.S. Nanji and Co. v. Jatashankar Dossa and others) A.I.R. 1961 S.C. 1474; (B. Mahadeva Rao v. Yesoda Bai) A.I.R. 1962 Madras 141; (Sunkavilli Surana and others v. Goli Sathiraju and others) A.I.R. 1962 S.C. 342 and (Mahendra Manilal Nanavati v. Sushila Mahendra Nanavati) A.I.R. 1965 S.C. 364, to show as to how the burden of proof shifts and on whom ultimately it lies to be discharged. As rightly submitted by Mr. Shetty, in reply, all these rulings have no relevance because they pertain to appreciation of the evidence regard being had to the nature of the facts and circumstances obtaining in those individual cases. The only authority having some relevance to which Mr. Badkar has invited my attention is the case of (Ch. Kanhaiva Bux Singh and another v. Mt. Ram Dei Kuer and others) A.I.R. (31)1944 Oudh, 162, in which it was held :---