RAMGOPAL Vs. RAM NARAIN

JUDGEMENT

(1.) A decree was passed for the recovery of money in favour of Bardichand father of the Respondent, against Saligram, father of the Appellants, in Civil Suit No. 203 of Samvat 1991 by the District Sub -Judge, Shajapur on 30th September 1935. Badrilal and Saligram are both dead and the present dispute is between their sons. In execution of that decree, on 5th December 1951, Ramnarain Respondent (son of the decree -holder) filed a list of assets of the deceased judgment -debtor for being attached and sold. That list included a house. On 14th December 1951, the Appellants, Ramgopal and Bhagirath objected to attachment of the house alleging that it did not belong to Saligram but was their self -acquired property. Thereupon the Court fixed 5th January 1952 calling upon the judgment -debtors to produce their evidence that the house was their self -acquired property. They produced three witnesses and also filed a copy of the judgment in Miscellaneous Case No. 47 of 1935 passed on 17th August 1939 by the District Sub -Judge, Shajapur. Then the decree -holder produced three witnesses in rebuttal. The learned Judge held that the Appellants failed to prove that the property was theirs and disallowed their objection. On appeal, the learned Additional District Judge, Shajapur also came to the same conclusion and dismissed the appeal.

(2.) IN this second appeal Shri R.R. Tiwari, learned Counsel for the Appellants contends' that the burden of proof was wrongly placed upon them. It is urged that the burden should have been placed on the decree -holder to prove that the property sought to be attached belonged to the deceased judgment -debtor Saligram and it was only in the event that he could get the house attached and sold. And since both the Courts below have viewed this matter with an erroneous approach, the judgment should be set aside.

(3.) I would refer to the decision of the Supreme Court in Mohammad Shah v. Fasihuddin Ansari AIR 1956 SC 713. That was a case where the Plaintiffs admitted that the Defendant was in possession of suit properties but they asserted that he was there as mutawalli and that his possession was on behalf of the Sunni Mahomedan community and claimed a declaration of title. Their Lordships held: