SALEGRAM BAGARTY Vs. SANKAR BAGARTY

JUDGEMENT

(1.) This is an appeal by the defendant -appellant in the Courts below against a confirming judgment decreeing the plaintiff's suit for declaration of their right title and interest over the suit schedule properties. After hearing both the sides, and going through the records the Hon'ble Court held - 9. Having heard the learned counsel for the parties and on going through the records indisputedly, the learned Courts below have relied on the materials and findings of the Criminal Court in a proceeding under Section 145, Cr.P.C. the judgment nor the records having been called for nor admitted into evidence formally. The lower appellate court has specifically observed that the records of 145 Cr.P.C. proceedings have not been exhibited in the case but referred to and relied on by the trial Court, observing so. it has overcome from the lacuna by saying that otherwise the finding is sustainable while as a matter of fact, the appellate Court has also partly relied on such findings while considering with the judgment of the trial Court. The learned Courts below could not have relied on the materials and finding of the Criminal Court in its 145 Cr.P.C. proceedings without admitting it into evidence orcalling for the records from the Court of the S.D.J.M. concerned in the manner prescribed under law and as such consideration of inadmissible evidence by the learned Courts below have materially affected the findings of the Courts below and therefore is not sustainable in law. In a second appeal also the High Court can interfere with the findings if it is based on erroneous appreciation of law or on erroneous consideration of an inadmissible evidence on record. The finding recorded by the learned Courts below on the question of prepartition appears to have been recorded, relying on and referring to the aforesaid criminal proceedings and therefore are not sustainable. The finding of the Courts bellow on the issue of pre -partition has been rendered on a wrong placing of the burden or onus of proving prepartition on the defendants. The plaintiffs case was that there was pre -partition long long back and in accordance thereof the parties are in possession. It was therfore the onus on the plaintiffs to prove the pre -partition and then only the burden shall shift to the defendants to prove their case. The learned Courts below having placed the onus of proving of partition on the defendants, the decision is not sustainable in law and thus liable to be set aside. 10. In that view of the matter, the judgment and decree passed by both the Courts below are set aside and the matter is remitted back to the learned trial Court for disposal of the suit in accordance with law and the observations made in this appeal, after affording all reasonable opportunity to the parties to be heard in the case. The suit shall be disposed of within 4 months from the date of communication of this order. The lower Court records be transmitted immediately. The respective parties shall bear the cost of this appeal in the facts and circumstances of the case.