GYAN PRAKASH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE instant writ petition has been filed for setting-aside the judgment and order of the Board of Revenue dated 26. 12. 1998 (Annexure 3), by which the appeal No. 107/1995 filed by respondent No. 5 has been allowed setting-aside the judgments and decrees of the Revenue Appellate Authority, Hanumangarh, dated 31. 5. 1995 (Annexure 2) and of the Assistant Collector, Sangaria, dated 3. 8. 1994 (Annexure 1 ).

(2.) THE facts and circumstances giving rise to this case are that petitioner had executed an agreement to sell of twelve Bighas of land in favour of respondent No. 5 and others on 30. 6. 1978. Subsequently, a second agreement to sale dated 30. 12. 1980 was executed for the purpose of sale of the said land into. pieces and the present controversy is in respect of an agreement to sell to the extent of one Bigha, thirteen Biswas and six Bishansis. Petitioner filed revenue suit No. 73/93 in the Court of the Assistant Collector u/s. 183 of the Rajasthan Tenancy Act, 1955 (for short "the Act, 1955") for eviction of respondent No. 5, alleging that the later failed to pay the balance amount as per the terms of the said agreement and, thus, had no right to retain the possession of the land which had been handed over to him after taking the earnest money at the time of entering into the agreement to sell. Moreso, the agreement was in contradiction of the provisions of Sec. 42 (a) of the Act, 1955, which did not permit the sale in fragments. Some other reliefs were also sought. Respondent No. 5 defendant contested the suit. However, vide impugned judgment dated 3. 8. 1994 (Annex. 1), the suit was decreed. Being aggrieved and dissatisfied, respondent No. 5 preferred an appeal before the Revenue Appellate Authority, which was dismissed vide judgment and order dated 31. 5. 1995 (Annx. 2 ). THE respondent's appeal No. 107/95/ta/hanumangarh, has been allowed by the Board of Revenue vide judgment and order dated 26. 12. 1998 (Annx. 3 ). Hence this writ petition.

(3.) IT is strange that the first sentence, while deciding Issue No. 2, started that the burden of proof was on the petitioner-plaintiff and in the conclusion it has been decided against the respondent-defendant as he failed to produce the copy of the said agreement to sell. The trial Court has gravely erred while shifting the onus of proof from plaintiff to the defendant without giving any reason whatsoever. The trial Court also failed to make a distinction between "burden of proof" and "onus to prove". The suit as specifically filed on allegation that the respondent-defendant did not pay the amount as per the terms of the agreement. Therefore, it was the duty of the petitioner-plaintiff to file a copy of the agreement and prove its contents and further to prove that as per the agreement, the amount had not been paid. The trial Court was never aware of : what were the terms and conditions of the agreement; what was the due date on which the amount was to be paid; and whether the respondent-defendant had failed to make the payment thereof on the due date. IT simply referred to the pleadings that the money had not been paid by the respondent-defendant, and that too without considering the pleadings of the respondent-defendant that for executing the sale deed, prior permission of the Collector was mandatory which had to be obtained by the petitioner-plaintiff as per the agreement and as he could not obtain the said permission, there had been no fault on their part and his suit for specific performance was pending before the civil Court.