NIBARAN CHANDRA SEN GUPTA Vs. SASHI BHUSAN SEN

JUDGEMENT

(1.) The plaintiff and the defendants in this case are cousin, the plaintiffs being the sons of the younger brother of defendant s father. The plaintiffs brought the suit to recover 8 annas interest in several item of property described in the schedule to the plaint and were partially successful. In the present appeal, trough the other items have not been expressly abandoned, the plaintiff s claim to the, immoveable property described in the schedule kha to the plaint has been pressed.

(2.) It is contended, as was contended before the lower Courts, that as this property was acquired in 130 and the family was admittedly joint in mew, estate and worship up to 1303 B., tie onus of proving that the property was the self acquired property of defendant No. 1 lay on the defendant. This property as acquired when the fathers of he plaintiffs and the defendants were both living. Having regard to this fact, we think the lower Courts were right in applying the decision in sarada Prasad Ray v. Mahaniitdii Ray 31 C. 448, in whish it was held, under very similar circumstance, that the burden of prove rented on the party who asserted that the property in reality belonged to the either and not to the son in whose name it wan acquired. Though the learned District Judge remarks in his judgment that the decision of the can seemed to turn mainly on the question of onus it appears to us that in both the Courts below the judgments have dealt fully with the evidence and circumstances of the case, and have in effect arrived at findings that such presumptions as may arise in favour of the plaintiffs have been rebutted by the evidence. It is found, for instant?, on the evidence, that soon joint property as the family had could not have been sufficient to purchase the property now in dispute. It is also found that the defendant s story that the property was given to him in recognition of good work done by him as Tahsildar is greatly strengthened by the plaintiffs that no money was required for assuring the property and by the contents of the document itself. The lower Courts have in fast found that the plaintiffs have failed to prove either any original nuclear from which the property could be purchased or that there was any abandonment by the first defendant of this property to the common stock, and they appear to believe the defendant s story supported pay his own evidence that he himself acquired this property as his individual property, As already stated, we hold that the lower Courts have committed no error in law as regards the party on whom the burden of proof lay, and we also hold that in finding as they do that this property was the self acquired property, there had been no legal defeat which would justify our in-terferouoo in second appeal.

(3.) We accordingly dismiss this appeal with costs.