RADHAKISHUN Vs. KEOLA PRASAD

JUDGEMENT

(1.) This is a Letters Patent appeal from a decision of a single Judge of this Court. The defendants first party to the suit are the appellants and the suit is one which was brought under Order 21, Rule 63, Civil P. C, after the rejection of a claim case. "When the case first came by way of Letters Patent appeal it came before Dhavle, J. and myself and we considered that it was necessary to look into the evidence and accordingly we sent for the record. At this hearing we have examined the evidence and in our opinion a perusal of the evidence thoroughly justifies the view taken of it by the trial Court. Indeed it was possible for the learned Munsif in the trial Court to have taken a very much stronger view than he did in fact in the same direction as the finding at which he actually arrived.

(2.) The defendants first party had got a money decree against the defendants second party and in execution of that decree they attached an area of 30 bighas odd, the property of the judgment-debtors, being their bakast land. The plaintiff, Keola Prasad, preferred a claim case under Order 21, Rule 58, Civil P. C, saying that the lands in question were his. The claim was rejected in the execution Court and it was there held that the plaintiff was a mere benamidar of the judgment- debtor. The plaintiff therefore brought this suit under Order 21, Rule 63. The lower appellate Court and the learned Judge of this Court before whom the matter came in second appeal had apparently not had their attention drawn to the law as to the onus of proof. There have been many such cases and the leading judgment is that of their Lordships of the Privy Council in Mohammad Ali Khan V/s. Mt. Bismillah Begum . That judgment has since been consistently followed in this Court. When an executing Court dismisses a claim under Order 21, Rule 61, Civil P. C, the decision is final as to the right asserted till it is displaced by the result of a civil suit and when the claimant brings such a declaratory suit, the onus in such suit is on the claimant to prove that he has the right which he claims. The Munsif, who heard this suit, was of opinion that the transaction upon which the plaintiff relied in support of his alleged title to the land was a thoroughly farzi transaction on behalf of the judgment-debtor. When the case went up on appeal to the learned District Judge, he reviewed the evidence not, it may be said, with that degree of thoroughness which was displayed in the Munsif's judgment and was of opinion that, although the circumstances of the transaction relied upon by the plaintiff were in the highest degree suspicious, yet nevertheless they were not sufficient to prove that the transaction was a farzi transaction; and treating the matter as though the onus of proof lay upon the judgment-creditor, he allowed the appeal. He made no reference to the burden of proof beyond this sentence: Now the onus is on the defendants first party, who allege farzi, to prove it, but at the same time this is not an ordinary case of a farzidar turning round and claiming to be the real owner but one in which it is alleged that the real owner and the farzidar are in collusion to avoid a decree, and this is a circumstance which also requires to be taken into consideration.

(3.) In placing the onus upon the defendants first party who had already obtained a judgment in their favour in the decision of the claim case, the District Judge was clearly making a mistake. To adopt the learned District Judge's view would mean that in a suit after a decision of a claim case against the claimant one would begin with the assumption that the claim case was wrongly decided. The error of that point of view was pointed out in the decision of the Judicial Committee to which I have just referred. When the matter came up in second appeal the question of onus was apparently not presented to the learned Judge and he dealt with it as being merely an appeal from a decision of fact and decided that he would not disturb the view of the District Judge in second appeal. Accordingly he dismissed the appeal. It is hardly necessary to investigate again in detail the evidence which was given in the case. It was thoroughly dealt with by the learned Munsif and again by the District Judge, although in lesser detail. The learned District Judge agrees with the view of the Munsif to this extent: that the evidence adduced by the defendants first party in this suit showed that the circumstances of the transaction relied upon by the plaintiff were of a highly suspicious character. It was however the business of the claimant in this case to not merely stand upon defence and to say that the defendants first party had not made out their case but to prove affirmatively in view of the decision in the claim case that the transaction relied upon by him was a bona fide transaction. There was one element of the evidence to which the learned District Judge and the learned Judge of this Court might have given very much greater weight.