RAJESHWAR Vs. AJABSINGH

JUDGEMENT

(1.) JACKSON , A.J.C. 1. Bhagwat, the father of the plaintiff-respondent, on 22nd March 1919 sold a one-anna share of mouza Sulsuli to the defendant-appellant for Rs. 400. On 1st July 1919 he surrendered to the appellant his occupancy rights in what had been his sir land. The respondent and his brother, who is now dead, sued for a declaration that the sale and surrender were not binding on them and for possession. Their claim has been decreed by the trial Court, whose decree has been upheld by the lower appellate Court, though that Court has held that the sale was invalid and not merely as the trial Court did, that it does not bind the respondent.

(2.) I propose to refer first to a new plea raised here on behalf of the respondent. The fact that there was both a sale and a surrender of occupancy rights in what had been sir land is made a ground for attacking both. This is based on the pronouncement by Drake-Brockman, J.C. in Second Appeal No. 530 of 1918 that: if a covenant to relinquish the sir lands is part of the transaction of sale or of mortgage then the agreement to surrender will be void and unenforceable, no matter what ingenious devices may be employed to give color to it.

(3.) THE sale has been held invalid on the sole ground that it was effected while the property sold was under the management of the Collector in execution of a decree against Bhagwat. It is alleged that on 22nd March 1919, he date on which the sale-deed was executed and registered, Bhagwat made a deposit in the Collector's Court of a sum sufficient to satisfy the decree that the Collector was executing; but it has been held by the lower Courts that the deposit was not made before the sale and consequently that the property was still under the management of the Collector when the sale took place. That is a finding of fact but it is challenged on the ground that the burden of proof has been wrongly laid. It seems to me clear that the lower Courts have considered that the burden of proof lay upon the defendant. He examined two witnesses to prove that the deposit was made before the sale-deed was executed, but they have not been believed. It is argued that the burden of proof really lay upon the plaintiffs, that although the witnesses called by the defendant have been disbelieved there is no evidence that the sale deed was executed before the deposit was made and that the result is the same as if no evidence had been given on either side and the suit, as the burden of proof lay on the plaintiffs, must fail.