UWENDRA THAPA Vs. TSEWANG DORJEE RINZING

JUDGEMENT

(1.) The learned District Judge vide the impugned judgment and decree declared the respondent no.1 (the plaintiff) the owner of the suit land and that he was in possession thereof, when admittedly, the suit land had not been transferred and mutated in the plaintiff's name. The suit land was admittedly owned by late Sarita Thapa - the mother of the appellant (the defendant no.1). The plaintiff had claimed to be the owner of the suit land based on an oral "family arrangement" between him and late Sarita Thapa, whereby he had lent Rs.4,00,000.00 to her and she had handed over the original Sale Deed (exhibit-P6) of the suit land owned by her, to his wife.

(2.) The defendant no.1 is not satisfied with the impugned judgment. Mr. Tej Bahadur Thapa, learned Senior Advocate for the defendant no.1, has advanced extensive arguments both on facts and law. According to him, the impugned judgment is unsustainable. It is his case that the averments in the plaint are bereft of any documentary or unimpeachable oral evidence. The evidence led by the plaintiff is beyond the pleadings and contradictory thereto. The plaintiff has made improvements and embellishments to his case. The burden of proof upon the plaintiff has not been discharged. There is variance between his pleadings and proof. He drew attention of this Court to Sec. 59 to 74 of the Indian Evidence Act, 1872. He also drew attention of this Court to Article 54, 58 and 65 of the Schedule to the Limitation Act, 1963. He emphasised on the relevance of sec. 34 of the Specific Relief Act, 1963. According to the learned Senior Counsel, the suit was also undervalued and barred by law under Order VII Rule 11 read with Sec. 151 of the Code of Civil Procedure, 1908. He relied upon Smriti Debbarma (Dead) Through Legal Representative v. Prabha Ranjan Debbarma and others,2023 SCC OnLine SC 9. Vijay vs. Union of India and others,2023 INSC 1030. Madholal Sindhu v. Asian Assurance Co. Ltd. & others,1945 SCC OnLine Bom 44/ AIR 1954 BOM 305. Om Prakash Berlia & Another v. Unit Trust of India & others,1982 SCC OnLine Bom 148 / AIR 1983 BOM 1. Suraj Lamp & Industries Pvt. Ltd. v. State of Haryana,(2012) 1 SCC 656. Pankajakshy v. Devaki Ramakrishnan,AIR 2011 Ker 30. Union of India v. Ibrahim Uddin & Another,(2012) 8 SCC 148. Ouseph Varghese v. Joseph Aley & others,(1969) 2 SCC 539. Union of India v. Vasavi Co-op. Housing Society Ltd. & others,(2014) 2 SCC 269.

(3.) In Smriti Debbarma (supra), the Supreme Court opined that burden lies on the party who asserts the existence of a particular state of things on the basis of which the relief is claimed as mandated in terms of Sec. 101 of the Evidence Act, 1872 which states that burden on proving the fact rests with party who substantially asserts in the affirmative and not on the party which is denying it. In terms of Sec. 102, if both parties fail to adduce evidence, the suit must fail.