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PETITIONER: LAKHAN SAO (DECEASED) NOW THROUGHHIS LEGAL HEIRS

       Vs.

RESPONDENT: DHARAMU CHAUDHARY

DATE OF JUDGMENT20/02/1991

BENCH: FATHIMA BEEVI, M. (J) BENCH: FATHIMA BEEVI, M. (J) RAY, B.C. (J)

CITATION:  1991 SCR  (1) 544        1991 SCC  (3) 331  JT 1991 (1)   639        1991 SCALE  (1)240

ACT:      Code of Civil Procedure, 1908: Suit for declaration  of title  and  possession-Burden  to  prove  title  is  on  the plaintiff-But  when  both  plaintiff  and  defendant  tender evidence  the question of burden of proof is not  important- Court can consider the entire evidence on record.

HEADNOTE:      The respondent-plaintiff instituted a suit against  the appellant-defendant for declaration of title and  possession of  the  suit properties on the basis of a  sale-deed  dated February  10,  1964 executed in his favour by  Mrs.  T.  The appellant-defendant  also asserted his title and  possession under  an earlier deed dated February 14, 1959  executed  by Mrs.  T  in his favour.  The respondent contended  that  the deed of 1959 in favour of the defendant was sham and without any consideration.  The Trial Court decreed the suit and the decree was confirmed in appeal. The High Court set aside the decree  and remanded the case to the first  appellate  court stating that the burden to prove that the 1959 deed was sham was on the plaintiff.  After the remand, the first appellate court  considered  the evidence adduced by  both  sides  and upheld the plaintiff’s title and confirmed the decree of the trial  court.  The second appeal filed against the  judgment was dismissed in limine by the High Court.      In  defendant’s appeal to this court it  was  contended that inspite of specific direction by the High Court in  the order of remand that the burden to prove that 1959 deed  was sham was on the plaintiff, no fresh evidence was tendered by the  plaintiff  to discharge the burden  and  the  appellate court  proceeded  to examine the evidence  tendered  by  the defendant  and rejected the same; hence the appellate  court committed  an error in disposing the appeal which gave  rise to  a substantial question of law and the High Court  failed to  exercise  its  jurisdiction under  Section  100  CPC  in dismissing the second appeal in limine.      Dismissing the appeal, this Court      HELD: 1. It is always open to the defendant not to lead any evidence where the onus is upon the plaintiff but  after having gone into                                                        545 evidence, he cannot ask the court not to look at and act  on

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it.  The question of burden of proof at the end of case when both  parties  have tendered evidence is not  of  any  great importance  and  the court has to come to a  decision  on  a consideration of all materials. [515H; 516A]      2.  In  the  suit  based  on  title   the  burden   was undoubtedly on the plaintiff to prove such title.  When  the plaintiff  assailed the earlier deed executed by his  vendor in respect of the same land it was for him to establish that it  was a Farzi Kebala and sham transaction  unsupported  by consideration.   But in examining the question  whether  the plaintiff had succeeded in proving the negative fact it  was open to the court to consider the entire evidence on  record when both the parties have tendered evidence and no part  of the evidence could be left out.  The plaintiff proceeded  on the  basis that the deed executed by his vendor in 1959  was sham  unsupported  by consideration and it never  came  into operation thereby pleading the necessary facts in support of his title.  Evidence was tendered to prove what has alleged. To counter the claim, the defendants have asserted that  the consideration  was paid under the deed and counter  evidence was  tendered.  The entire evidence was fully apprecited  by the  Appellate  Court and the findings recorded.   Thus  the Appellate  Court  recorded  definite  findings  on  a  clear analysis  of the entire evidence and the findings are  fully supported  by the evidence on record.  Therefore,  no  error had  been  committed by the learned Judge in  his  approach. [597C-D; 599B-C]

JUDGMENT:      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1440  of 1986.      From  the  Judgment and Order dated 30.11.1985  of  the Patna High Court in Second Appeal No. 129 of 1983.      Ranjan  Diwvedi, A.N. Bardiar and R.S. Sharma  for  the Appellants.      D. Goburdhan and D.N. Goburdhan for the Respondent.      The Judgment of the Court was delivered by      FATHIMA  BEEVI, J. The plaintiff-respondent  instituted the  suit  for  possession of the land in Khata  No.  19  in village  Gauripur  in 1968 claiming title under Ex.  2  sale deed dated February 10, 1964 executed in his favour by  Mst. Tetri,  the widow of Chhathu Sah, the original owner.   Mst. Tetri had earlier executed Ex. 2-A sale deed on                                                        546 February 14, 1959 in favour of her brother’s son Lakhan  Sao for  a consideration of Rs.600.  She cancelled this deed  on July 31, 1962 before transferring the property in favour  of the  respondent.   By proceeding  dated  11.7.1963  obtained mutation  in  her  name and paid  rent  on  18.7.1963.   The dispute, however, arose over possession of the land  between the respondent and Lakhan Sao that led to proceedings  under section  145,  Cr. P.C. By the order dated  March  4,  1966, Lakhan  Sao and his brother Gulab Sao the appellants  herein were  put in possession.   The present suit  was  thereafter instituted  by the respondent for declaration of this  title and possession.      The respondent alleged that the deed of 1959 in  favour of   Lakhan  sao  was  a  Farzi  Kebala   executed   without consideration  and was not operative and the respondent  had acquired valid title  under the transfer in his favour.  The suit  was resisted denying plaintiff’s title  and  asserting that the title and possession passed under the deed of 1959. The  Trial  Court  decreed  the  suit  and  the  decree  was

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confirmed  in appeal.  The High Court set aside  the  decree and remanded the case to the first appellate court  pointing out  that the burden to prove that the document of 1959  was farzi  in character and remained inoperative clearly lay  on the  plaintiff and the finding of the first appellate  court was  vitiated  by erroneous conception of  law.   After  the remand,  the  appeal  was  disposed  of  by  the  Additional District Judge by judgment dated January 31, 1983  upholding the plaintiff’s title and confirming the decree of the Trial court.   The second appeal filed against that  judgment  was dismissed  in limine by the High Court on 30.11.1985.   This appeal by special leave is directed against that judgment of the High Court.      Shri   Ranjan   Dwivedi,  learned   counsel   for   the appellants,  maintained  that  the  first  appellate   court committed  the  same error as was pointed out  by  the  High Court earlier in disposing of the appeal and the error  thus committed  has given rise to a substantial question  of  law and the High Court failed to exercise the jurisdiction under section  100,  C.P.C., in dismissing the appeal  in  limine. The  original defendant died and his  legal  representatives are the appellants before this Court.  It was submitted that the Additional District Judge had approached the question as to  whether  the  impugned  deed  of  1959  is  a  sham  and inoperative  transaction  by  casting  the  burden  on   the defendant,  in spite of the specific direction in the  order of  remand.   No  fresh evidence had been  tendered  by  the plaintiff  to  discharge  the  burden  of  proving  that  no consideration  passed  under  the  document  and  that   the document  was inoperative.  The Court proceeded  to  examine the                                                        547 evidence  tendered  by  the  defendant  to  arrive  at   the conclusion  and has found fault with the defendant  for  not proving  that consideration passed and the  transaction  has come into operation. This approach, according to the learned counsel,   has   vitiated  the  finding  and   resulted   in miscarriage  of justice.  The submission is that  the  lower appellate  court has discussed the evidence tendered by  the defendant  and rejected the same.  The respondent’s  learned counsel  pointed  out  that the lower  appellate  court  had properly  appreciated the evidence applying the correct  law as to the burden of proof.  The findings recorded are on the appreciation  of the facts and evidence of the case  and  no question   of law did arise and therefore the second  appeal has been rightly dismissed.      In  the suit based on title the burden was  undoubtedly on  the plaintiff to prove such title.  When  the  plaintiff has  assailed  the earlier deed executed by  his  vendor  in respect  of  the  same  land it was  for  the  plaintiff  to establish  that  it was Farzi Kebala  and  sham  transaction unsupported   by  consideration.  The   learned   Additional District  Judge has proceeded to consider how far this  onus which lay heavily on the plaintiff had been discharged.   He referred  to the various tests that have been laid  down  in order to ascertain that a particular deed is a Farzi Kebala. He  considered  the relationship between  the  parties,  the evidence relating to the custody of the document, passing of consideration,  motive  and possession.  It was  found  that Lakhan Sao and his brother Gulab Sao were closely related to Tetri,  that Ex. 2-A sale deed was in the custody  of  Tetri and it had been produced in Court by the plaintiff.  On  the evidence, it was found hat the stamp paper for the  document was  purchased by the vendor and there was clear  indication that the vendee did not take part in the preparation of  the

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document.  He inforred this fact from the circumstance  that incorrect particulars had been incorporated in the deed.  He rejected   the   contention   that   the   documents    were surreptitiously  obtained by the plaintiff and  his  vendor. It  was noticed that even after the execution of  the  deed, Tetri  was  continued to be in possession.   She  moved  the authorities for recording her name in Jamabandi and she  had paid  the rent.  Regarding the motive for the  execution  of the  deed, it was noticed that Mst. Tetri had debts and  the deed  was executed to cover the property from the  reach  of the  creditors  and  without  consideration.   The   learned Additional  District Judge considered the evidence  relating to  the consideration. He referred to the evidence of  PW-8, the  attesting  witness  and  PW-14  the  plaintiff.   These witness stated that nothing had been paid as  consideration. As  per the recital in the deed an amount of Rs. 500  was  a prior  payment  and Rs.100 was paid in cash at the  time  of execu-                                                        548 tion.  The learned Judge noticed that there was no  specific statement   regarding  the  payment  of  any  part  of   the consideration  in cash.  The vendor was dead.   Lakhan  Sao, the defendant, avoided the witness box.  The evidence of the parties to the document was not therefore on record.   Gulab Sao, the brother of Lakhan Sao, was examined as DW-11.   His evidence  was analysed and was found to be discrepant.   The learned  Judge on a consideration of evidence on both  sides found  that  the  evidence  on  the  point  of  payment   of consideration   by   appellant  Lakhan  Sao  is   far   from satisfactory and the evidence of the appellants is  unworthy of credit. Motive was found to be satisfactorily established as  the existence of debts to some creditors  was  admitted. On the question of possession, the learned Judge scrutinised the  evidence  and found that Tetri was in  possession  even after execution of Ex. 2-A.  Having found these  ingredients in favour of the plaintiff, the learned Judge concluded that Ex. 2-A executed by Tetri on 14.2.1959 was only Farzi Kebala without  any  consideration  and it  created  no  title  and possession to the appellant.      The  findings  are essentially findings of  fact.   If, however, the appellants succeed in showing that in recording the  findings  of fact, the court had proceeded on  a  wrong conception  of  law  as  to onus,  the  correctness  of  the findings  has  necessarily to be examined.  The  only  point that  has  been stressed before us is that  lower  appellate court  has wrongly proceeded on the basis that onus  shifted to  the defendant to prove the passing of consideration  and that  the  evidence  did not establish that  fact.   It  was maintained  that  the onus did not shift as the  burden  was entirely  on the plaintiff to prove the fact  that  document was  inoperative and no consideration did  pass  thereunder. We have point out earlier that the High Court has set  aside the  earlier decree pointing out the error committed by  the lower  appellate court.  This observation made by  the  High Court has been kept in mind by the Additional District Judge in  disposing of the appeal thereafter.  The  learned  Judge has  considered the question of burden on the  plaintiff  to establish   that  there  had  been  no  consideration.    In examining  the question whether the plaintiff had  succeeded in  proving  the negative fact it was open to the  court  to consider the entire evidence on record when both the parties have tendered evidence and no part of the evidence could  be left  out.   On a consideration of the whole  evidence,  the Court  has  concluded that there had  passed  consideration. This finding cannot, therefore, be said to be vitiated.

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    It  is  always open to the defendant not  to  lead  any evidence  where  the onus is upon the  plaintiff  but  after having gone into evidence, he                                                        549 cannot  ask  the  court not to look at and act  on  it.  The question  of  burden of proof at the end of case  when  both parties   have  tendered  evidence  is  not  of  any   great importance  and  the court has to come to a  decision  on  a consideration of all material.      In  the  present case, the plaintiff proceeded  on  the basis that the deed executed by his vendor in 1959 was  sham unsupported   by  consideration  and  it  never  came   into operation thereby pleading the necessary facts in support of his  title.   Evidence was tendered to prove  what  has been alleged.  To counter the claim, the defendants have asserted that  the consideration was paid under the deed and  counter evidence  was  tendered.   The  entire  evidence  was  fully appreciated  by  the  Court  and  the  findings  have   been recorded.  We do not agree that any error had been committed by the learned Judge in his approach.  He recorded  definite findings on a clear analysis of the entire evidence and  the findings are fully supported by the evidence on record.   We do  not  therefore  see any merit in  the  appeal  which  is accordingly dismissed.  No costs. T.N.A.                                  Appeal dismissed.                                                        550