In a second appeal concerning a dismissed partition suit, the High Court held that the burden of proof to establish the existence of three sons lay on the plaintiff. Consequently, adverse findings against the defendant were set aside.
The adverse findings recorded by the lower appellate court against the defendant are set aside.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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Reserved on 15.05.2018 Delivered on 02.7.2018
Case :- SECOND APPEAL No. - 500 of 1988 Appellant :- Beni Madhav Alias Beni Prasad Respondent :- Ram Bahadur Counsel for Appellant :- R.S. Verma,A.K. Tewari,B.G. Yadawa,Rajendra Kumar Yadawa Counsel for Respondent :- Kamlesh Kumar,M.N. Singh,Markandey Rai,Pulak Ganguly,Ramesh Chandra Dwivedi
Hon'ble Siddharth,J.
Heard Sri Suresh Kumar Srivastava and Sri B.G. Yadav learned Counsels for the appellant and Sri Markandey Rai, learned Counsel for the respondent.
This is defendant's second appeal against judgment and decree dated 07.12.1987 passed by Sri U.C. Dixit, Xth Additional District Judge, Allahabad in Civil Appeal No. 544 of 1986, whereby judgment and decree dated 23.5.1983 passed by Sri Shyam Sunder, VIIth Additional Munsif, Allahabad in Original Suit No. 69 of 1981 was set aside and appeal of the plaintiff was allowed.
Plaintiff instituted a suit for partition stating that house No. 149 situated in Alopibagh was joint property of deceased Beni Madhav, Beni Prasad, defendants and Ram Bahadur, plaintiff and the house was registered in the name of Beni Madhav, the elder brother; that Beni Madhav was unmarried and parties are his successors having ½ share each; that Beni Madhav lived in District Raibareilly and father and mother of the parties are alive; on 10.9.1980, the parties jointly made an application for mutation of their names in Nagar Mahapalika, which is pending; that on account of payment of house tax and water tax, dispute arose between the parties and hence suit is being instituted.
Defendant filed his written statement stating that they are
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only two brothers, who are rival parties to this suit and they did not have any third brother known as Beni Mathav. In fact Beni Prasad is known as Beni Madhav; that plaintiff had no share nor has any share in the property; that the signature on application dated 10.9.1980 is not of the defendant and he never filed any mutation application before Nagar Mahapalika; that he inherited the property by way of Will dated 14.7.1943 and he is in possession over the same since then; that the suit is not maintainable and deserves to be dismissed.
On the basis of pleadings of the parties issues were framed by the trial court,
Issue No.2 was decided in favour of the plaintiff to the effect that there is no defect in the valuation of the suit and court fees paid. Issue No.1 was decided holding that defendant is entitled ¾ share and plaintiff is entitled to ¼ share in suit property because he has got ½ of their house by way of Will from his maternal-grand-father and ¼ share in partition, which makes share ¾ and that of the plaintiff ¼. Issue No.3 was decided holding that the suit filed by the plaintiff is genuine and defendant is not entitled to any special cost. Issue No. 4 was decided holding that plaintiff is entitled to ¼ share and defendant to 1/3 share in the suit property and the suit was accordingly decreed.
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Two civil appeals were preferred by the parties before the lower appellate court. Appeal preferred by defendant was Civil Appeal No. 544 of 1983 and appeal preferred by plaintiff was Civil Appeal No. 569 of 1983. The defendant preferred appeal challenging ¼ share of plaintiff declared by the trial court and plaintiff preferred the above noted appeal on the ground that the trial court wrongly recorded the finding that Beni Madhav and Beni Prasad were the same persons, when they were two persons. He further challenged the decree on the ground that he has ½ share in the disputed property and not ¼ as held by the court below.
The lower appellate court found that plaintiff has not been able to prove his case nor he has led evidence to prove his case that he and defendant were only two sons of their parents and there was no third brother known as Beni Madhav. Suit of defendant was dismissed on the ground that since mother of the parties is alive, she has succeeded to the property of father being legal heir of Class I and her sons, parties to this suit would not have any share in the property being heirs of Class II and suit is not maintainable. This second appeal has been preferred by defendant and plaintiff has not preferred any appeal as per the statements of parties and therefore, the dismissal of the partition suit by the trial court has become final. In second appeal, only relief sought is that adverse findings recorded by the court below against the defendant may be set aside on the ground that if plaintiff failed to prove his case, defendant cannot be adversely commented by the lower appellant court.
Following substantial question of law was framed on 02.8.2006 by this Court,
“ Whether the burden of proof to prove that Kanhai has three sons was upon the plaintiff and not on the
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defendant?”
Learned counsel for the appellant has argued that judgment of lower appellate court is beyond pleadings of the parties. There was no pleading of existence of any Will in favour of the mother of the parties and lower appellate court carved out a third case and decided the dispute.
Further argument has been made that burden of proof lies on plaintiff to prove his own title and plaintiff ought to have proved his case by leading sufficient evidence irrespective of the fact whether defendant proved his case or not.
In case plaintiff failed to prove his title, suit should have been dismissed without commenting upon the case of defendant. Learned counsel for appellant has relied upon the judgment in the case of Union of India Vs. Vasavi Co-operation Housing Society Ltd., LawS(SC) 2014-1-12 and has relied upon paragraph Nos. 12 to 16 as follows:-
“12. It is trite law that, in a suit for declaration of title, burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the defendants would not be a ground to grant relief to the plaintiff.
13. The High Court, we notice, has taken the view that once the evidence is let in by both the parties, the question of burden of proof pales into insignificance and the evidence let in by both the parties is required to be appreciated by the court in order to record its findings in respect of each of the issues that may ultimately determine the fate of the suit. The High Court has also proceeded on the basis that initial burden would always be upon the plaintiff to establish its case but if the evidence let in by defendants in support of their case probabalises the case set up by the plaintiff, such evidence cannot be ignored and kept out of consideration.
14. At the outset, let us examine the legal position with regard to whom the burden of proof lies in a suit for declaration of title and possession. This Court in Maran
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Mar Basselios Catholicos v. Thukalan Paulo Avira reported in AIR1959 SC 31 observed that “in a suit for declaration if the plaintiffs are to succeed, they must do so on the strength of their own title.” In Nagar Palika, Jind v. Jagat Singh, Advocate (1995) 3 SCC 426, this Court held as under:
“the onus to prove title to the property in question was on the plaintiff. In a suit for ejectment based on title it was incumbent on the part of the court of appeal first to record a finding on the claim of title to the suit land made on behalf of the plaintiff. The court is bound to enquire or investigate that question first before going into any other question that may arise in a suit.”
15. The legal position, therefore, is clear that the plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not. We are of the view that even if the title set up by the defendants is found against, in the absence of establishment of plaintiff’s own title, plaintiff must be non-suited.
16. We notice that the trial court as well as the High Court rather than examining that question in depth, as to whether the plaintiffs have succeeded in establishing their title on the scheduled suit land, went on to examine in depth the weakness of the defendants title. Defendants relied on the entries in the GLR and their possession or re-possession over the suit land to nonsuit the Plaintiffs. The court went on to examine the correctness and evidentiary value of the entries in the GLR in the context of the history and scope of Cantonment Act, 1924, the Cantonment Land Administration Rules, 1925 and tried to establish that no reliance could be placed on the GLR. The question is not whether the GLR could be accepted or not, the question is, whether the plaintiff could prove its title over the suit property in question. The entries in the GLR by themselves may not constitute title, but the question is whether entries made in Ext.A-3 would confer title or not on the Plaintiff.”
Learned counsel for the plaintiff-respondent has stated that the burden of proof of the pleading that Kanhai had three sons was upon the plaintiff but defendant disputed the same and set
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up the pleading that Kanhai had only two sons and therefore, it was defendant, who was required to prove his case and since he failed to establish his case set up before the trial court, the pleadings set up by plaintiff stand proved.
After hearing the rival submissions, it is clear that suit of the plaintiff has already been dismissed by the lower appellate court and Civil Appeal No. 544 of 1983 preferred by defendant has been allowed. Therefore, suit of the plaintiff, which was decreed by the trial court has been dismissed and since no second appeal has been preferred against the same. The suit instituted by the plaintiff for partition has been dismissed. Therefore, the second appeal of the plaintiff remains only for the purpose of setting the adverse findings recorded by the lower appellate court against the defendant for not proving his case.
The substantial question of law framed in this appeal is answered to the effect that the burden of proof to prove that Kanhai had three sons was upon plaintiff and not on defendant as per Section 101 and 102 of the Indian Evidence Act.
The Second Appeal is allowed. The adverse findings recorded by the lower appellate court against the defendant are hereby set aside as per relief sought in the memorandum of second appeal.
This Second Appeal is allowed to the extent stated above. Parties shall bear their own costs.
Order Date :- 02.7.2018
Ruchi Agrahari
2 issues framed by the court
Whether the burden of proof to prove that Kanhai had three sons was upon the plaintiff and not on the defendant under Sections 101 and 102 of the Indian Evidence Act?
Whether the lower appellate court correctly set aside the defendant's appeal by recording adverse findings after the plaintiff failed to prove his case regarding the number of sons?
Colour shows how this judgement treated each authority
Union of India Vs. Vasavi Co-operation Housing Society Ltd.Referred¶26
Union of India Vs. Vasavi Co-operation Housing Society Ltd., LawS(SC) 2014-1-12
Maran Mar Basselios Catholicos v. Thukalan Paulo AviraReferred¶29
Maran Mar Basselios Catholicos v. Thukalan Paulo Avira AIR1959 SC 31
Jind v. Jagat SinghReferred¶31
Jind v. Jagat Singh, Advocate (1995) 3 SCC 426 · Who else cites this
2 provisions across 1 enactments
Beni Madhav Alias Beni Prasad
Ram Bahadur
Siddharth
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
