Huri Ram and Others vs Raj Coomar Opadhya

Mitter, J.—We are of opinion that the District Judge is in error in holding that, as regards plot 13, the burden of proof lay upon the defendants, and not upon the plaintiff. He says, "I think that the finding of the lower Court on this point might be defended, if the burden of proof lay upon the plaintiff to show that he was the real purchaser, but it lies upon the defendants to prove that he was not." The plaintiff in this case sought to recover possession of this plot alleging that he was dispossessed. Therefore, as an ordinary case, the burden of proof lay upon the plaintiff to establish a prima facie case. There is no reason why any difference should be made in this case because the defendants say that the property was purchased benami by the plaintiff. u/s 110 of the Evidence Act it is for the person who says that the party who is in possession of a disputed property is not the owner of it, to prove that he is not the owner of it. The section says--"when the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner." In this case there is no dispute between the parties that the defendants are in possession. The defendants say they are the owners of the plot in dispute, and it is for the plaintiff to prove that they are not the owners thereof. The burden of proof is on the plaintiff, and as the District Judge has not come to the conclusion in favour of the plaintiff upon the evidence adduced by him, we send back the record to him for a finding upon this point.

As regards the other plot, and in all other respects, we do not think that there is any ground for interference with the decision of the lower Appellate Court.

The case will be finally disposed of when the finding of the lower Appellate Court upon the point stated above comes up. We reserve the costs of this hearing.