Jaideo Yadav vs Dayanand Yadav and Another

Mungeshwar Sahoo, J.—The defendant No. 1-respondent-appellant has filed this Second Appeal against the judgment and decree dated 15.04.1993 passed by 2nd Additional District Judge, Purnea in Title Appeal No. 50 of 1991 whereby the learned Lower Appellate Court allowed the appeal and reversed the judgment and decree of the trial court dated 19.06.1991 passed by Sub Judge I, Purnea in Title Suit No. 59 of 1986. The plaintiffs-respondents filed the aforesaid title suit for declaration of their title over the suit property and further for declaration that the sale deed executed by defendant 2nd party i.e. defendant No. 2 in favour of defendant 1st party i.e. defendant No. 1 on 29.04.1986 with respect to suit land is void ab initio and same is not binding on the plaintiffs. The plaintiffs claimed the aforesaid relief alleging that one Bacchan Yadav had two sons namely Saini Yadav and Jahuri Gope. Both brothers were joint. Saini Yadav died prior to revisional survey proceeding. Therefore, the suit property was recorded in the name of his two sons, Fuleshwar Yadav and Basudeo Yadav having one share and in the name of widow of late Jahuri Gope namely Tulia Devi having one share. The second son, Basudeo Yadav died unmarried in the year 1965. After final publication, Tulia Devi also died issueless. Therefore, plaintiff No. 1 became the absolute owner of the property. The plaintiff nos. 1 and 2 are the sons of plaintiff No. 1. Recently the defendant 2nd party describing himself to be the son of Jahuri Gope executed a sale deed in favour of defendant 1st party without any consideration on 29.04.1986. According to the plaintiff, Jahuri Gope died issueless and Prithwi Yadav, defendant 2nd party is fictitious person. The defendant-appellant is litigant and is next door neighbour of the plaintiff who managed to get the sale deed by false and fictitious man who is in no way related to Jahuri Gope or Tulia Devi.

The defendant filed contesting written statement alleging that both the brothers i.e. Saini Yadav and Jahuri Gope were separate and Prithwi Yadav, defendant No. 2 is son of Tulia Devi and Jahuri Gope and not the son of Chhattu Yadav. He was in need of money, therefore, he sold his property to the defendant No. 1. After execution of sale, the possession was delivered to the defendant-appellant.

The trial court after considered the evidences and materials available on record recorded a finding that the plaintiffs have failed to prove their case that Prithwi Yadav is the son of Chhattu Yadav. The trial court also recorded a finding that Prithwi Yadav is the son of Jahuri Gope who received consideration money. The wife of Dayanand Yadav, plaintiff No. 2 i.e. Meena Devi had applied for basgit purcha with respect to the suit property which indicate that the property was not inherited by the plaintiff otherwise there was no question of filing application for basgit purcha if in fact, the property was inherited by the plaintiffs. On these findings, the trial court dismissed the plaintiffs suit. The plaintiffs filed appeal. The Lower Appellate Court recorded a finding that the defendant failed to prove that defendant No. 2, Prithwi Yadav is the son of Jahuri Gope and, therefore, decreed the plaintiffs suit reversing the trial court judgment.

This Second Appeal was admitted on 18.03.1994 and the following substantial question of law was formulated:

Whether the finding of the appellate court that the sale deed is not a genuine document is vitiated for non-consideration of the other documentary evidences filed by the appellants-defendants.

At the time of hearing of this Second Appeal, after hearing the parties, it appears that another substantial question of law is involved in this Second Appeal for decision. Therefore, on being satisfied, the following substantial question of law was formulated:

Whether the Judgment of the lower appellate Court is vitiated for placing wrong onus on the defendant to prove his case instead of finding out as to whether the plaintiff has been able to prove his case because it is well settled that the plaintiff cannot be allowed to take advantage of the weakness of the defendant.

The Learned Counsel, Mr. Dr. Anshuman appearing on behalf of the appellant submitted that it is the specific pleading of the plaintiff that defendant No. 2 describing himself to be the son of Jahuri Gope executed the registered sale deed and the defendant No. 2 has been described in the cause title of the plaint as Prithwi Yadav, son of Chhattu Yadav. Therefore, the burden was on the plaintiff to prove this fact. Further, the defendant No. 1 also produced oral evidences in support of the fact that Prithwi Yadav is the son of Jahuri Gope. After considering these evidences, the trial court recorded the finding that plaintiffs failed to prove that Prithwi Yadav is son of Chhattu Yadav. On the basis of the evidences, the trial court also recorded a finding that Prithwi Yadav is the son of Jahuri Gope and, therefore, dismissed the suit. The learned Lower Appellate Court instead of meeting the reasonings of the trial court wrongly held that the main question was whether Prithwi Yadav was son of Jahuri Gope or not and further held that the defendant failed to prove that Prithwi Yadav was the son of Jahuri Gope, therefore, set aside the trial court judgment. According to the Learned Counsel, when the plaintiff approached the court pleading specifically that defendant No. 2 executed the sale deed in favour of defendant No. 1 describing himself wrongly as son of Jahuri Gope, it was the burden on him to prove this fact. The Learned Counsel further submitted that the trial court relied upon the documentary evidences as well the oral evidences and recorded the finding that Prithwi Yadav was son of Jahuri Gope but the Lower Appellate Court on flimsy grounds discarded the evidences wrongly holding that the family members have not been examined who are only competent to depose regarding relationship of Prithwi Yadav with Jahuri Gope and, therefore, the evidences of the witnesses are not admissible u/s 50 of the Indian Evidence Act. According to the Learned Counsel, the Lower Appellate Court has not considered in the light of the settled principles of law laid down by the Apex Court in the case of Dolgobinda Paricha v. Nimai Charan Misra, AIR 1959 Supreme Court 914 as the appellants have examined the villagers, the purohit whose evidences are admissible u/s 50 of the Evidence Act and the learned Lower Appellate Court has also discarded Parivarik Pustika only on technical ground that the same is not in the form prescribed and the age mentioned therein differs with the age given by the witnesses. The Learned Counsel further submitted that the Lower Appellate Court instead of investigating the case of the plaintiff wrongly investigated the case of the defendant and finding that defendant failed to prove his case decreed the plaintiffs suit which is entirely wrong approach. Therefore, the Learned Counsel submitted that the impugned judgment and decree are liable to be set aside.

On the other hand, the Learned Counsel appearing on behalf of the plaintiffs-respondents submitted that in the body of the plaint, the plaintiffs nowhere pleaded that defendant No. 2 is the son of Chhattu Yadav and the cause title cannot be termed as plaint. It is not the fact asserted and, therefore, the plaintiff''s simple case is that Prithwi Yadav is not the son of Jahuri Gope. Since defendant No. 1 is asserting that Prithwi Yadav is son of Jahuri Gope, the burden is on him to prove this fact. Therefore, the Appellate Court rightly held so and decreed the plaintiffs suit. The Learned Counsel further submitted that the plaintiff has also adduced evidences in support of his case that defendant No. 2, Prithwi Yadav is son of Chhattu Yadav. Moreover, the evidences adduced on behalf of the defendant-appellant are inadmissible u/s 50 of the Evidence Act. Therefore, the Lower Appellate Court has rightly formulated the point and set aside the trial court judgment. In such view of the matter, none of the substantial question of law formulated arises for consideration in this appeal.

From perusal of the plaint, it appears that the defendant No. 2 has been described as Prithwi Yadav, son of Chhattu Yadav. At paragraph 6 of the plaint, it is specifically pleaded by the plaintiff that the defendant 2nd party, Prithwi Yadav describing himself to be the son of Jahuri Gope executed a false and fabricated sale deed in respect of the suit land in favour of the defendant 1st party without consideration on 29.04.1986. From this statement of fact made by the plaintiffs, it is clear that according to the plaintiffs, defendant No. 2, Prithwi Yadav who is son of Chhattu Yadav has sold the suit property wrongly describing his father''s name as Jahuri Gope. Therefore, the existence of Prithwi Yadav is admitted by the plaintiff and this Prithwi Yadav is the executant of the sale deed. No doubt, subsequently, in the body of the plaint, the plaintiffs have said that Jahuri Gope died issueless. It may be mentioned here that the defendant''s case is that Prithwi Yadav is the son of Jahuri Gope. Now, therefore, the plaintiff has to prove his positive case that Prithwi Yadav is the son of Chhattu Yadav.

Section 101 of the Indian Evidence Act provides that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

Section 102 provides that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

In view of these provisions of the Evidence Act, the plaintiff has to prove his assertion that Prithwi Yadav is son of Chhattu Yadav. Admittedly, Chhattu Yadav has executed the registered sale deed in favour of defendant No. 1, appellant.

In the case of Vimal Chand Ghevarchand Jain and others vs. Ramakant Eknath Jadoo, (2009) 5 SC 713, the Apex Court has held that a registered deed of sale carries presumption that the transaction was a genuine one. If execution of sale deed is proved, the onus is on the defendant to prove that the deed was not executed and it was a sham transaction. In the present case, the plaintiffs are admitting the execution of the sale deed by Prithwi Yadav, defendant No. 2. The plaintiffs are only asserting that Prithwi Yadav is son of Chhattu Yadav.

In the case of Sita Sharan Prasad v. Manorma Devi, 2012(2) BLJ 165, this High Court relying on the decision of the Apex Court in the case of Prem Singh v. Birbal, (2006) 5 Supreme Court Cases 353 has held that there is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof thus would be on a person who leads evidence to rebut the presumption. Here, in the present case at our hand, in the sale deed, Prithwi Yadav described himself to be the son of Jahuri Gope and executed the sale deed. Therefore, the document cannot be said to be void ab initio and there cannot be presumptive invalidity attached to such a transaction. The said document can be held to be void ab initio only if the plaintiffs will be able to prove the otherwise fact asserted by them that Prithwi Yadav is the son of Chhattu Yadav and not the son of Jahuri Gope as described in the sale deed. Here, from the perusal of the judgment of the Lower Appellate Court, it appears that the Lower Appellate Court has not examined at all in the light of the aforesaid proposition of law laid down by the Apex Court as well as by this Court and has not at all considered the provisions of the Evidence Act and wrongly held that it is for the defendant to prove his case that Prithwi is the son of Jahuri Gope. It may be mentioned here that even if the defendant will not contest this suit and no evidence is adduced by the defendant then also the plaintiff will succeed only if they will be able to prove that Prithwi Yadav is son of Chhattu Yadav.

From perusal of the trial court judgment, it appears that considering the evidences available on record, recorded the finding that the plaintiffs have failed to prove that Prithwi Yadav is son of Chhattu Yadav. This finding has been recorded by the trial court on the basis of the oral evidence. It is well settled principles of law that if any finding of fact is recorded by the trial court on the basis of oral evidence, the same cannot be interfered with very lightly as routine manner by the Appellate Court unless it is pointed out to the Appellate Court that some vital statement of any particular witness has been escaped to be considered by the trial court or the trial court misread the same. It further appears that on the basis of the evidence of the villagers as well as Purohit and the defendant No. 1 himself who is next door neighbour of the plaintiffs, admittedly held that Prithwi Yadav is the son of Jahuri Gope. The trial court also relied upon Parivarik Pustika but the Lower Appellate Court discarded the same which is public document on flimsy grounds which are untenable.

In view of my above discussion, it appears that the trial court considering the case rightly appreciated the evidences and then recorded the findings and there is no reason as to why it should be interfered with but the Lower Appellate Court instead of examining the case of the plaintiffs examined the case of the defendant and thereby wrongly placed the burden on the defendant to prove his case. The Lower Appellate Court also did not consider the fact that when both the parties adduced evidences, the onus lost its importance and the Lower Appellate Court did not examine as to whether the plaintiffs have been able to prove that Prithwi Yadav is son of Chhattu Yadav. The Lower Appellate Court decreed the plaintiffs suit only finding the weakness of the defendant''s case. I, therefore, answered both the substantial questions of law formulated in favour of the appellant. Accordingly, this Second Appeal is allowed. The judgment and decree of the Lower Appellate Court is set aside and the judgment and decree of the trial court is restored. The plaintiffs suit is dismissed. No order as to cost.