Mt. Jantra Koer vs Ali Jan Darji and others

Adami, J.—This second appeal arises out of a suit for a declaration of the title of the plaintiff No. 1 to the northern half of Survey plot No. 216 in khata No. 134. It appears that one Isri Lal had three sons, Rambhanjan, Rambahadur and Girwardhari Rambhanjan had a son-in-law Mahadeo Lal, who sold the whole of the plot No. 216 to the defendants. The plaintiff, as wife of Rambahadur, claimed that she was entitled to possession of the northern half of the plot. According to the plaintiff, the three brothers separated, and on Rambahadur''s death she obtained his share which was a half. It is not explained why Rambahadur should get a half in this plot, seeing that they were three brothers; but it has been found by the Munsif that it may well have happened that the other brothers got shares in other properties and in the arrangement between the three brothers half of this plot was given to Rambahadur and the other half to Rambhanjan.

The defendants'' case was that Rambahadur died joint with his two brothers and after his death Rambhanjan and Girwardhari separated and, therefore, the plaintiff would only be entitled to maintenance and would have no claim to the property in suit. The Munsif decreed the plaintiff''s suit finding that there was no evidence of a partition of the land between Rambhanjan and Girwardhari only. He held that the burden of proving that the separation took place after the death of Rambahadur lay on the defendants and they had failed to prove it. In the Srurvey Record the names of plaintiff and Rambhanjan only are entered, each having a half share, and the Munsif held that the presumption attached to the Survey Record had not been rebutted. He held that the two witnesses of the plaintiff had proved possession and that the case of possession set up by the defendant had failed entirely. With regard to the sale by Mahadeo Lal to the defendants, it could not be enforced since Mahadeo Lal was only a farzidar for Rambhanjan and had no power to sell the land to the defendants.

The learned Subordinate Judge on appeal has taken a different view He holds that, since the Record of Rights had not been produced, it, therefore, could not be taken in evidence, and, since there had been proceedings u/s 145, Criminal Procedure Code, between the parties, in which the defendants had been found to be in possession, that fact must weigh very heavily in favour of the defendants, and he seems to have considered that this threw the burden of proof on the plaintiff, for he only examines the plaintiff''s evidence as to possession. With regard to separation, he remarks that the plaintiff herself did not give evidence and her witnesses failed to prove separation previous to the death of Rambahadur. He was of opinion that it was likely that the surviving male members of the family wanted to get back the property which had been transferred to strangers and, therefore, the plaintiff had been put up to institute the suit. The learned Subordinate Judge has said that there is nothing on the record to show that there was separation in the family in the lifetime of Rambahadur, but in this he is evidently wrong, for the learned Munsif pointed out in his judgment that the defence witness No. 2 stated in evidence that there was a partition 35 years before the suit and that Rambahadur had died 25 years before. It is true that the Munsif found the defence witness No. 2 to be unreliable; but, at the same time, the statement of the learned Subordinate Judge is shown to be incorrect. The finding, too, of the learned Subordinate Judge as to Record of Rights cannot be upheld. It is true that the Record of Rights has not been marked as an exhibit in the case, but the pleadings of both the parties admit that in the Record of Rights the plaintiff and Rambhanjan are shown to be in possession each of half a share. Thus, the Record of Rights is admitted, and, that being so, it was for the defendants to rebut the presumption which the Record of Rights gave rise to, and I think that the learned Subordinate Judge has clearly laid the onus on the wrong party.

Taking the Judgments of both the Courts, it appears that while one Court held that the defendants'' evidence as to separation and as to possession was unsatisfactory, the other Court held the plaintiff''s evidence was equally unsatisfactory, and that being so, the learned Subordinate Judge should have given weight to the entry in the Record of Rights. I do not think that he was justified in finding that a decision in proceedings u/s 145, Criminal Procedure Code, threw the onus on the loser in those proceedings. The decision in proceedings u/s 145, Criminal Procedure Code is not of such a nature as to give rise to a presumption in a Civil Court in favour of the winning party in those proceedings. Moreover, the learned Subordinate Judge has not considered the finding of the Munsif that Mahadeo Lal, being a mere farzidar, had no power to sell the property to the defendants. This is a point which he should have considered.

The only course, I think, is to direct that the decree of the lower appellate Court should be set aside and the case be remanded to the learned Subordinate Judge for a re-hearing of the appeal. Costs will follow the result.