Sushilaben Sattarbhai Vohra vs Jubedaben Satatrbhai Vohra and 1

N.V. Anjaria, J.—The present revision application is directed against judgment and order passed by leaned Additional District Judge and Presiding Officer, 3rd Fast Track Court, Nadiad dated 31.07.2007 allowing the appeal and setting aside judgment and decree passed by the Trial Court. The revisionist is the original plaintiff. The Civil Suit No. 328 of 1999 instituted by the plaintiff came to be decreed on 11.04.2002 by learned Civil Judge (J.D.), Mehmadabad and defendant-respondent herein was directed to hand over the possession of the suit premises within three months, and was further directed to pay Rs. 4,400/-being the unpaid amount of rent and to pay mesne profit at the rate of Rs. 200/- per month from the date of suit till handing over of possession.

The relevant facts may be noted. In the plaint, it was the case of the plaintiff that house property comprising of four rooms bearing City Survey No. 303, description of which was found in paragraph 1 of the plaint, situated at Mehmadabad was owned by him. Out of the said rooms, two rooms in the front were taken by the defendants on rent, as per the case of the plaintiff. The taxes, etc., were to be paid by the tenant. It was stated that Rs. 200/- was the monthly rent fixed and which was standard rent. The plaintiff give notice dated 02.06.1999 claiming for arrears for 19 months from 01.11.1997 to 01.06.1999 and it was contended that rent upto 31.08.1999 was not paid. Defendants gave their reply on 12.06.1999. On such pleadings and ground, possession of the suit property was claimed.

2.1 In contesting the suit by filing written statement (Exh. 12), it was the case of the defendants that defendant No. 1 Jubedaben was the first legal wife of Sattarbhai Nabijibhai. The plaintiff Sushilaben was the second wife. It was denied that suit rooms were taken on rent by them as claimed in the plaint by the plaintiff. It was defendants'' case that Jubedaben was staying in the premises City Survey No. 303 since her marriage with husband Sattarbhai; that they had a children and with the children so borne, she was residing their since last 38 years. It was further contended that years back, the suit property belonged to the ownership of father-in-law of the defendant, that is, father of Sattarbhai named Nabijibhai Rasulbhai and the electricity bills in name of Rasulbhai were paid by the defendant. It was the case of the defendant that the taxes in respect of the premises were also paid by her.

2.2 it was next contended and pleaded in the written statement that maintenance cases were initiated in the Khambhat Court against Sattarbhai and in that proceedings, Sattarbhai had given one room in the front and one sitting room in lieu of maintenance in favour of defendant No. 1. It was then contended that defendant had filed an objection application in respect of the property before the City Survey office and in Case No. 01 of 1997 also, she had stated the facts to the authority. In that proceeding, it was further pleaded, that Sattarbhai had also filed his reply and admitted that Jubedaben was his first wife. Panchnama was recorded. It was therefore denied by the defendant that there was any tenancy or that she was tenant in the suit property. It was pleaded that she had half-share in the property and the suit was instituted to harass her.

2.3 The Trial Court framed issues at Exhibit 13 which included issue No. 1 whether plaintiff proved that the defendant was his tenant. The suit was decreed. In the appeal, however, the lower appellate court upturning the decree allowed the appeal of the defendants.

Heard learned advocate Mr. Satyen B. Raval for the applicant and leaned advocate Mr.H.M. Parikh for the respondent.

3.1 Assailing the impugned judgment and order of the lower appellate court, leaned advocate for the applicant Satyen B. Raval, firstly submitted that the case of the defendant was one of denial of title of the plaintiff. In that regard he relied on Section 111(g) of the Transfer of Property Act, 1882 and contended that the defendant had denied title of the landlord. It was according to him a substantive ground in itself.

3.2 He secondly submitted that the Trial Court had rightly held that the defendant No. 1 was tenant of the applicant-plaintiff and there were no good reasons for the lower appellate court to upset the finding. It was submitted that as observed by the Trial Court, the abstract from the property register and the order of the Deputy Collector (Exh. 32) showed that originally in the year 1956 the property belong to father of Sattarbhai and father-in-law of defendant No. 1 which was subsequently sold in 1978 and 1981 and thereafter on 06.01.1997, the plaintiff purchased it. It was submitted that thus the Trial Court rightly held that the plaintiff was the owner of the property.

3.3 In the third place, it was submitted that the lower appellate court was not justified in holding that the plaintiff could not prove his case that the defendant was tenant. In furtherance of this contention, learned advocate relied on the provisions of Section 103 to 106 onwards of the Evidence Act relating to burden of proof. He relied on decision in Narayan Govind Gavate and Others Vs. State of Maharashtra and Others, which explained the working of Rules of evidence regarding burden of proof and onus of proof. It was submitted that depending upon the pleas raised by the parties in course of the proceedings, the burden of proof goes on shifting and it is the ultimate status of the pleadings and evidence, which would determine as to on whom the burden to prove a particular aspect or point would lie.

3.4 it was further submitted by learned advocate for the applicant that the plaintiff had no adequate opportunity to prove her case properly and she could not cross-examined the defendant for no fault of hers. Learned advocate invited attention of the court to the observations in the judgment and order of the lower appellate court that the original defendant or even the original plaintiff was not afforded a fair trial. It was submitted therefore, that when such was the view of the lower appellate court, it could not have allowed the appeal.

3.5 On the other hand, learned advocate for the respondent-defendant supported the impugned judgment and order. He submitted that it was for the plaintiff to prove his case which she could not prove and could not establish that defendant was tenant in the suit property. According to him, the defence of the tenant was not one of denial of title as sought to be contended. He further submitted that there was no semblance of evidence regarding tenant-landlord relationship. He submitted that the Civil Suit is decided on the evidence produced by the parties.

The Court considered the facts of the case, the pleadings of the parties and the material on record. Taking up the first contention that the defendant had denied the title of the plaintiff and Section 111(g) of the Transfer of Property Act would apply, the same is of no substance when the case of the defendant and her pleadings were examined attentively. What was pleaded by the defendant No. 1 was that the rooms were given to her to use and stay there in lieu of her maintenance rights by her ex-husband Sattarbhai and she was residing there availing of such right. It was her case that she has also one-half share in the suit property. This pleading and the contention did not amount to denial of title. It could not be said that by contending that she had share in the property and that it was given to her in lieu of maintenance could not be construed as a title of the plaintiff denied. Defendant claimed her right in the property of the plaintiff as above. Therefore, Section 111(g) of the Transfer of Property Act cannot be resorted to and the contention in that regard fails as devoid of any substance.

4.1 The next contention that once the plaintiff could show her ownership and that she had purchased the property at a subsequent point of time, would shift onus of proof on the other side. What was contended was that in such circumstances, it was for the defendant to establish that she was not a tenant. In this contention, there is a basic fallacy in comprehending the concept of burden of proof and onus of proof. Burden of proof is a static concept. A party show asserts a particular thing is required to prove the same. In other words, the burden to prove the fact assert lies on the party so asserting. This burden remains unchanged throughout the proceedings.

4.2 Therefore, when it was the case of the plaintiff that defendant'' was the tenant and there was landlord-tenant''s relationship, it was obligatory for the plaintiff to discharge the burden of showing that fact by adducing atleast prima-facie evidence. There was no iota of evidence produced or adduced to suggest that she was a landlord and defendant was the tenant. Claiming that the plaintiff was the owner of the property is by no means showing that the defendant is her tenant. The plea of tenancy has to be substantiated. It was a burden to be discharged in law by the plaintiff, which she failed to discharge. In the circumstance, it was entirely misconceived on part of learned advocate for the applicant to press into service the rules of shifting of onus. The onus of proof would arise provided that the initial burden was discharged. What really shifts in light of the pleadings and evidence of the parties is the onus of proof, and not the burden of proof, which as stated above, is a static phenomenon.

4.3 In Anil Rishi Vs. Gurbaksh Singh, the Court was considering the case in a suit for declaration wherein the plaintiff alleged that the sale deed was forged and a void document. It was held that once the plaintiff had asserted the fact, the burden to prove it was on him only. The initial burden of proof was on the plaintiff in view of Section 101 of the Evidence Act. Section 101 dealing with burden of proof says that whoever desires any Court to give judgment as to any legal right or liability dependent on existence of facts which he asserts, must prove that those facts exists. It further says that when a person is bound to prove the existence of any proof, it is said that the burden of proof lies on that person. It is also the rule of evidence that where neither party leads the evidence, the suit must fail, which also indicates that the initial burden of the fact asserted is on the plaintiff.

4.4 In Rangammal Vs. Kuppuswami and Another, , following was observed on the position of law regarding burden of proving a fact:

Section 101 of the Evidence Act has clearly laid down that the burden of proving a fact always lies upon the person who asserts the fact. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. Until he arrives at such conclusion, he cannot proceed on the basis of weakness of the other party.

In absence of any evidence even of primary nature to support the case of the plaintiff that the defendant was tenant, the finding recorded by the Trial Court with regard to issue No. 1 was rendered without any basis whatsoever. The Trial Court misdirected itself in proceeding to held that the defendant was tenant on the premise and the reasoning that the plaintiff was able to show that she was the owner and she had purchased the property. The lower appellate court was justified in observing that the plaintiff had not proved her case beyond doubt that the original defendant was her tenant. It could be observed that it was rendered doubtless in absence of any evidence worth the name that the plaintiff had miserably failed in proving her case and the facts pleaded in the plaint. It was incumbent that the fact of tenancy is shown to be in existence by producing some evidence, which could be relieved on. In this context, the first appellate court was justified in allowing the appeal.

5.1 The contention that no fair opportunity was available to the parties and therefore the proper course for the lower appellate court was to remand the matter is a tempting contention, but on a deeper examination it was found to be hollow. It appears that at one stage, because of absence of the defendant, the evidence was closed and there was no cross-examination of the plaintiff by the other side. If that aspect at all caused any prejudice, it was to the defendants. As already noticed, the plaintiff did not produce any reliable evidence to prima-facie demonstrate the truth in her plea that defendant was her tenant. Once that was the position obtained and the very initial burden the plaintiff was unable to discharge, her suit has to fail. Remand of the case would amount to permitting the plaintiff to fill up a lacuna in her case which existed at the very institution of the suit. The remand cannot be resorted to so as to give a party an unfair advantage over another party and to permit to fill up the gaps in her case which was his burden to be discharged at the threshold, and in absence of which she could not have succeeded. For the foregoing reasons and discussion, the decision of the lower appellate court could be said to have properly taken in light of the facts, the pleadings and the principles of law applicable. The appeal was rightly allowed. No interference is called for in the impugned judgment. Hence, the revision application is dismissed. Rule is discharged.

Record and Proceedings shall be sent to the Court concerned.