Patna High Court
Chandradeo Singh And Ors. vs Moti Devi And Ors. on 31 July, 1989
Equivalent citations: 1992(1)BLJR280
JUDGMENT Binod Kumar Roy, J.
1. Refendants 1st party of a Title Partition Suit, who were directed to lead evidence first, are the petitioners.
2. The suit in question has been filed by the plaintiffs opposite party first party claiming 1/3rd share in the suit properties which includes immovable as well movables.
3. From a perusal of the plaint of the opposite party first party and the written statement of the defendant Nos. 1 to 3-petitioners it is clear that the plaintiffs have been dubbed as strangers to the Joint Family of the defendants and their locus standi to maintain the suit for partition was challenged. Even the generalogy given by the plaintiffs was challenged as incorrect, incomplete and mala fide. The order in which several persons had died, as mentioned in the plaint was also disputed. To crown all exisence of the properties described in Schedule III of the plaint, the story of blending and amalganation of the properties mentioned in Schedule II, the Kartaship of Defendant No. 1 Chandradeo Singh, factum of productivity of lands and enough saving therefrom etc. as set forth in the plaint were also denied by the petitioners though they also set up their title in regard to some properties on the plea of ouster. It is thus clear that almost the entire claim of the plaintiff was disputed by the defendants-petitioners.
4. During the pendency of the suit, the plaintiffs sold their entire 1/3rd interest in the suit properties, except the house bearing Holding Nos. 74 and S5 and part of Holding No. 98, to opposite party Nos. 15 to 17 who had filed a petition for adding them as co-plaintiffs which was allowed by the order dated 29-8-1981. Despit passing of the aforementioned order, under some wrong notion, opposite party Nos. 15 to 17 filed a separate petition dated 26-6-1986 for their transposition as co-plaintiffs which was allowed and they were transpased as such on 8-7-1986. By an order dated 7-6-1986 the court below directed the co-plaintiffs (opposite party Nos. 15 to 17, who were intervenors-defendants) to start leading evidence and by a further order dated 14-6-1986 directed them to appear with their witnesses Thereafter the petitioners filed a petition dated 8-9-1985 praying to clarify the order dated 8-7-1986, as according to them, the said order has been passed contrary to the previous order but the learned Subordinate Judge by the impugned order rejected the petition directing the petitioners to examine their witnesses first on the ground that since defendant Nos. 1 to 3 have asserted acquisition, of absolute title by being in adverse possession for several 12 years, which is obviously against the legal presumption of jointness of a Hindu family.
5. Mr. Chuni Lal, learned Counsel for the petitioners, contends that the order dated 7-6-1986 directing the intervenors-defendants, who were later on transposed as co-plaintiffs, to bring their witnesses first not having been recalled and/or reviewed and not even set aside the order dated 8-7-1965 was obviously passed under some confusion and the clarification by the court below on account of legal presumption of jointness of Hindu family was wholly uncalled for and unwarranted, apart from the legal position that there is no presumption that a Hindu joint family possess any joint family property movable and accordingly, the onus was on the plaintiffs including the interveners to prove their case set up by them.
6. Mr. Parmeshwar Prasad Sinha, learned Counsel for the opposite party, contends that no Civil Revision lies against an order directing to lead evidence, mora so when defendant Nos, 1 to 3 were correctly directed to lead evidence first in view of their pleading that they had acquired title by being in adverse possession for several years. Mr. Sinha places reliance on a Division Bench Judgment of this Court in Ram Narayan Prasad v. Seth Sao to support his contention.
7. Order XVIII Rules 1 and 3 of the Code of Civil Procedure runs as follows:
1. Right to begin.--The plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff and contends that either in point of law or on some additional facts alleged by the defendant the plaintiff is not entitled to any part of the relief which he seeks, in which case the defendant has the right of begin.
3. Evidence where several issues.--Where there are several issues, the burden of proving some of which lies on the other party, the party beginning may, at his option, either produce on those issues or reserve it by way of answer to the evidence produced by the other party, and, in the latter case, the party beginning may produce evidence on those issues after the other party has produced all his evidence, and the other party may then reply specially on the evidence so produced by the party beginning will be entitled to reply generally on the whole ease.
8. Sections 101 to 104 of the Indian Evidence Act deal with the burden of proof. Sections 101 to 103 (excluding the illustrations given) run as follows:
101. Burden of Proof.-- 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.
102. On whom burden of proof lies.--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.
103. Burden of proof as to particular fact.--The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existences unless it is provided by any law that the proof of that fact shall lie on any particular person.
In the instant suit almost entire bundle of facts set forth by the plaintiff having been disputed by the petitioners in, view of Sections 101 to 103 the onus is clearly on the plaintiffs who desire a judgment wishing the court to believe the facts set forth by them.
9. In Bir Babu v. Raghubar Babu AIR 1947 Pat 469, a Division Bunch of this Court held to the effect that correct placing of the onus of proof is a vital point of proof procedure and an Incorrect placing of onus may, therefore, amount to material irregularity and where the affect of requiring the defendant to lead evidence seriously prejudices him by assuming without proof that the Hindu Law governs the family of the parties and deprives him of the very valuable right of adducing evidence in rebuttal of that adduced by the plaintiff, the prejudicial effect of the procedure is not capable of remedy and thy High Court ought to interfere in revision.
10. In Rameih Chandra v. H.D, Jain College AIR 1957 Pat 145 : 1956 BLJR 89. Choudhary, J., following the aforementioned Division Bench judgment also held that:
the correct placing of the onus of proof is a vital point of procedure and as such, the incorrect placing of the onus amounts to a material irregularity within the moaning of Section 115 of the CPC.
11. In Kura v. Jags Ram , the Supreme Court held that:
The burden of proof is on the plaintiff and to establish the ancestral character of land it is not sufficient to show that the name of the common ancestor from whom the parties are descended were mentioned in the revenue padigree. It should also be proved that the descendants of that common ancestor held the land in ancestral shares and that the land occupied, at the time of the dispute, by the proprietors thereof had devolved upon them by inheritance.
12. In P. Lakshmi Reddy v. L. Lakshmi Reddy , the Supreme Court, observed that : "It is well settled that the burden of making out ouster is on the person claiming to displace lawful title of a co-heir by his adverse possession" but it is also, equally true, as laid down by the Supreme Court itself in Mudlgowda Gowdappa Sankh v. Ramchandra that "there is no presumption that a Hindu family merely because it is joint, possesses any joint property. The burden of proving that any particular property is joint family property, is therefore, in the first instance, upon the person who claims it as coparcenary property. But if the possession of a nucleus of the joint family property is either admitted or proved, any acquisition made by the member of joint family is presumed to be joint family property. Thus is, however, subject to the limitation that the joint family property must be such as with its aid the property in question could have been acquired. It is only after the possession of adequate nucleus is shown, that the onus shifts on the person who claims the property as self acquisition to affirmatively make out that the property was acquired without any aid from the family estate. "
13. Pannalal v. Sitabai AIR 1953 Nagpur 70, a Division Bench of the Nagpur High Court of which M. Hidayatullah, J., was also party, proceeded to lay down on somewhat similar facts as follows:
The plaintiff must prima facie satisfy the court that there are reasons to believe that a particular property does exist, before the defendants in suit for partition can be called to account.
14. In Chandar Sah v. Most. Godhni this Court through S.K. Jha, J. held as follows:
It is true that if a joint family possessed property which was admittedly joint, the presumption would be that the property continues to be joint, and the burden would lie upon the member who claims it as his separate property to prove that there was a partition and that he got it on such partition. It is also true that this presumption is peculiarly strong in the case of brothers. It is further well settled that dealings and statements of parties determine the status of the family as to whether it was joint or jointness had disrupted. But, it is equally well settled there is no presumption that a family, because it is joint, possesses joint property or any property. When in a suit for partition a pary claims that any property or item of the property is joint family property the burden of proving that it is so rests on the party asserting the same, (reference in this connection may be made to the case of Shadi Lal v. Lal Bahadur AIR 1933 PC 85 and Smt Rukhmabai v. Lakshminarayan . To render the property joint, the plaintiffs must prove that the family was possessed of some property which formed sufficient nucleus with the income of which the property could have been acquired (reference in this connection may be made apart from the numerous decisions of the various High Courts to the decisions in the case of Appalaswami v. Suryanarayanmurti AIR 1947 PC 189) and (supra).
15. In Kuppala Obul Reddy v. Bonala Venkatar Narayana Reddy AIR 1984 Supreme Court 1971 the Supreme Court held that "There may be presumption that there is a Hindu Joint Family but there can be no presumption that the Joint family possesses joint family properties.
(emphasis added).
16. Similar was the view of the Privy Council in the decisions reported in AIR 1927 PC 179 & AIR 1941 PC 48 and of the Supreme Court in the decisions .
17. In K.C. Kapoor v. Radhika Devi AIR 1981 SC 2118 Paragraph 10 the Supreme Court laid down to the effect that the onus to proof was on the plaintiff governed by a mitakshara school of Hindu law who claimed half share in the suit property.
18. In Narayan Bhagwantrao v. Gopal Vinayak the Supreme Court explained that the expression "burden of proof" means sometimes, that a party is required to prove an allegation before judgment can be given in its favour' and it also sometimes means "that on a contested issue one of the two contesting parties has to introduce evidence".
(emphasis added).
19. To Devdattam v. Union of India , when a question arose as to whether the joint family provided the consideration money, as contended by the Union, for holding a property against in the name of the plaintiff and thus the property in question was a joint family property, the Supreme Court clearly laid down to the effect that the "question of onus pro-bandi is certainly important in the early stages of case and that it may also assume importance where no evidence at all is led on the question in dispute by either side, in such a contingency the party on whom the onus lies to prove certain facts must fail."
20. From the legal position explained it is clear that the court below has committed an apparent jurisdictional error in directing the petitioners to lead their evidence first merely because they have also set up an alternative plea of ouster.
21. In fairness to Mr. Parmeshwar Prasad Sinha, I must consider the Division Bench decision in Ram Narain Prasad v. Seth Sao . This Court in the peculiar facts and circumstances of that case, had refused to exercise its revisional jurisdiction after holding that the defendants admitted the fact alleged by the plaintiff and had also pleaded some additional facts compelling them to begin with the case. It was also held that ordinarily this Court should not interfere with the discretion of the court below in regard to a direction issued to a defendant to begin with the case.
22. In the instant case, in my view, the defendants shall be greatly prejudiced if the impugned order calling upon them to lead evidence first is not set aside, as it is apparently against the legal presumptions already explained.
23. In Ramchandar Singh v. Bibi Afsari Begum AIR 1957 Pat 224 this Court laid down to the effect that under Rule 3 of Order XVIII of the Code of Civil Procedure in a case when the burden of proving some of the issues lies on the defendant, it is open to the plaintiff, if he so choses, to reserve his evidence by way of rebuttal to the evidence produced by the defendant In view of Rule 3 of Order XVIII of the Code of Civil Procedure thus the plain-tiffs opposite parties may at their option either produce their evidence on the issue of ouster also or reserve it by way of answer to lead evidence which may be produced by the defendants petitioners.
24. For the reasons aforementioned, the impugned order is set aside. The plaintiffs are directed to lead their evidence first but may exercise their option in terms of Rule 3 of Order XVIII of the Code of Civil Procedure in regard to the issue of Defendants acquisition of title by ouster. The revision application is thus allowed but without costs.