Patna High Court
Rampal Ram vs Suba Singh on 31 January, 1919
Equivalent citations: 53IND. CAS.83, AIR 1919 PATNA 414
JUDGMENT Jwala Prasad, J.
1. The plaintiff is the appellant. Ha executed a kabala, dated the 3rd February 1913, in favour of defendant No. 1 in the name of his son, defendant No. 2, purporting to sell 13 bighas 19 kathas of his kasht land in village Bihira, pargana and thana Arrab, for Rs. 1,400. On 2nd February 1916, the plaintiff brought a suit out of which this appeal has arisen, in the Court of the Munsif of Arrah for recovery of Rs. 619 as part of the consideration money with interest due under the said kabala.
2. The plaintiff's case was that out of Rs. 1,400, the consideration money of the kabala, he had received Rs. 601 on different occasions and got receipts granted therefor, and as regards the balance of the consideration money the defendant had promised to pay with interest at one percent per month and that the possession of the land sold was made over to the defendant and that subsequently the sale deed was lost from the basta of one Mnnshi Brij Kishore Sahay, to whom it was handed over for preparing an ekrarnama, and that the plaintiff afterwards came to know that the defendant had got surreptitiously the possession of the said sale deed, and when the plaintiff demanded from the defendant the balance of the consideration money he (defendant) paid Rs. 180 by several installments, but did not pay the rest. The cause of action mentioned in the plaint is 15th April 1915, when the date of payment expired. The defendant resisted the claim of the plaintiff, denying that anything was due to the plaintiff under the kabala and asserting that after the registration of the kabala the plaintiff brought it from the registration office, went to the defendant and made demand for the consideration money, and that the defendant then and there paid the entire consideration money to the plaintiff in one lump sum and the plaintiff made over the kabala to the defendant. The Munsif decreed the plaintiff's suit, holding that the full consideration of the kabala was not paid. On appeal the District Judge reversed the decree of the Munsif and dismissed the plaintiff's suit.
3. The learned District Judge disbelieved the account given by the plaintiff as to how the defendant came to be in possession of the sale-deed in question. The learned District Judge has held that the defendant-vendee was in possession of the land and had the sale certificate and the sale-deed. He has disbelieved the evidence on both sides namely, the evidence given by the plaintiff as to his not having received the consideration money in full and that given by the defendant as to the entire amount having been paid in one lump sum. The learned Judge has dismissed the suit upon the ground that a strong presumption of the full price having been paid to the plaintiff may be raised from the fact that the defendant was in possession of the land and the title-deeds. The question in this appeal is whether the District Judge is wrong in law in raising the presumption that he has done. It is said that the learned Judge himself has destroyed the presumption by holding that two small payments were made---one on 11th March 1913 and the other on 26th March 1913---which negative the theory of the defendant of a single payment of Rs. 1,400 in a lump sum. No doubt upon the finding of the Judge the case of the defendant of having paid the entire amount of Rs. 1,400 in one lump sum as asserted in paragraph 13 of his written statement must fail. If, therefore, the onus lay upon the defendant to prove the payment made by him, the plaintiff is entitled to succeed, but the onus of proving the case, as set forth in the plaint, lay upon the plaintiff in this case. He definitely stated that there was an agreement entered into by the defendant to pay the balance of the consideration money, with interest at the rate of one percent per month, on a particular date, namely, the 15th April 1915, mentioned as the date on which the cause of action is said to have arisen, vide paragraph 8 of the plaint. The burden of proving the allegations must, on general grounds, rest upon the plaintiff. The sale deed is a registered document and recites that the consideration of the deed was paid. This, of course, does not help either side, because according to the case of both the parties at the time when the recital was made the consideration did not pass, and it was, of course, open to the plaintiff to show that the entire consideration money was not paid [Sah Lal Chand v. Indarjit 22 A. 370; 4 C. W. N. 485; 2 Bom. L. R. 553; 27 I. A. 93; 7 Sar. P. C. J. 702; 9 Ind. Dec. (n. s.) 1281 (P. C.)]. Even if the defendant had to prove the passing of the consideration, the subsequent events, namely, the vended property having been given in possession to (he defendant as well as the sale certificate and the sale-deed in question, shifted the burden upon I he plaintiff to show that he parted with the land and the title-deer's without having received the entire consideration money. The attempt of the plaintiff to show that the sale deed had passed surreptitiously to the defendant has failed, and hence no onus lay at any stage or was ever shifted, upon the defendant. From the case of Kaleepershad Tewaree v. Rajah Sahib Pershad Sein 12 M. I. A. 282; 2 B. L. R. P. C. 111; 12 W. R.: P. C. 6; 2 Sar. P. C. J. 429; 2 Suth. P. C. J. 225; 20 E. R. 345 it may be easily deduced that it is too wide to affirm that the mere denial of the receipt of the consideration stated is in all cases sufficient to cast upon the party relying on the instrument the burden of proving the payment of that consideration, and that the plaintiff who wishes to set aside a contract under which there has been possession and enjoyment, and of which there has been performance, has the burden upon him of establishing at least a good prima facie title to the relief which he seeks. I, therefore, hold that the burden in this case of establishing the allegations set up in the plaint rested upon the plaintiff. According to the finding of the Judge the plaintiff has not proved his case.
4. As to the presumption raised by the Court, it was competent to the Court below to presume that the consideration money had been paid when the land was parted with and the title-deeds were made over to the defendant. This is a presumption arising from the ordinary course of human conduct in transacting worldly business. The question of presumption is a matter of inference from certain facts, and when once the Court draws a presumption it becomes a question of fact, and I do not think that it is competent for this Court to hold that the Judge was wrong in law in raising the presumption that he did in favour of the plaintiff.
5. The result is that the judgment of the Court below is upheld and the appeal is dismissed with costs.
Roe, J.
6. I agree.