Unknown vs Kuar Basant Narain Singh @ Basant ...
2021 Latest Caselaw 4316 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
            S. A. No. 93 of 1994

1(a) Samu Devi
1(b) Paras Nath Sahu
1(c) Surja Sahu
1(d) Dineshwar Sahu
1(e) Raju Kumar Sahu
1(f) Balram Kumar
1(g) Sabita Devi
1(h) Babita Devi
2(B)(i) Sushila Devi
2(B)(ii) Bharti Kumari
2(B)(iii) Birju Kumar
2(B)(iv) Suraj Kumar
2(B)(v) Sujit Kumar
2(iii) Charan Sahu @ Charan Sao
2(iv) Nakul Sahu @ Nakul Sao
                                            ....    .... Appellants
                      Versus
Kuar Basant Narain Singh @ Basant Prasad ....       ..... Respondents
                            ------

CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

------

For the Appellants       : M/s S.K. Sharma & S.K. Manjhi, Advocates
For the Respondents      : Mr. Bhaiya Vishwajeet Kumar, Advocate

C.A.V. ON 16.11.2021                 PRONOUNCED ON 22 / 11 /2021

1. The instant appeal has been preferred by the defendants-

appellants against the judgment and decree passed by the 5th Additional

Judicial Commissioner, Ranchi in Title Appeal No. 06 of 1991 confirming

the judgment and decree dated 30.11.1990 passed by the Sub-Judge-V,

Ranchi decreeing Title Suit No. 108 of 1988.

2. The brief facts leading to the present appeal is that the plaintiff-

respondent filed suit for specific performance of contract with respect to

an agreement for sale of 4 Kathas of land in Plot No. 2101 of Khata No.

75 regarding which agreement for sale was executed on 02.03.1985 on

receipt of an advance of Rs.15,000/- per katha against a total price of

Rs.40,000/- at the rate of Rs.10,000/- per katha by defendants Ganga Sao

and Sadhu Sao, which was their ancestral property and they had acquired

their separate share and came in separate possession on partition. The

defendants out of their share had sold 1/4th kathas of Plot No.2101 of

aforesaid Khata No.75 to Smt. Manju Singh by a registered deed of sale

in 16.7.1985 and made reference to the partition in the deed of sale. In

pursuance to the agreement, possession was given to the plaintiffs and the

defendants agreed to execute the sale deed within two months after

obtaining permission from the competent authority under Urban Land

Ceiling Act. It is further averred on behalf of the plaintiffs that the

defendants did not abide by the agreement and consequently legal notice

was served on the defendants on 25.11.1986.

3. The defendants appeared and contested the suit mainly on the

ground that the suit was bad for non-joinder of necessary parties and

according to them unless Bhola Sahu, Dahru Sahu and all sons of Aman

Sahu were made parties to the suit, it could not proceed, as being sons of

Sadhu Sao and Ganga Sao who were the members of Hindu Joint Family

were necessary parties there had been no partition. All the heirs of the

recorded tenant Jagarnath Mahto jointly held and processed the suit land

and other land of Khata No. 75. Further plea of the defendants is that they

are illiterate persons and they have been subjected to fraud, coercion and

misrepresentation by Manju Singh and her men one of whom is the

plaintiff and without getting the alleged deed dated 16.07.1985 read over

and explained to the defendants obtained their signatures at Calcutta under

coercion. In paragraph-12 of the written statement there is denial of

having entered into a sale for 4 kathas of Plot No. 2101 under Khata No.

75 to the plaintiffs but in the same breath it has been asserted that if there

is any such agreement, the same is illegal, null and void and not binding

on the defendants. It has also been denied that the plaintiffs have been put

in possession.

4. On the basis of the pleadings of the parties, the following issues

were framed and the suit was decreed in favour of the plaintiff on contest.

Defendants Ganga Sao and Sadhu Sao preferred the appeal and the

judgment of the trial court was affirmed and the appeal was dismissed

5. The second appeal has been admitted on the following

substantial question of law:

"Whether the Court of appeal below has erred in law in placing the

burden on the defendants to prove is genuineness of the signatures of

the defendants on the alleged agreement?"

6. The agreement of sale dated 02.03.1985 executed by Sadho

Sao and Ganga Sao in favour of Kumar Basant Naryan @ Basant Prasad

with respect to the suit land, witnessed by Hriday Narayan Singh, scribe

Krishna Narayan Prasad and Prabhu Nath Ojha, is the foundation of the

present case filed for the specific performance of contract. This document

has been proved on behalf of plaintiffs by Hriday Narayan Singh-P.W.2

which has marked as Exhibit-1 and identified by PW 7. It is argued that

there are inherent contradictions in cross-examination of P.Ws. 2 and PW

7 Krishna Narayan Prasad, which suggests that the defendants did not sign

and execute the agreement dated 02.03.1985. Although Prabhu Nath Ojha

had identified the signatures of the original defendants namely, Sadhu Sao

and Ganga Sao, but he was not examined for proving their signatures. The

deposition of Prabhu Nath Ojha and Ram Gulam Rai made in Misc. Case

No. 1486/1986 has been proved on behalf of the defendants and been

marked as Ext. B and B/1 wherein, the place of agreement has been

disputed and has been stated that it was made in the Sirista of Munshi

Krishna Prasad which is corroborated from paragraph-3 of the cross-

examination of P.W.2-Hridya Narayan Singh. From the deposition of

P.W.7-Krishna Narayan Prasad in paragraphs-5, 6 and 7 it would be

evident that the agreement had not been executed by the defendants.

Against this background, a specific denial of the execution of the

agreement of sale it was incumbent on the part of the plaintiffs to prove

the signatures of the defendants on the agreement of sale by expert

witness.

7. It is asserted that burden of proof was on the plaintiff to prove

that the agreement of sale was validly signed by the defendants. Reliance

has been placed in the case of Anil Rishi Vs. Guru Bhakat Singh as

reported in 2006 AIR SCW 2392 in which it has been held that initial

burden proof lies on the plaintiffs in view of Section 101 of the Evidence

Act. It is further argued that instead of getting the signatures examined by

the expert, Court itself examined the same and held it to be that of the

defendants. It is submitted in this context that the Hon'ble Apex Court in

AIR 1979 SC 14 State of Delhi Administration Vs Paliram has held that it

was not advisable that Judge should take upon himself task of comparing

the admitted writing with disputed one to find out as to whether two agree

with each other, and the prudent course is to obtain the opinion and

assistance of experts.

8. It is contended that burden of proof proving the document was

on the plaintiffs-respondents and the finding of the learned court below of

shifting the burden to proof the ingenuineness on the defendants was not

in accordance with the settled principles of the Evidence Act.

An alternative prayer has been made to set aside judgment and decree

and the case be remanded to the court below for examination for

verification of the signatures by an expert.

9. It is submitted by the learned counsel appearing on behalf of the

respondents that there is concurrent finding of fact recorded by the learned

trial court as well as by the first court of appeal in which on the basis of

cogent evidence and sufficient materials on record it has been held that the

agreement in question was genuinely executed by Ganga Sao and Sadhu

Sao in favour of the plaintiff who had also entered into possession of the

disputed land in pursuance of the agreement. It is further argued that the

finding of fact cannot be unsettled in second appeal and the appellate

jurisdiction is to be exercised at this stage confined to the substantial

question of law framed for hearing the appeal.

10. On the burden to proof the agreement, it is submitted that

plaintiff by adducing evidence of the specific performance of agreement,

which has been duly proved by PW2-Hriday Narayan Singh and P.W.7

and marked as Ext.-1, the plaintiff has discharged the burden to prove

agreement of sale. The endorsement of payment of advance to defendants

Ganga Sao and Sadhu Sao have also been marked as Ext.2 and 2/A

respectively. PW2 has also proved the signature and endorsement on the

deed of agreement which has been marked as Ext.2/B. The scribe of deed

namely Krishna Narayan Prasad has been examined as P.W. 7 and he

admitted that he had scribed the deed on the stated version of the

defendants, who executed the agreement by putting their signatures on

receipt part of the consideration amount. In this manner the plaintiffs

discharged the onus to prove the agreement of sale. It is further argued

that the defendant no. 1 Ganga Sao who has been examined as DW5 has

admitted in pargraph-12 that he along with Sadhu Sao had gone to

Calcutta and had been lodged there in a hotel by Basant Narayan. It is

further stated that their signatures had forcibly been taken but after

returning from there he did not report the matter to the police or filed a

complaint case regarding it.

11. The very short question that falls for consideration in the

present appeal is whether the plaintiff had discharged the onus to prove

the agreement of sale so that the onus shifted to the defendants to

controvert the genuineness of documents?

12. In order to fully appreciate on whom the burden of proof lies, it

will be desirable to set out Section 101, 102 and 103 of the Evidence Act

which reads as under:

"S.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 exists.

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 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.

S.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 existence, unless it is provided by any law that the proof of that fact shall lie on any particular person."

Section 101 attempts to define burden of proof and it attempts to say

on which party the burden of proof lies whereas Section 102 puts it in

negative terms. The main principle governing the burden of proof is that

the party who makes a legal claim must prove the operative legal facts for

that claim, i.e. the facts that according to law are originally sufficient

reasons for the claim. In theory, the term means two kinds of burden: the

burden of production of evidence and the burden of persuasion which is

an obligation that remains on a single party for the duration of court

proceedings. The burden of persuasion is different from the evidential

burden or burden of production of evidence which is an obligation which

may shift between the parties over the course of the hearing or trial. It is in

this context that the Hon'ble Apex Court in Raghavamma case held that

burden of proof lies upon the persons, as to prove a fact and it never shifts

but the onus of proof shifts. It has been held in Lakshmana Vs.

Venkateswarlu, AIR 1949 PC 278 that initially burden of proving a

prima facie case in his favour is cast on the plaintiffs; when he gives such

evidence as will support a prima facie case, the onus shifts to the

defendants to adduce rebutting the evidence to meet the case made out by

the plaintiffs. As the case continues to develop, the onus may shift back

again to the plaintiffs.

13. In view of the fact that plaintiff had discharged the initial

burden to prove the agreement the onus shifted on the defendants to

controvert the genuineness of the agreement of sale. Against this

background fact, I do not find any illegality in the observation of the trial

court that burden of proof was on the defendant to prove the

ingenuineness of their signature. I find merit in the submission advanced

on behalf of the respondents that Ganga Sao, one of the signatories and

defendant no. 1, in his own evidence, as discussed above, has not denied

having signed over the document. It has been stated by him that he was

forced to sign over the document. Therefore, there was no occasion or

requirement for the plaintiffs to get it further examined by any expert. On

the contrary, it has been admitted by defendant in his evidence that his

signature was obtained by coercion but he had not lodged any complaint

or report in this regard. Pleading is no evidence and when agreement had

been brought on record and proved, mere taking shifting defence of

coercion in getting the signature and in the same breath denying it in WS

by the Defendant was not sufficient, and it was incumbent on their part to

lead evidence to support their specific defence. Having failed to do so,

they failed to discharge the onus on their part to dispute the genuineness

of the agreement of sale and proof that it was obtained either by coercion

or that agreement did not bear their signature.

14. Under the aforesaid facts and circumstances, the judgment and

decree passed by the Learned Courts below is affirmed and the appeal is

dismissed.

15. Consequently, I.A. No. 2575 of 2021 stands disposed of.

                                         (Gautam Kumar Choudhary, J.)
Jharkhand High Court, Ranchi
Dated the 22nd November, 2021
NAFR /    AKT