Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.369 of 2009 ====================================================== Dev Chandra Mahto, son of Mohan Mahto, resident of village-Bahilbara@ Garha, P.S. Runni Saidpur, Sub Division-Sitamarhi West, District- Sitamarhi. Versus 1. Nirsani Devi, wife of Kuldip Mahto, resident of village and P.S.- .... .... Appellant/s Parsauni, District-Sitamarhi. 2. Upendra Mahto, son of late Mohan Mahto. 3. Parmeshwar Mahto, son of late Mohan Mahto. 4. Smt. Mithilesh Devi, daughter of late Mohan Mahto. 5. Smt. Madhlesh Devi, daughter of late Mohan Mahto respondent 2 to 5 resident of village Bahilbara @ Garha, P.S.-Runni Saidpur, Sub- Division Sitamarhi West, District-Sitamarhi. .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. V.R.P.Singh For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE VIJAYENDRA NATH ORAL ORDER 7 04-03-2013
Legal Reasoning
Heard Mr. V.R.P. Singh, the learned counsel for the appellant. 2. The defendant is the appellant in this second appeal against the judgment and decree of affirmance by the appellate court below upholding the decree of the suit in favour of the plaintiffs. The plaintiffs filed the suit assailing the two gift deeds dated 08.12.1978 and 27.05.1982 executed by Bhola Mahto and Most. Manchaniya Devi respectively in favour of the defendant no. 1 as forged, illegal, null and void and not binding upon the Patna High Court SA No.369 of 2009 (7) dt.04-03-2013 2 plaintiffs. 3. The factual matrix of the case would unveil that the plaintiffs are the daughters of Bhola Mahto and Manchaniya Devi. The land subject matter of two gift deeds dated 08.12.1978 and 27.05.1982 admittedly belonged to Bhola Mahto and Manchaniya Devi. The plaintiffs’ grounds of assail of the gift deed dated 08.12.1978 alleged to have been executed by Bhola Mahto are forgery and impersonation. The plaintiffs further assailed the gift deed dated 27.05.1982 by Manchaniya Devi on the ground that no permission was obtained as required under the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to as ‘Consolidation Act’) before execution of the said gift deed. The defendant no. 1 resisted the prayer of the plaintiffs and asserted that the two gift deeds in his favour by Bhola Mahto and Manchaniya Devi have been legally and validly executed by them on the basis of which he has acquired title and possession over the gifted properties. 4. Both the courts below, on consideration of pleadings and evidence of the parties, have reached to the concurrent findings of fact that the deed of gift dated 08.12.1978 (Ext. A) alleged to have been executed by Bhola Mahto in favour of the defendant no. 1, does not bear the LTI of Bhola Mahto. The courts Patna High Court SA No.369 of 2009 (7) dt.04-03-2013 3 below have also taken into notice that the attestation of the said gift deed also could not be established and even one attesting witness who has been examined in the suit has not accepted the fact of attestation. The courts below have also found that the gift deed dated 08.12.1978 includes the purchased land of the plaintiff no. 1 and no valid reason could be furnished by the defendant- appellant for the inclusion of the land of the plaintiff no.1 in the gift deed. With regard to the deed of gift dated 27.05.1982 (Ext. A/1) alleged to have been executed by Manchaniya Devi, the courts have come to the finding that no permission as required in the Consolidation Act has been obtained before the execution of the gift deed as such the same is void. The suit has, therefore, been decreed and the appeal therefore, has been dismissed. 5. Mr. Singh, the learned counsel for the appellant has submitted that the finding with regard to the gift deed dated 27.05.1982 executed by Manchaniya Devi is not supported by the evidence on record inasmuch as there is no evidence on behalf of the plaintiffs to establish that on the date when the said deed was executed the publication of the register of land and statement of principles under Section 9 of the Consolidation Act had taken place. It has been contended that the necessity for permission would arise, from the wordings of Section 5 of the Consolidation Patna High Court SA No.369 of 2009 (7) dt.04-03-2013 4 Act only when the register of lands and statement of principles have been published. It has been pointed out by Mr. Singh that in the written statement the defendant has categorically stated that there was no necessity for permission on the date when the deed of gift by Manchaniya Devi was executed. The learned counsel further submitted that the findings recorded by the courts below on the validity of the gift deed dated 08.12.1978 (Ext.A) executed by Bhola Mahto are also not supported by the evidence on record. 6. From the perusal of the judgments of both the courts below and after considering the submissions of the learned counsel for the appellant, it is pellucid that the plaintiffs who are daughters of Bhola Mahto and Manchaniya Devi have assailed the two gift deeds (Ext. A and A/1) executed by Bhola Mahto and Manchaniya Devi in favour of the defendant. Both the parties have led their evidence and the handwriting experts have also been examined by both sides in order to establish their case with regard to the gift deeds. After scrutinizing the evidence of the rival parties, both the courts below have concluded that the LTI of Bhola Mahto on the gift deed (Ext. A) is not genuine. The other facts like inclusion of the lands of the plaintiff no. 1 in the deed of gift (Ext. A) have also been taken into consideration before reaching to the finding of fact that the gift deed (Ext. A) is forged and fabricated document. The Patna High Court SA No.369 of 2009 (7) dt.04-03-2013 5 said finding has been recorded on the basis of the appreciation of the evidence on record and I do not find any perversity in the same. 7. With regard to the submission emphasizing the necessity for permission under the Consolidation Act before the execution of the gift deed (Ext. A/1) by Manchaniya Devi, it is manifest that the defendant has accepted that the consolidation proceeding in the area where the lands subject matter of the gift deed (Ext. A/1) were situated was going on. It is the case of the defendant himself that no permission was required under the Consolidation Act on the date when the gift deed (Ext. A/1) was executed. It does not appear from the judgments of both the courts below that the defendant has adduced any evidence to support this specific pleading that no permission was required. The submission by the learned counsel for the appellant is that the burden of proof was on the plaintiff to establish the fact that the permission was required. However this submission appears to have been made ignoring the provisions of Sections 10,102 and 103 of the Evidence Act wherein the distinction between burden of proof by law and pleading and burden of proof as a matter of adducing evidence has been underlined. No doubt, the burden of proof by pleading always lies on the plaintiff but the position will not Patna High Court SA No.369 of 2009 (7) dt.04-03-2013 6 remain the same in a case where certain fact is admitted by the defendant in which case the burden of proof by adducing evidence (onus probandi) will shift to the defendant to establish the exemption from the impact of the admitted fact. It is thus plain and patent that after admitting the fact that the consolidation proceeding was going on, it was for the defendant to establish by evidence that even in spite of the said fact there was no need for permission as required under Section 5 of the Consolidation Act before the execution of the gift deed in question and the same is not vitiated for want of permission as asserted by the plaintiff. 8. The issues arising between the parties have now been concluded by the concurrent findings of fact. I do not find any substantial question of law arising for consideration in this appeal, which is, accordingly, dismissed. Devendra/- (Vijayendra Nath, J)