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GAUHATI HIGH COURT
Suman Shyam, J.
Birendra Sankar Sanyal & Ors. —Appellants
versus
Dinesh Chandra Sarma —Respondent
RSA No.90 of 2009
Decided on 9.9.2015
Counsel for the Parties:
For the Appellants:Mr. D. Mazumdar, Sr. Advocate
For the Respondent:Mr. P.K. Kalita, Advocate
IMPORTANT POINT
Once plaintiff side succeeds in prima facie establishing his pleaded case by leading evidence, onus will then shift upon defendant side to lead evidence so as to disprove case.
Headnote:Evidence Act, 1872—Sections 101 and 102—Burden of proof—Burden of proof cast under Sections 101 and 102 of Evidence Act, 1872 is persuasive burden or Onus Probandi—Persuasive burden to prove and establish case always lies upon plaintiff and said burden never shifts upon defendant—Once plaintiff side succeeds in prima facie establishing his pleaded case by leading evidence, onus will then shift upon defendant side to lead evidence so as to disprove case—Parties may also have to discharge burden of establishing admissibility of evidence by leading evidence in respect thereof—Initial burden to establish basic allegations made in plaint constituting foundational facts, regardless of whether such assertion is couched in affirmative or in negative, would lie upon plaintiff and failure to discharge said burden must lead to dismissal of suit. (Para 24)
Result: Appeal dismissed.
Suman Shyam, J.—This second appeal has been preferred against the judgment and decree dated 19-03-2009 passed by the learned Addl. District and Sessions Judge (FTC), Kamrup, Guwahati in Title Appeal No. 11/2007 allowing the appeal, thereby, setting aside the judgment and decree dated 30-06-2007 passed by the learned Civil Judge (Sr. Div.) No. 3, Kamrup, Guwahati in Title Suit No. 159/2005.
2. The plaintiffs’ case in brief, as projected in the plaint, is that land measuring 4B-10L covered by Dag No. 2017 of KP Patta No. 253 of Village- Betkuchi under Beltola Mouza originally belonged to one Shyama Kachari. The plaintiffs had jointly purchased the said plot of land from Shyama Kachari by means of a registered deed of purchase executed in the year 1967 whereafter, their names were also jointly mutated in respect of the said plot of land vide order dated 04-03-1970 passed by the learned SDC in connection with Mutation Case No. 1493/1966-67. Accordingly, the revenue records were corrected and the names of the plaintiffs were mutated way back in the year 1972. The aforesaid plot of land measuring 4B-10L was a low laying land and the plaintiffs used to cultivate paddy thereupon without any hindrance or obstruction from any quarters. The plaintiffs have been possessing the said plot of land by paying land revenue. On 26-02-2004 the plaintiff No. 1 visited the office of the Mouzadar, Beltola Mouza to pay the land revenue in respect of the suit land for the year 2004 but to his utter shock and dismay, the plaintiff No. 1 could come to know from the records that the plaintiffs were no longer the recorded owners of the suit land and that the name of one Dinesh Chandra Sarma, i.e. the defendant herein, had been recorded as the owner of the suit land in place of the plaintiffs. It is also the case of the plaintiffs that immediately having come to know about the aforesaid fact the plaintiffs had engaged an Advocate to carryout search in the land records whereafter, the plaintiffs could go through the copy of the jamabandi of the suit patta maintained in the office of the Settlement Officer and thereafter, could come to know that the names of the plaintiffs had been deleted and in their place the name of the defendant had been recorded on the basis of the order dated 12-07-1993 passed in Mutation Case No. 5952/92-93. It has been pleaded in the plaint that the plaintiffs could come to know about the aforesaid illegal entry of the name of the defendant in the revenue records only on 19-3-2004 upon inspection of the records.
3. The plaintiffs have further stated in the plaint that they had filed an application on 24 03-2004 before the Settlement Officer for cancelation of the order dated 17-02-1993 passed in Mutation Case No. 5952/1992-93 granting mutation in favour of the defendant in respect of the suit land which was registered as Misc. Case No. 62/2003-04. The defendant had filed written objection whereby he had submitted a copy of the agreement for sale dated 05-02-1982, copy of the registered deed of sale dated 05-05-1993 as well as a copy of the mutation order dated 12-07-1993 claiming his title and possession over the suit land thereby praying for dismissal of the application filed by the plaintiffs. The plaintiffs’ pleaded stand is that although an agreement for sale had been executed by the plaintiff No. 1 on 05-02-1982 for selling the suit land to the defendant, yet, save and except making a payment of Rs. 7,000/- as advance amount the defendant had failed to make payment of the balance amount within the period of four months as stipulated in the said agreement. As a result of the default in making payment of the balance amount by the defendant, the agreement for sale stood cancelled and the possession of the land, which was earlier delivered to the defendant, stood automatically restored to the plaintiffs. It has also been pleaded that the plaintiffs had neither executed the registered deed of sale dated 05-05-1993 in favour
