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2009 (1) UAD 271
SUPREME COURT OF INDIA
Hon’ble Mr. Justice Altamas Kabir and Hon’ble Mr. Justice Markandey Katju
Civil Appeal No. 6103 of 2008
VANIYANKANDY BHASKARAN – Appellant
Versus
MOOLIYIL PADINHJAREKANDY SHEELA – Respondent
Decided on : 14.10.2008
(B) Indian Evidence Act, 1872, Sec. 103 — The Burden of proof — Agreement formed basis of suit — This agreement disputed by the defendants as manufactured — The burden of proving its genuineness lies on the person claiming under the same and not on the person alleging the same to be manufactured — Shifting the burden to the person disputing the genuineness of the same and alleged it to be manufactured, to prove the same to be manufactured — Not proper being in contravention of Section 103 of the Indian Evidence Act. (Paras 6, 16)
¼v½ nhokuh izfd;k lafgrk] 1908] vkns'k 21] fu;e 101] 103] 104 & fu;e 104 vkns'k 21 CPC dk ykxw fd;k tkuk & bl ds fy, vko';d 'krZ ;g gS fd fu;e 101 o fu;e 103 ds vUrxZr ikfjr fd;k tkus okyk vkns'k ml okn ds fu.kZ; ls izHkkfor gksxk tks fd fu;e 101@103 CPC esa vkns'k ikl djkus dh dk;Zokgh izkjEHk fd;s tkus dh frfFk esa yfEcr Fkk & iz'uxr okn mDr vkns'k dh izfd;k ds izkjEHk gksus ds ckn nk;j fd;k x;k Fkk & fu;e 104 vkns'k 21 CPC ykxw ugha gksrkA ¼izLrj 14½
¼c½ Hkkjrh; lk{; vf/kfu;e] 1872] /kkjk&103 & lcwr dk Hkkj & okn dk vk/kkj bdjkjukes dks cuk;k x;k & izfroknhx.kksa }kjk bdjkjukes dks fooknxzLr ¼cukoVh½ crk;k x;k & bl dh lR;rk dks lkfcr djus dk Hkkj ml O;fDr ij gS tks bls is'k dj jgk gS uk fd ml O;fDr ij tks bls >wBk ;k cukoVh crk jgk gS & bl dh lR;rk dks fookfnr crkus okys ij lkfcr djus dk Hkkj LFkkukUrfjr djuk vkSj mls cukoVh lkfcr fd;k tkuk mfpr ugha Fkk tks /kkjk&103 Hkkjrh; lk{; vf/kfu;e ds foijhr gSA ¼izLrj 6] 16½
Altamas Kabir, J. — Leave granted.
2. An interesting question regarding the interpretation of Rule 104 of Order 21 of the Code of Civil Procedure in relation to rule 101 thereof has been raised by Mr. M.K.S. Menon, learned counsel for the appellant. In order to appreciate his submissions, it is necessary to briefly set out the facts of the case giving rise to such question.
3. The appellant, who was the original owner of the suit property along with the building erected thereupon, allegedly took a loan of Rs. 50,000/- from the husband of the respondent No. 1 and under the guise of security for the loan the appellant was made to execute a conveyance in respect of the suit property measuring 88 cents in favour of the respondent No. 1 on 1st October, 1986. According to the appellant, on the same day his wife was also made to sign on a blank paper, which was later on converted into a Rent Deed. It also appears that on account of another loan taken by the appellant from the Syndicate Bank, OS No. 176 of 1982 was instituted by the Bank against the appellant for recovery of the amounts due, before the Subordinate Court, Thalasherry, in which the suit property was attached.
4. In 1990, OS 239 of 1990, filed by the respondent No. 1 before the Subordinate Court, Thalasherry, for recovery of the suit property on the strength of the conveyance executed in her favour, was decreed. An appeal was preferred therefrom by the appellant before the High Court, being AS No. 609 of 1992, and during the pendency of the appeal, the respondent No. 1 filed RCP No. 292 of 1993 against the wife of the appellant under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, on the ground of default in payment of rent for the suit building since August, 1989. An additional ground was also taken by the respondent No. 1 claiming that the building was also required by her for her own use and occupation.
5. The said Rent Control Petition was dismissed by the Rent Control Court on the ground that the title in relation to the building was in dispute in OS No. 239 of 1990. An appeal, being RCA No. 197 of 1994, filed by the respondent No. 1 before the Rent Control Appellate Authority from the order of the Rent Control Court, was allowed and eviction was ordered. The wife of the appellant thereupon filed a revision petition before the High Court, being CRP No. 2532 of 1996, which was dismissed on 2nd April 2004, by a common judgment delivered in AS No. 609 of 1992 and CRP No. 2532 of 1996, whereby the title of the appellant in respect of the suit property was upheld and the order passed in RCA No. 197 of 1994 was confirmed. The appellant’s wife was given two months’ time to pay the arrears of rent, failing which the respondent was given leave to take steps for execution of the order. Since the arrears were not paid within the stipulated time, the respondent No. 1 filed Execution Proceedings No. 407 of 2004 seeking the appellant’s eviction and delivery of possession of the suit premises. The appellant’s wife entered appearance before the Executing Court, which ordered delivery of possession of the suit premises to the respondent on 2nd April, 2005. Since such delivery was resisted by the appellant, the Court ordered delivery to be effected with Police help on 18th July, 2005. Thereafter, attempts were made to settle the matter and the respondent also agreed to withdraw the execution proceedings, the same was never withdrawn, which compelled the appellant to file OS No. 181 of 2005 and also for an injunction to prevent the eviction of the appellant in Execution Proceedings No. 497 of 2004 in RCP No. 292 of 1993. Inasmuch as, such prayer for injunction was allowed by the learned Subordinate Judge, the respondent challenged the same before the High Court.
6. On behalf of the respondent herein, who was the appellant before the High Court, it was contended that when her title to the scheduled property and the building had been uphe
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