LAKHAN SAO (DECEASED) NOW THROUGH HIS LEGAL HEIRS versus DHARAMU CHAUDHARY

Citation: [1991] 1 S.C.R. 544 · Decided: 20-02-1991 · Supreme Court of India · Bench: B.C. RAY · Disposal: Dismissed

Judgment (excerpt)

A 
LAKHAN SAO (DECEASED) NOW THROUGH 
HIS LEGAL HEIRS 
V. 
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DHARAMU CHAUDHARY 
FEBRUARY 20, 1991 
B 
[B.C. RAY AND M. FATHIMA BEEVI, JJ.] 
Code of Civil Procedure, 1908: Suit for declaration of title and 
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possession-Burden to prove title is on the plaintiff-But when both 
plaintiff and defendant tender evidence the question of burden of proof 
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is not important-Court can consider the entire evidence on record. 
The respondent-plaintiff instituted a suit against the appellant-
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defendant for declaration of title and possession of the suit properties on 
the basis of a sale-deed date<1 February 10, 1964 executed in his favour 
by Mrs. T. The appellant-defendant also asserted his title and possession y 
D under an earlier deed dated February 14, 1959 executed by Mrs.Tin his 
favour. The respondent contended that the deed of 1959 in favour of the 
defendant was sham and without any consideration. The Trial Court 
decreed the suit and the decree was confirmed in appeal. The High 
Court set aside the decree and remanded the case to the first appellate 
court stating that the burden to prove that the 1959 deed was sham was 
E on the plaintiff. After the remand, the first appellate court considered 
the evidence adduced by both sides and upheld the plaintiff's title and 
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confirmed the decree of the trial court. The second appeal filed against 
the judgment was dismissed in limine by the High Court. 
In defendant's appeal to this court it was contended that inspite of 
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specific direction by the High Court in the order of remand that the 
burden to prove that 1959 deed was sham was on the plaintiff, no fresh 
evidence was tendered by the plaintiff to discharge the burden and the ~ 
appellate court proceeded to examine the evidence tendered by the 
defendant and rejected the same; hence the appellate court committed 
an error in disposing the appeal which gave rise to a substantial ques-
G 
tion of law and the High Court failed to exercise its jurisdiction under 
Section 100 CPC in dismissing the second appeal in limine. 
Dismissing the appeal, this Court, 
HELD: 1. It is always open to the defendant not to lead any evi- '---{" 
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dence where the onus is upon the plaintiff but after having gone into 
544 
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L. SAO v. D. CHAUDHARY [FATHIMA BEEVI, J.] 
545 
.+ evidence, he cannot ·ask the court not to look at and act on it. The 
· question of burden of proof at the end of case when both parties have 
tendered evidence is not of any great importance and the court has to 
come to a decision on a consideration of all materials. [515H; 516A] 
2. In the suit based on title the burden was undoubtedly on the 
plaintiff to prove such title. When the plaintiff assailed the earlier deed 
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executed by his vendor in respect of the same land it was for him to 
,establish that it was a Farzi Keba/a and sham transaction unsupported 
by consideration. But in examining the question whether the plaintiff 
had succeeded in proving the negative fact it was open to the court to 
consider the entire evidence on record when both the parties have 
tendered evidence and no part of the evidence could be left out. The 
plaintiff proceeded on the basis that the deed executed by his vendor in 
1959 was sham unsupported by consideration and it never came into 
y: operation thereby pleading the necessary facts in support of his title. 
Evidence was tendered to prove what has alleged. To counter the claim, 
the defendants have asserted that the consideration was paid under the 
deed and counter evidence was tendered. The entire evidence was fully 
appreciated by the Appellate Court and the findings recorded. Thus the 
Appellate Court recorded definite findings on a clear analysis of the 
entire evidence and the imdings are fully supported by the evidence on 
record. Therefore, no error had been committed by the learned Judge 
)--. in his approach. [597C-D; 599B-C] 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1440 
of 1986. 
From the Judgment and Order dated 30.11.1985 of the Patna 
High court in Second Appeal No. 129 of 1983. 
Ranjan Diwvedi, A.N. Bardiar and R.S. Sharma for the 
Appellants. 
D. Goburdhan and D .N. Goburdhan for the Respondent. 
The Judgment of the Court was delivered by 
r· 
FATHIMA BEEVI, J. The plaintiff-respondent instituted the 
suit for possession of the land in Khata No. 19 in village Gauripur in 
1968 claiming title under Ex. 2 sale deed dated February 10, 1964 
executed in his favour by Mst. Tetri, the

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