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Kali Charan Basak Vs. Amar Chand Das - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata
Decided On
Judge
Reported in41Ind.Cas.44
AppellantKali Charan Basak
RespondentAmar Chand Das
Cases ReferredMakund v. Bahori Lal
Excerpt:
mortgage bond, suit on - recital, denial of truth of--burden of proof. - .....rs. 50 (rupees fifty) from your tahabil.' both the plaintiff and the defendant in this case gave evidence, and the district judge rightly held as to the party upon whom the onus of proof lay. going further, he does not accept the defendant's ease, and accordingly he decreed the suit. the decision in the allahabad case to which we have been referred makund v. bahori lal (1)] deals with a different set of circumstances, for there evidence who given only on behalf of the plaintiff, and the defendant's evidence was not taken. the high court there reversed the decision, because the effect of the judgment under appeal was to decree a suit in the face of the evidence actually given, and notwithstanding the fast that the defendant on whom the onus of proof lay had not been given an.....
Judgment:

John Woodroffe, J.

1. The learned Pleader who appears for the respondent states that he is unable to support Mr. Justice Roe's judgment on the question of onus as stated by him. The onus was clearly on the defendant to prove that the bond which he signed contained a recital which was not in accordance with the facts, for that bond states: 'I have borrowed Rs. 50 (Rupees fifty) from your tahabil.' Both the plaintiff and the defendant in this case gave evidence, and the District Judge rightly held as to the party upon whom the onus of proof lay. Going further, he does not accept the defendant's ease, and accordingly he decreed the suit. The decision in the Allahabad case to which we have been referred Makund v. Bahori Lal (1)] deals with a different set of circumstances, for there evidence who given only on behalf of the plaintiff, and the defendant's evidence was not taken. The High Court there reversed the decision, because the effect of the judgment under appeal was to decree a suit in the face of the evidence actually given, and notwithstanding the fast that the defendant on whom the onus of proof lay had not been given an Opportunity of establishing his1 defence. That is not the case here, where, as I have said, both parties gave their evidence and on that evidence the Judge accepted the plaintiff's story as being a true one.

2. The appeal, therefore, must be decreed, the judgment and decree of the District Judge restored, and the respondent must pay the costs of the hearing before us and before Mr. Justice Roe.

Mookerjee, J.

3. I agree.


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