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Shabed Ali Mia Vs. Mahammad Fazlar Rahaman Choudhury - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in57Ind.Cas.954
AppellantShabed Ali Mia
RespondentMahammad Fazlar Rahaman Choudhury
Excerpt:
sale by registered deed - recital in deed that purchase-money has been paid--suit to recover purchase-money--burden of proof. - .....suit no. 4 was decreed and suit no. 5 was dismissed. on appeal to the district court the learned district judge has reversed the findings arrived at by the subordinate judge and has dismissed suit no. 4 and has decreed suit no. 5.2. the contentions of the appellant before us are, first, that the learned district judge has misplaced the burden of proof, and secondly, that he has omitted to take into consideration a document, exhibit 2, on which reliance was placed in the court of first instance. both these grounds, it appears, are founded upon errors of fact. in the registered conveyance the plaintiff acknowledged receipt of the consideration in full. the learned district judge has, therefore, placed upon him the onus of proof that that recital was incorrect. the appellant says that in.....
Judgment:

1. These two connected appeals arise out of two analogous suits. In the first suit which was numbered 4, the plaintiff Sabed Ali sought to recover from the defendant Fazlur Rahaman Rs. 2,200 as the balance of consideration money for land sold under a certain conveyance by the plaintiff to the defendant. In Suit No. 5 Fazlur Rahaman as plaintiff sought for a declaration that a conveyance executed by him of 4 annas in the said land was void on the ground of fraud and want of consideration. In the Court of first instance Suit No. 4 was decreed and Suit No. 5 was dismissed. On appeal to the District Court the learned District Judge has reversed the findings arrived at by the Subordinate Judge and has dismissed Suit No. 4 and has decreed Suit No. 5.

2. The contentions of the appellant before us are, first, that the learned District Judge has misplaced the burden of proof, and secondly, that he has omitted to take into consideration a document, Exhibit 2, on which reliance was placed in the Court of first instance. Both these grounds, it appears, are founded upon errors of fact. In the registered conveyance the plaintiff acknowledged receipt of the consideration in full. The learned District Judge has, therefore, placed upon him the onus of proof that that recital was incorrect. The appellant says that in his written statement the defendant had in fact admitted that the recital was incorrect by pleading payment of Rs. 857 some four or five days before the completion of the conveyance and a further payment of Rs. 2,043 in cash and Rs. 100 in the shape of a promissory note three days after execution. But this is not correct. It is true that the payment of Rs. 857 was made some days before the document was finally written out. But the second payment of Rs. 2,043 in cash and Rs. 100 in the shape of promissory note, it is pleaded, was made not three days after the completion or execution of the conveyance, but three days after the first payment and on that date the document was written out. The plaintiff accepted the hand-note as equivalent to Rs. 100 in cash and, therefore, there is no admission by the defendant in his written statement that the recital was incorrect. The onus was, therefore, not upon the defendant to prove payment but on the plaintiff to prove, as the District Judge has held, that the recital in the document was incorrect.

3. It is also not the fact that the learned District Judge has not taken into consideration the document, Exhibit 2, which is spoken of as an amanat patra. He does refer to this document in two paragraphs of the judgment, in which he speaks of a bundle of papers of which this Exhibit 2 was one and again in the next following paragraph he quotes from the evidence of the plaintiff a statement with regard to this amanat patra.

4. Both the contentions advanced by the appellant, therefore, fail and these appeals must be dismissed with costs.


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