When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Such an opinion was held by The Hon’ble High Court Of Sikkim before The Hon’ble Mr. Justice Bhaskar Raj Pradhan in the matter of Shri Chandra Bir Gurung Vs. Shri Pratap Singh Gurung and Ors [R.S.A. No. 01 of 2017].
The fact of the case was associated with an appeal filed under Section 100 of the Code of Civil Procedure, 1908. The case was a dispute between two brothers, the plaintiff and defendant no.1. The dispute was related to a plot in a suit property recorded in ‘parcha khatiyan’ no.121 in the name of defendant no.1. It was stated that the property of late Nar Bahadur Gurung was divided between the sons without any formal partition deed. The plaintiff lived away from the suit land. As per the submissions, defendant no.1 with the assistance of the District Collectorate mutated the plots in his name without any notice or no objection from the brothers. In the appeal, the plaintiff prayed for relief and recovery of possession of the suit property.
The defendant no.1 contended that the properties of late Nar Bahadur Gurung was partitioned but the suit property fell in his share. It was stated that the burden falls on the plaintiff in a suit for declaration and possession. In the proceedings, the plaintiff did not also plead how exactly the partition took place and what was the share of each of the brothers of the plaintiff.
After considering all the facts and submissions in the proceedings, The Hon’ble Court pronounced that “ Consequently, this court is of the view that the solitary question of law framed by this court, that the learned First Appellate Court had not considered the ‘parcha khatiyan’ (exhibit-1) correctly and the impugned judgment was based on its misinterpretation, must be answered in the negative. Further, it is held that this is not a fit case for interference with the concurrent findings of fact passed by the district judiciary. The appeal is dismissed.”
Judgment reviewed by Bipasha Kundu