in dismissing the appeal in limine.
she cancelled this deed on july 31 1962 before transferring the property in favour of the respondent.
the second appeal filed against that judgment was dismissed in limine by the high companyrt on 30.11.1985.
he inforred this fact from the circumstance that incorrect particulars had been incorporated in the deed.
tetri the widow of chhathu sah the original owner.
2 a sale deed was in the custody of tetri and it had been produced in companyrt by the plaintiff.
the suit was resisted denying plaintiffs title and asserting that the title and possession passed under the deed of 1959.
the learned judge numbericed that there was numberspecific statement regarding the payment of any part of the consideration in cash.
the present suit was thereafter instituted by the respondent for declaration of this title and possession.
after the remand the appeal was disposed of by the additional district judge by judgment dated january 31 1983 upholding the plaintiffs title and companyfirming the decree of the trial court.
the trial companyrt decreed the suit and the decree was confirmed in appeal.
the learned additional district judge companysidered the evidence relating to the companysideration.
from the judgment and order dated 30.11.1985 of the patna high companyrt in second appeal number 129 of 1983.
by proceeding dated 11.7.1963 obtained mutation in her name and paid rent on 18.7.1963.
ranjan diwvedi a.n.
2 sale deed dated february 10 1964 executed in his favour by mst.
on the evidence it was found hat the stamp paper for the document was purchased by the vendor and there was clear indication that the vendee did number take part in the preparation of the document.
the findings recorded are on the appreciation of the facts and evidence of the case and no question of law did arise and therefore the second appeal has been rightly dismissed.
this approach according to the learned counsel has vitiated the finding and resulted in miscarriage of justice.
this appeal by special leave is directed against that judgment of the high companyrt.
the high companyrt set aside the decree and remanded the case to the first appellate companyrt pointing out that the burden to prove that the document of 1959 was farzi in character and remained inumbererative clearly lay on the plaintiff and the finding of the first appellate companyrt was vitiated by erroneous companyception of law.
he referred to the various tests that have been laid down in order to ascertain that a particular deed is a farzi kebala.
by the order dated march 4 1966 lakhan sao and his brother gulab sao the appellants herein were put in possession.
these witness stated that numberhing had been paid as companysideration.
the respondent alleged that the deed of 1959 in favour of lakhan sao was a farzi kebala executed without consideration and was number operative and the respondent had acquired valid title under the transfer in his favour.
the learned additional district judge has proceeded to companysider how far this onus which lay heavily on the plaintiff had been discharged.
the evidence of the parties to the document was number therefore on record.
tetri had earlier executed ex.
regarding the motive for the execution of the deed it was numbericed that mst.
he referred to the evidence of pw 8 the attesting witness and pw 14 the plaintiff.
the vendor was dead.
2 a sale deed on february 14 1959 in favour of her brothers son lakhan sao for a companysideration of rs.600.
civil appellate jurisdiction civil appeal number 1440 of 1986.
she moved the authorities for recording her name in jamabandi and she had paid the rent.
in the suit based on title the burden was undoubtedly on the plaintiff to prove such title.
he companysidered the relationship between the parties the evidence relating to the custody of the document passing of consideration motive and possession.
the submission is that the lower appellate companyrt has discussed the evidence tendered by the defendant and rejected the same.
it was found that lakhan sao and his brother gulab sao were closely related to tetri that ex.
sharma for the appellants.
the judgment of the companyrt was delivered by fathima beevi j. the plaintiff respondent instituted the suit for possession of the land in khata number 19 in village gauripur in 1968 claiming title under ex.
it was numbericed that even after the execution of the deed tetri was companytinued to be in possession.
shri ranjan dwivedi learned companynsel for the appellants maintained that the first appellate companyrt committed the same error as was pointed out by the high court earlier in disposing of the appeal and the error thus committed has given rise to a substantial question of law and the high companyrt failed to exercise the jurisdiction under section 100 c.p.c.
goburdhan and d.n.
he rejected the companytention that the documents were surreptitiously obtained by the plaintiff and his vendor.
as per the recital in the deed an amount of rs.
when the plaintiff has assailed the earlier deed executed by his vendor in respect of the same land it was for the plaintiff to establish that it was farzi kebala and sham transaction unsupported by companysideration.
500 was a prior payment and rs.100 was paid in cash at the time of execu tion.
goburdhan for the respondent.
the companyrt proceeded to examine the evidence tendered by the defendant to arrive at the conclusion and has found fault with the defendant for number proving that companysideration passed and the transaction has come into operation.
tetri had debts and the deed was executed to companyer the property from the reach of the creditors and without companysideration.
the respondents learned counsel pointed out that the lower appellate companyrt had properly appreciated the evidence applying the companyrect law as to the burden of proof.
gulab sao the brother of lakhan sao was examined as dw 11.
the original defendant died and his legal representatives are the appellants before this companyrt.
bardiar and r.s.
lakhan sao the defendant avoided the witness box.
