ivil Appeal No 1440 of 1986
From the Judgment and Order dated 30111985 of the Patna High Court in Second Appeal No 129 of 1983
Ranjan Diwvedi AN Bardiar and RS Sharma for the Appellants
D Goburdhan and DN Goburdhan for the Respondent
The Judgment of the Court was delivered by 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 exhibit 2 sale deed dated February 10 1964 executed in his favour by Mst
Tetri the widow of Chhathu Sah the original owner
Tetri had earlier executed exhibit 2 A sale deed on 546 February 14 1959 in favour of her brother s son Lakhan Sao for a consideration of Rs600
She cancelled this deed on July 31 1962 before transferring the property in favour of the respondent
By proceeding dated 1171963 obtained mutation in her name and paid rent on 1871963
The dispute however arose over possession of the land between the respondent and Lakhan Sao that led to proceedings under section 145 Cr
By the order dated March 4 1966 Lakhan Sao and his brother Gulab Sao the appellants herein were put in possession
The present suit was thereafter instituted by the respondent for declaration of this title and possession
The respondent alleged that the deed of 1959 in favour of Lakhan sao was a Farzi Kebala executed without consideration and was not operative and the respondent had acquired valid title under the transfer in his favour
The suit was resisted denying plaintiff s title and asserting that the title and possession passed under the deed of 1959
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 pointing out that the burden to prove that the document of 1959 was farzi in character and remained inoperative clearly lay on the plaintiff and the finding of the first appellate court was vitiated by erroneous conception of law
After the remand the appeal was disposed of by the Additional District Judge by judgment dated January 31 1983 upholding the plaintiff s title and confirming the decree of the Trial court
The second appeal filed against that judgment was dismissed in limine by the High Court on 30111985
This appeal by special leave is directed against that judgment of the High Court
Shri Ranjan Dwivedi learned counsel for the appellants maintained that the first appellate court 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 Court failed to exercise the jurisdiction under section 100 CPC in dismissing the appeal in limine
The original defendant died and his legal representatives are the appellants before this Court
It was submitted that the Additional District Judge had approached the question as to whether the impugned deed of 1959 is a sham and inoperative transaction by casting the burden on the defendant in spite of the specific direction in the order of remand
No fresh evidence had been tendered by the plaintiff to discharge the burden of proving that no consideration passed under the document and that the document was inoperative
The Court proceeded to examine the 547 evidence tendered by the defendant to arrive at the conclusion and has found fault with the defendant for not proving that consideration passed and the transaction has come into operation
This approach according to the learned counsel has vitiated the finding and resulted in miscarriage of justice
The submission is that the lower appellate court has discussed the evidence tendered by the defendant and rejected the same
The respondent s learned counsel pointed out that the lower appellate court had properly appreciated the evidence applying the correct law as to the burden of proof
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
In the suit based on title the burden was undoubtedly on the plaintiff to prove such title
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 consideration
The learned Additional District Judge has proceeded to consider how far this onus which lay heavily on the plaintiff had been discharged
He referred to the various tests that have been laid down in order to ascertain that a particular deed is a Farzi Kebala
He considered the relationship between the parties the evidence relating to the custody of the document passing of consideration motive and possession
It was found that Lakhan Sao and his brother Gulab Sao were closely related to Tetri that exhibit 2 A sale deed was in the custody of Tetri and it had been produced in Court by the plaintiff
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 not take part in the preparation of the document
He inforred this fact from the circumstance that incorrect particulars had been incorporated in the deed
He rejected the contention that the documents were surreptitiously obtained by the plaintiff and his vendor
It was noticed that even after the execution of the deed Tetri was continued to be in possession
She moved the authorities for recording her name in Jamabandi and she had paid the rent
Regarding the motive for the execution of the deed it was noticed that Mst
Tetri had debts and the deed was executed to cover the property from the reach of the creditors and without consideration
The learned Additional District Judge considered the evidence relating to the consideration
He referred to the evidence of PW 8 the attesting witness and PW 14 the plaintiff
These witness stated that nothing had been paid as consideration
As per the recital in the deed an amount of Rs 500 was a prior payment and Rs100 was paid in cash at the time of execu 548 tion
The learned Judge noticed that there was no specific statement regarding the payment of any part of the consideration in cash
The vendor was dead
Lakhan Sao the defendant avoided the witness box
The evidence of the parties to the document was not therefore on record
Gulab Sao the brother of Lakhan Sao was examined as DW 11
His evidence was analysed and was found to be discrepant
The learned Judge on a consideration of evidence on both sides found that the evidence on the point of payment of consideration by appellant Lakhan Sao is far from satisfactory and the evidence of the appellants is unworthy of credit
Motive was found to be satisfactorily established as the existence of debts to some creditors was admitted
On the question of possession the learned Judge scrutinised the evidence and found that Tetri was in possession even after execution of exhibit 2 A Having found these ingredients in favour of the plaintiff the learned Judge concluded that exhibit 2 A executed by Tetri on 1421959 was only Farzi Kebala without any consideration and it created no title and possession to the appellant
The findings are essentially findings of fact
If however the appellants succeed in showing that in recording the findings of fact the court had proceeded on a wrong conception of law as to onus the correctness of the findings has necessarily to be examined
The only point that has been stressed before us is that lower appellate court has wrongly proceeded on the basis that onus shifted to the defendant to prove the passing of consideration and that the evidence did not establish that fact
It was maintained that the onus did not shift as the burden was entirely on the plaintiff to prove the fact that document was inoperative and no consideration did pass thereunder
We have point out earlier that the High Court has set aside the earlier decree pointing out the error committed by the lower appellate court
This observation made by the High Court has been kept in mind by the Additional District Judge in disposing of the appeal thereafter
The learned Judge has considered the question of burden on the plaintiff to establish that there had been no consideration
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
On a consideration of the whole evidence the Court has concluded that there had passed consideration
This finding cannot therefore be said to be vitiated
It is always open to the defendant not to lead any evidence where the onus is upon the plaintiff but after having gone into evidence he 549 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 material
In the present case 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 operation thereby pleading the necessary facts in support of his title
Evidence was tendered to prove what has been 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 Court and the findings have been recorded
We do not agree that any error had been committed by the learned Judge in his approach
He recorded definite findings on a clear analysis of the entire evidence and the findings are fully supported by the evidence on record
We do not therefore see any merit in the appeal which is accordingly dismissed
No costs
TNA Appeal dismissed


Summary:
Appellant s land was acquired by the Agra Town improvement Trust under the provisions of the UP Town Improvement Act 1919
For the land acquired the appellant was paid a paltry sum
No solatium was awarded as none was awardable under the Act
391B
The appellant sought a reference before the Nagar Mahapalika Tribunal
The Tribunal raised the compensation to Rs145839 and also awarded interest at the rate of 4 12 percent
Still dissatisfied the appellant moved the High Court in appeal
The Nagarpalika also filed a cross appeal against enhancement
The High Court allowed the appeal of the appellant and further enhanced the compensation by Rs48613 and the rate of interest to 6 percent
On the amount of Rs48613 solatium at the rate of 15 was awarded by the High Court
No solatium was however awarded on the slim Of Rs 145839 awarded by the Tribunal on the ground that the appellant had not made a grouse or laid any claim to it in his grounds of appeal
The High Court negatived the contention of the appellant that his claim to solatium was not based on any demand at his instance but it was rather a statutory duty of the Court to grant it
Allowing the appeal this Court HELD 1 Solatium as the word goes is money comfort quantified by the statute and given as a conciliatory measure for the Compulsory acquisition of the land of the citizen by a welfare state such as ours
392D E 390 2 The importance of the award of solatium cannot be undermined by any procedural brocades
It follows automatically the market value of the land acquired as a shadow would to a man
It springs up spontaneously as a part of the statutory growth on the determination and emergence of market value of the land acquired
That it falls to be awarded by the Court in every case leaves no discretion with the court in not awarding it in some cases and awarding in others
393A B Om Prakash vs State of Uttar Pradesh 19741 2 SCC 731 referred to
3 Solatium in the scheme of section 232 of the Land Acquisition Act is part of the compensation and sections 28 and 34 of the said Act Provide for payment of interest on the amount of compensation
394H 395A Periyar  Pareekanni Rubbers Ltd vs State of Kerala   referred to
4 Solatium being part of compensation must fetch statutory interest from the date of dispossession of the land owner tin date of payment
395D Dr Shamlal Narula V Commissioner of Income Tax Punjab   referred to