IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.97 of 2009 Smt.Saro Devi Versus Md.Motiur Rahman & Ors For the appellant: M/S B.N.P.Singh & Anil Kumar. 6 10-8-2011 Heard Mr. B.N.P. Singh, learned advocate appearing on behalf of the appellant in support of the appeal. This appeal has been filed against the judgment and decree dated 8-12-2008 passed by the Additional District Judge Ist, Nalanda in Title Appeal No. 4 of 1999 affirming the judgment and decree dated 11-12-1998 passed by Munsif, Biharsharif in T.S.No. 34 of 1991. The suit had been filed for declaration of title in his favour by the plaintiff with a further relief for declaration that defendant no.5, Md. Akhtar, had no right to transfer the suit property to the defendant 1st set and for setting aside the sale deed dated 4-9-1981 executed by defendant no.5 in favour of the defendant 1st set as forged, fabricated and void document. The further consequential reliefs had also been prayed in the suit. The plaintiff had filed the suit with the assertion that Md. Ahsan, who was the father of the plaintiff, had by registered gift deed dated 6-9-1962 had gifted the suit land 2 to his three sons, namely, Md. Akhtar, Md. Motiur Rahman and Md. Mozibur Rahman, out of whom Motiur Rahman is the plaintiff in the suit and Md. Akhtar is defendant no.5 in the suit. The specific case of the plaintiff was that by the said gift deed the suit property was allocated to the share of the plaintiff and mentioned in Schedule II of the gift deed. The other Schedules contained the land gifted to his two brothers. The plaintiff has come out with the case that after getting his name mutated on the basis of the gift deed with regard to the suit property he has been coming in peaceful possession of the suit land, but he came to know during 144 proceeding that Md.Akhtar had by registered sale deed dated 4-9-1981 sold the suit property to the defendant 1st set. On the basis of these facts the plaintiff has filed the suit with the above mentioned reliefs. After service of summons the defendants 1st set appeared and filed their written statement. Defendant no.5, Md. Akhtar , did not choose to appear in the suit and contest the claim of the plaintiff. The defendant 1st set have stated in the written statement that the suit property originally belonged to one Kashi Paswan, who ,by registered sale deed of the year 3 1942 sold the same to Sk. Wali Ahmad, who happened to be the maternal grandfather of defendant no.5. That Sk. Wali Ahmad had orally gifted the suit property to defendant no.5, who later on sold the same by registered sale deed dated 4-9-1981 to the defendant 1st set. The further specific case of the defendants is that in the gift deed by Md. Ahsan in favour of his three sons including the plaintiff, the suit land had been wrongly included by scribe against the specific instruction in that regard by Md. Ahsan to the scribe not to include the suit land in the gift deed and as such the suit property in the gift deed has been wrongly shown to have been allocated to the plaintiff. The learned trial court has considered the pleadings and evidence on record in detail and has taken notice of the fact that the defendant 1st set has accepted the gift deed in favour of the plaintiff as executed by his father, Md. Ahsan but with the omission and error committed by the scribe in including the suit land in the said gift deed and therefore the learned trial court has examined the evidence of the defendant 1st set in this regard. After considering the evidence, the learned trial court has come to the finding that the defendant 1st set haa failed to establish by evidence the 4 allegation regarding the omission and the error committed in including the suit land in the gift deed. The learned trial court has concluded that due to the non-raising of any objection by the defendant no.5 against the inclusion of the suit land in the gift deed in the share of the plaintiff, the plaintiff has established the right, title and interest over the suit land in his favour. On the basis of these findings the learned trial court has dismissed the suit. In appeal, the appellate court reconsidered the evidence and submissions of the appellant and it has exphasised that there is non-appearance and non-contest by the defendant no.5 of the claim of the plaintiff and has concluded that adverse inference ought to be drawn for non- appearance and non-contest by defendant no.5. The appellate court below has further recorded the finding that the other evidence on record also support the case of the plaintiff, as made out in the plaint and has thus dismissed the appeal. The learned counsel appearing on behalf of the appellant has submitted that both the courts below have committed error of law in placing the burden of proof upon the defendant 1st set including the fact that Md. Ahsan had 5 no title to the suit property. In this regard the learned counsel has relied upon the provision of section 101 of the Evidence Act in support of his contention that the burden of proof lies on the person who is to prove the fact which he asserts to exist. As such, the learned counsel has submitted that by putting the burden on wrong person judgments of both the courts below are vitiated on this score. No other submission has been advanced by the learned counsel for the appellant. After considering the submission made on behalf of the appellant and perusing the judgments of both the courts below, it appears that the defendant 1st set has admitted the gift deed dated 6-9-1962 executed by Md. Ahsan in favour of his three sons including the plaintiff but has come out with the case that the suit land had been wrongly included in the gift deed by the scribe aginst the instruction given by the donor Md. Ahsan, In view of this fact, the burden of proof was clearly upon the defendant 1st set to establish the error or the omission committed by the scribe as alleged by them in their defence. The courts below have committed no error in putting the burden of proof upon the defendant 1st set. Moreover, the defendant 6 no.5, who was the vendor of the defendant 1st set , did not come to support the case of the defendant 1st set and therefore the appellate court below has correctly drawn adverse inference on this basis. The issues arising in the appeal have been concluded by the concurrent findings of fact and there is no substantial question of law arising for consideration in this appeal. This appeal is, accordingly, dismissed. roy ( V. Nath, J.)