HONOURABLE SRI JUSTICE B. PRAKASH RAO CIVIL REVISION PETITION No. 3205 of 2006 DATED 26TH AUGUST, 2010. BETWEEN Boya Thippaiah … Petitioner and Mullnti Ahmad Baig …Respondent HONOURABLE SRI JUSTICE B. PRAKASH RAO CIVIL REVISION PETITION No. 3205 of 2006 ORDER: The petitioner who is a judgment debtor ﬁled this Civil Revision Petition under Section 115 CPC assailing the arrest ordered by the Court below in E.P.NO.112 of 2004 in O.S.No. 227 of 2000 ﬁled by the respondent in pursuance of the decree obtained by him. The case of the decree holder is that even though the petitioner had means, but he failed to discharge the decreetal amount and hence there is need for arrest him. The said plea was contested by the petitioner herein. The parties had led evidence. The petitioner and respondent herein were examined as R.W.1 and P.W.1 respectively before the Court below, however, no documentary evidence was not marked. The court below taking into consideration the evidence and especially certain admissions alleged to have been made by R.W.1 to the eﬀect that he is having hut bearing door No.181 and since the petitioner/judgment debtor has failed to prove it by producing any evidence to the eﬀect that the land in which the said hut situated belongs to temple, observed that it cannot be said that the petitioner had no capacity to raise funds by sale of the said land. Having heard the learned counsel on either side and perused the material on record, it is to be seen that it is well settled that burden of proof shifts on the person who made admission. It is for the opposite party to deny or admit the same. In this case it is absolutely the burden of the petitioner to prove the ownership or otherwise of the hut in question and in respect of which, according to him, there is no vested right on it. Though R.W.1/petitioner deposed in his cross-examination that his hut is in the site belonging to the temple, but according to the Court below, it is for him to produce documentary evidence to show that the land where the hut is situated is not belonging to him. However, it is not the case of the decree holder in this case specifically that the petitioner was the owner of the said hut bearing door No. 181. Either way, it cannot be the property possessed by the judgment debtor. The Court below erroneously shifted the burden on the petitioner and held that in the absence of production of any documentary evidence by the petitioner/R.W.1 to show that the said hut is belonging to the temple land, it cannot be said that he had no capacity to raise funds by sale of the said land. It is highly impossible for any person to bring documentary evidence in respect of ownership of any property to which he is not a owner. Necessarily if the decree holder seeks to rely on such fact, it is for him to prove as to whether the land and hut both belong to the petitioner. In the absence of which, it cannot be said that because of failure on the part of the petitioner to produce evidence in that regard,, it cannot be presumed or attributed that the petitioner has capacity to raise funds. In view of the same, the very approach of the Court below is erroneous and unsustainable. In the circumstances, it is desirable that the matter requires fresh consideration afresh. The matter is remitted back to the Court below, which shall after issuing notice to both sides, dispose of the matter afresh, in accordance with law. It is open to both sides to lead further evidence, if any. The Civil Revision Petition is allowed to the extent indicated above. No order as to costs. ---------------------------------------- JUSTICE B. PRAKASH RAO 26T H AUGUST, 2010. Msnr.