According to Section 101 of the Indian Evidence Act, 1872 one must prove that the facts exist if he desires judgment regarding any legal right or liability: High Court Of Sikkim

THE HIGH COURT OF SIKKIM: GANGTOK Civil Appellate Jurisdiction) SINGLE BENCH: THE HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN JUDGE R.S.A. No. 017 Shri Chandra Bir Gurung S o late Nar Bahadur Gurung R o Labdang P.O. Tashiding West Sikkim. Presently residing at Sirwani P.O. Singtam East Sikkim. Shri Pratap Singh Gurung S o late Nar Bahadur Gurung R o Labdang P.O. Tashiding West Sikkim. ….. Appellant The Secretary Land Revenue & Disaster Management Department Government of Sikkim New Secretariat Gangtok P.O. Gangtok P.S. Sadar East Sikkim. The Revenue Officer District Collectorate Gyalshing P.O. Gyalshing West Sikkim. ….. Respondents Appeal under Section 100 of the Code of Civil Procedure Mr. U.P. Sharma Advocate with Mr. Krishna Bhandari Advocate for the Appellant. Mr. A. Moulik Senior Advocate with Ms. K. D. Bhutia Advocate for the respondent no. 1. R.S.A. No. 17 Chandra Bir Gurung vs. Pratap Singh Gurung and Ors. Mr. S. K. Chettri Government Advocate for the respondent nos. 2 and 3. Date of hearing : Date of judgment: 20.10.2021 06.10.2021 & 08.10.2021 Bhaskar Raj Pradhan J. A second appeal is maintainable before the High Court if the High Court is satisfied that the case involves a substantial question of law. The Supreme Court in Union of India vs Ibrahim Uddin & Another1 held that the existence of substantial question of law is sine qua non for the exercise of jurisdiction under the provisions of section 100 of the Code of Civil Procedure 19088 SCC 148 2AIR 2005 SC 1008 R.S.A. No. 17 Chandra Bir Gurung vs. Pratap Singh Gurung and Ors. question should emerge from sustainable findings of facts arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision between the parties. In Karnataka Board of Wakf vs. Anjuman E Ismail Madris Un Niswan3 the Supreme Court held that the High Court should not interfere with the concurrent finding of fact in a routine and casual manner by substituting its subjective satisfaction in place of lower courts. In Smt. Bismillah Begum by LRs vs Rahmatullah Khanby LRs4 the Supreme Court held that the findings of fact arrived at by the courts below are binding in second appeal. The concurrent findings of the learned trial court and the learned first appellate court can be interfered only in cases wherematerial evidence were ignored or the courts acted on no evidence there is wrong inferences from proved facts by erroneously applying the law or the courts have passed the burden of proof wrongly. The present dispute is between two brothersthe plaintiff and the defendant no.1 amongst the six sons of late Nar Bahadur Gurung. The dispute relates to plot no. 302 472 and plot no. 90 473recorded in ‘parcha khatiyan’ no. 121 in the name of the defendant no.1. According to the plaintiff the properties of late Nar Bahadur Gurung had been divided between the sons without any formal partition deed. Plot no.302 3AIR 1999 SC 3067 4AIR 1998 SC 970 R.S.A. No. 17 Chandra Bir Gurung vs. Pratap Singh Gurung and Ors. fell in his share. Plot no. 90 fell in the joint share of his brother late Kharga Bahadur Gurung and defendant no.1. As the plaintiff was staying away from the suit land the defendant no.1 in connivance with some employees of the District Collectorate mutated the plots in his name without any notice or no objection from the brothers. The plaintiff prayed for declaratory reliefs and recovery of possession of the suit property. In a suit for declaration and possession the burden is on the plaintiff to establish its case. The defendant no.1 also admitted that there was partition of the properties of late Nar Bahadur Gurung but the suit property fell in his share. The suit was dismissed by the learned Trial Judge holding that the plaintiff had failed to substantiate his plea that the suit property fell in his share. The learned first Appellate Court upheld the findings of the learned Trial Court. Both the courts examined the ‘parcha khatiyan’ exhibit 1) in substantial detail contrary to what has been pleaded in the appeal. Section 101 of the Indian Evidence Act 1872 states that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts he asserts R.S.A. No. 17 Chandra Bir Gurung vs. Pratap Singh Gurung and Ors. must prove that those facts exist. When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. Pleading the material facts clearly and precisely on which the plaintiff relies for his claim is necessary. In a case like the present one it was also necessary for the plaintiff to plead particulars of how and with whom the defendant no.1 connived. Allegation of connivance must be clearly pleaded with material particulars and proved. 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. The plaintiff examined himself his brother Ganga Gurungand Hasta Bahadur Gurungand that all his brothers have their respective share of the properties belonging to late Nar Bahadur Gurung. Besides oral evidence the plaintiff exhibited eight documents. No evidence has been led by the plaintiff to establish what he asserted in the plaint that the suit property fell in his share and the defendant no.1 in connivance with the employees of the District Collectorate surreptitiously and illegally mutated the suit properties in his name. S.K. Limbooexamined himself. He was the concerned Revenue Officer. His cross examination by the plaintiff reflects that it was not even put to him that the employees of the District Collectorate R.S.A. No. 17 Chandra Bir Gurung vs. Pratap Singh Gurung and Ors. had in connivance with defendant no.1 mutated the plots in his name. 10. 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. 11. The appeal is dismissed. 12. No orders as to costs. Judge Bhaskar Raj Pradhan ) Approved for reporting: Yes No : Yes No Internet 

Summary: 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.”