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of <h1>High Court shifts burden of proof in property dispute, emphasizes plaintiff's right to recover possession</h1> <h3>Hem Chandra De Sarkar Versus Amiya Bala De Sarkar</h3> The High Court overturned the Subordinate Judge's decision in a property dispute case where the burden of proof regarding notice of contract was ... - Issues:1. Validity of the baina patra and subsequent sale of interests in properties.2. Claim of defendants as bona fide purchasers without notice.3. Burden of proof regarding notice of contract.4. Application of Section 54 of the Transfer of Property Act.5. Correctness of placing the burden of proof on the plaintiff.6. Comparison of positions of defendants 2 and 3.7. Defects in the judgment of the Subordinate Judge.Analysis:The case involves a dispute where the plaintiff sued his great aunt, defendant No. 1, alleging that she agreed to sell her interests in certain lands and the ancestral house but later sold them to other defendants. The trial court found the baina patra genuine and decreed the suit, but on appeal, the Subordinate Judge, without the benefit of full arguments, shifted the burden of proof to the plaintiff regarding notice of the contract to defendants 2 and 3. The High Court held that under Section 27 of the Specific Relief Act, the burden of proof should not have been placed on the plaintiff. The court cited various High Court cases to support this view and emphasized that the onus lies on the party claiming exemption from a general law provision. The court criticized the Subordinate Judge for not considering all circumstances and probabilities that could support the plaintiff's case due to the misplaced burden of proof.Regarding the application of Section 54 of the Transfer of Property Act, the High Court clarified that the plaintiff's right to recover possession from defendants 2 and 3 would arise only after securing performance of the contract and conveyance. The court disagreed with the Subordinate Judge's stance and distinguished previous cases cited in support of the burden of proof placed on the plaintiff. The High Court emphasized that the plaintiff's right to recover possession is contingent upon the performance of the contract for sale.Moreover, the High Court found defects in the Subordinate Judge's judgment, highlighting differences in the positions of defendants 2 and 3 and lack of findings on critical assertions made by defendant No. 1. The court noted discrepancies in the schedule of the baina patra and subsequent sale deeds, indicating the need for a retrial due to these deficiencies. Consequently, the High Court remanded the case for a fresh trial by the first Appellate Court, considering the identified defects in the judgment.
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