Decided on August 30,1962



- (1.) This appeal is against a decree setting aside a revenue sale 16 acres of garden land in Kunnathukal village was sold in auction for Rs. 33/- on 25-11-1117 and purchased by the 2nd defendant, the appellant. The Additional District Judge, Trivandrum, set aside the sale on the ground that two of the four concerned landholders were dead at the relevant period and their legal representatives had not been brought on record before the sale was had. The appeal is against that decree preferred by the auction purchaser.
(2.) Counsel for the appellant contended that the plaintiffs' title to the suit property having been challenged by the appellant, the plaintiffs were bound to have proved their title thereto which they had not done and therefore the suit ought to have been dismissed. The plaintiffs had produced Ext. P. 1 judgment, and Ext. P. 2 decree of the District Court, Trivandrum, in A. S. Nos. 144 and 287 of 1104, and Ext. P. 3 decree of the Travancore High Court in S. A. No. 256 of 1109 affirming the same. The title of the plaintiffs' tarwad to the suit property had been declared in those judgments. The court below had accepted the same as prima facie proof of the plaintiffs' interest in the property and therefore held them competent to question the revenue sale and to seek recovery of the property. Counsel contended that the auction purchaser at a revenue sale is not a representative of the landholder but an assignee of the Government's interest in the land sold and as neither the appellant nor the Government had been a party to Exts. P. 1 to P. 3 the findings entered therein are of no value against him and therefore the plaintiffs must be held not to have discharged their burden of proof by the production of the aforesaid decrees and judgment.
(3.) The expression 'burden of proof' is used in two distinct meanings but very often the distinction is overlooked. The Judicial Committee of the Privy Council in Lakshmanna v. Venkateswarlu (AIR 1949 P. C. 278) observed: "What is called the burden of proof on the pleadings should not be confused with the burden of adducing evidence which is described as "shifting". The burden of proof on the pleadings never shifts, it always remains constant ........ the initial burden of proving a prima facie case in his favour is cast on the plaintiff; when he gives such evidence as will support a prima facie case, the onus shifts on to the defendant to adduce rebutting evidence to meet the case made out by the plaintiff. As the case continues to develop, the onus may shift back again to the plaintiff ........ When after the entire evidence is adduced, the tribunal feels it cannot make up its mind as to which of the version is true, it will hold that the party on whom the burden lies has not discharged the burden; but if it has on the evidence no difficulty in arriving at a definite conclusion, then the burden of proof on the pleadings recedes into the background". The initial burden of proof of plaintiffs' title to the property was no doubt on the plaintiffs themselves. They have produced judgments of competent civil courts declaring the title of their tarwad to the suit property. Not being judgments inter partes or in rem, the probative value of those judgments may be low ; nonetheless they cannot be said to be of no value as documents of plaintiffs' title. The plaintiffs having thus given some proof of their title the burden shifted on to the defendant either to prove a competing title in himself or to dislodge the evidence of the plaintiffs. Nothing has been done in this regard by the defendant. The court below was therefore right in holding on the evidence on record that the plaintiffs have proved to be interested in the property and therefore competent to question the revenue sale.;

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