Lalita James vs.

Ajit kumar

IN THE HONBLE HIGH COURT OF MADHYA

PRADESH
JABALPUR

Smt. Lalita James and Others

(Appellant)

Ajit Kumar and Others

(Respondent)

SUBMITTED BEFORE THE HONBLE HIGH COURT OF MADHYA

PRADESH
6TH APRIL, 2017

MEMORANDUM ON BEHALF OF APPEALLANT

Semester- IV, Roll No- 81

Section- B

Memorandum On Behalf Of The Appellant Page 1

 Lalita James vs. Ajit kumar

TABLE OF CONTENTS

1. List of Abbreviation---------------------------------------------------- 3

2. List of Cases------------------------------------------------------------- 4

3. Statement of Jurisdiction----------------------------------------------- 5

4. Statement of Fact-------------------------------------------------------- 6

5. Questions Presented----------------------------------------------------- 7

6. Summary of Pleadings-------------------------------------------------- 8

7. Written Submissio------------------------------------------------------- 9

8. Prayer--------------------------------------------------------------------- 11

LIST OF ABBREVIATIONS

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 Lalita James vs. Ajit kumar

AIR___________________________________________________ All India Report

SC____________________________________________________ Supreme Court

SC____________________________________________________ Supreme Court Cases

AP____________________________________________________ Andhra Pradesh

Ors.___________________________________________________ Others

St.____________________________________________________ Saint

Kant__________________________________________________ Karnataka

V____________________________________________________ Versus

H.P__________________________________________________ Himachal Pradesh

Ed.__________________________________________________ Edition

LIST OF CASES

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 Lalita James vs. Ajit kumar

1. The Commissioner v. L T Swamiar of Srirur Mutt1

2. SSTS Saheb v. State of Bombay2
3. Seshammal v. State of Tamil Nadu3
4. In the case of Acharya Jagdishwaranda Avadhuta and Ors v. The Commissioner of
Police, Calcutta and Anr.4
5. Bijoe Emmanuel and Ors. v. State of Kerala and Ors.5

LIST OF AUTHORITIES, STATUTES, CODES

1. The Constitution of India, 1950

2. Code of Criminal Procedure, 1973

1 1954 SCR 1005

2 1962 (Supp) 2 SCR 496

3 [1972]3SCR815

4 1983CriLJ1872

5 1986 Cri LJ 1736

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 Lalita James vs. Ajit kumar

STATEMENT OF JURISDICTION

The counsel on behalf of the appellant approaches the Honourable High Court of Madhya
Pradesh under Section 96 of Code of Civil Procedure, 1808.

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 Lalita James vs. Ajit kumar

STATEMENT OF FACT

1. Shri. P.S Chouhan an Indian Christian, owned vast properties including houses,
outhouses and 5.74 acres of open land at Gorakhpur, Jabalpur. He was unmarried and
issueless and therefore decided to give-away the said properties to his two sisters, Mrs
Dayabai Lakshmanan and Mrs. Grace Pratibai Morris, in equal shares and for that
purpose executed a registered gift deed on 8/04/1935.
2. Mrs Dayabai Lakshmanan is now survived by Appellant No. 2, 3 and 4 while Mrs
Grace Pritabai Morris is survived by Appellant No.1 and Respondent No.3. There had
been no partition between two sisters and therefore, the properties continue to be joint
and undivided between them.
3. It however appears that two daughters of Mrs. Grace Pritabai Morris portioned their
shares after her death. Partition deed gives her entire share in 5.74 acres of
agricultural fields to the Appellant Mrs.Lalita James. It however, apperss that the
arrangement contained in these deed was subsequently amended by partition-
agreement whereby part of the plot No.434 was given to respondent No.3. In this
agreement it was specifically mentioned that a portion of plot No. 434 had been
jointly sold by two sisters 07/06/1950 who have also shared the sale proceed by
mutual agreement.
4. After this agreement the respondent No. 3has been selling her share to various parties.
She sold a part to Kaailash Housing Co-operative society on 21/01/1963. She also
sold one part of it to Respondent No.2 on 10/08/1964 for a valuable consideration of
Rs. 14,00/- by registered sale-deed. It appears that a true copy of the sale deed was
filed before the trial court. From the descriptions of the sold plot given in the sale-
deed, it appears that it is surrounded by diversion plot No. 276,277,278 and 279 on
the North; open land of Mrs Lalita James at the South-west; quaters of Mr.
Shrivastava, Ajit Das and Arun Kumar Das, at the East and diversion plots No. 273
and 432 at the West. From the sale-deed it appears that this plot is recorded as Plot
No.434/2 in Revenue Case No.4 of 1961-62 which the vendor has explained to be an
error.

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 Lalita James vs. Ajit kumar

5. The Respondents-plaintiff allege that after purchase they started digging foundation
on a part of the suit land to raise structure on it when Shri Balram claiming to be the
agent of Appellant No. 1 objected to same. The said Balram asserted possession of
Appellant No.1 over the suiut plot and, therefore, they filed thee Civil Suit No. 9-A of
1970 in the Second Civil Judge Class II, Jabalpur claiming permanent injunction
against the Appellant No.1 Smt Lalita James and her agent.
6. The trial court however, held that the plaintiff-respondents were not in possession of
the suit land and on the this finding dismissed the suit. They have joined the vendor,
the Respondent No.3, in the suit to support their alternative claim of compensatioin, in
case it was held that the sale in their favour did not confer any right or title upon
them.
7. The Appellants, inn their written statement, denied that Respondent No.3 has received
the suit land in partition. According to them , the sale by her in favour of the
respondents-plaintiffs was on no consequence and did not confer any rights title upon
them, Though the Respondent No.3 remained ex parte, she has appeared as a witness.
8. The Appellant denied the claim of the respondents-plaintiff to possession of 36885
sq.ft. of land. They however, submitted that the Respondent can, at most, claim rfund
of Rs 14,000/- and nothing more. The learned Trial Judge on consideration of
evidence adduced by the parties, held that the Respondent-Plaintiffs. According to the
court, though the plaintiffs were put in possession of the suit plot, they have
themselves given-up the said possession. On these findings the suit was decreed and
hence this Appeal.

QUESTIONS PRESENTED

I. Whether the Respondents failed to perform the burden of proof?

II. Whether the Respondednts can be given any relief in this suit?

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 Lalita James vs. Ajit kumar

SUMMARY OF PLEADINGS

I. Whether the Respondents failed to perform the burden of proof?

It is humbly submitted that Respondents are not capable to perform the burden of proof of the
document on which they are relying.

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 Lalita James vs. Ajit kumar

WRITTEN SUBMISSION

I. RESPONDENTS ARE NOT CAPABLE TO PERFORM

BURDEN OF PROOF OF THE DOCUMENT ON WHICH
THEY ARE RELYING.

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 Lalita James vs. Ajit kumar

It is humbly submitted that as the Respondents-Plaintiffs were claiming for the possession of
the suit land, therefore it is the burden of the respondents-plaintiffs to first help this Court in
identifying the suit property. According to Section 102 of Evidence Act, 1872

The burden of proof in a suit or proceeding lies on that person who would fail if no
evidence at all were given on either side

This section can be explained in the following way

The burden of proving the execution of a document is on the party relying on the document,
unless its execution be admitted. The fact that a document is proved to bear a certain
signature and that it comes from proper custody, is enough to raise an inference that it was
signed by with the intention of execution and if a person wants to show the contrary the
burden of proof lies on him.

The burden according to Section 102 of Evidence Act, 1872 is upon the Respondent-Plaintiff
and Respondents are not capable of submitting the sale-deed of the suit property to spot out
the aforesaid property in the map. The suit property is described by Letters A.B.Q.R.S.J. & K.
in the map annexed in the plaint. The attached map which now forms part of the impugned
decree, however, does not describe the area by these words. The sale-deed which forms basis
of the title of the respondents-plaintiffs is not on record and, therefore, it is not possible for
this Court to ascertain whether this map compares with the map or descriptions of the suit
plot in the sale-deed. The respondents-plaintiffs have filed several maps to clarify the
situation of the suit land. None of these maps tally with the plaint map. There is also disparity
on the maps present in the Plaint and the maps provided by Respondents regarding the
boundaries of aforesaid land. There is no explanation of this disparity of boundaries by the
Respondents. Indeed it appears that no effort was made to properly identify the suit plot at
any time before, which in the opinion of this court, was the basic requirement.

In Jagannath Prasad v. Syed Abdullah, AIR 1918 PC 35 it was held that

The defects in evidence of the party on whom the onus of proof lie cannot be cured by
criticism of the evidence of the other party, in claims based on title, the plaintiff who makes
such a claim has to prove his subsisting title

In M.M.B. Catholicos v. T. Paulo Avira, AIR 1959 SC 31 it was held that

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 Lalita James vs. Ajit kumar

It is the strength of the plaintiffs title and not the absence of title in the defendant that
matters in a suit for possession

Since this is the suit by purchasers of the property for possession and is contested by the
appellants who are admittedly in possession, the onus is on the respondents-plaintiffs to prove
that their vendor had the necessary title.

PRAYER FOR RELIEF

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 Lalita James vs. Ajit kumar

Wherefore in the light of facts stated, issues raised, arguments advanced and authorities cited.
This Honourable Supreme Court of India may be pleased to pass a decision and declare that:

1. Anand Margis do not enjoy protection under Article 25 and Article 26(b) of the
Constitution of India.
2. The appeal should be allowed.

Or pass any other order which can be deemed fit in the spirit of justice, equity and good
conscience.

All of which is humbly submitted before the Honourable Supreme Court of India.

Date:24th August 2015 Counsel for Appellant

Place: Delhi Ishu Deshmukh

Section- B, Semester IV

Roll No. 81

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