Chattisgarh High Court
Smt.Gangotri Bai And Others vs Smt.Maina Bai And Others on 17 February, 2025
1 / 15
2025:CGHC:8218
Reserved on 19.11.2024
Delivered on 17.02.2025
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
SA No. 545 of 2004
1. Smt.Gangotri Bai Wd/o Late Shri Satrughan, aged aobut 40 years,
2. Mevalal S/o late Satrughan, aged about 21 years,
3. Dilip S/o late Satughan, aged 17 years,
4. Jeet Kumar S/o late Satrughan aged about 11 years.
5. Sujeet Kumar S/o late Satrughan, aged about 6 years
6. Pushpa Bai D/o Late Satrughan, aged about 12 years.
[no.3 to 6 minor represented through mother Gangotri Bai] All resident of village
Kauriya, Tah. Masturi, Distt. Bilaspur [C.G.]
... Appellants
versus
1. Smt.Maina Bai Wd/o late Shri Bauram, aged about 49 years.
2. Amrit lal S/o late Dauram, aged about 24 years.
3. Bablu S/o late Dauram, aged 16 years.
No.3 minor, represented through mother Maina Bai, All resident of village Kauriya,
Tah. Masturi, Distt. Bilaspur [C.G.]
... Respondents
For appellants : Mr. Sourabh Sharma, Advocate along with Ms. Harneet
Kaur Khanuja, Advocate
For Respondent : Mr. Rohit Sharma, Advocate
Hon'ble Shri Justice Sachin Singh Rajput
CAV JUDGMENT
1. Appellants being aggrieved by the judgment and decree dated 08.09.2004
passed by the 1st Additional District Judge, Bilaspur (for short ' First Appellate
Court'), in FA No.20-A/2004 (Maina Bai & Ors. Vs. Gangotri Bai & Ors.)
whereby the First appellate Court has reversed the judgment and decree dated
27.01.2004 passed by 5th Civil Judge, Class-I, Bilaspur (in short "trial Court")
in Civil Suit No.195-A/2002 (Gangotri Bai & Ors. Vs. Maina Bai and Ors.)
have filed this appeal under Section 100 of CPC, 1908. Parties are herein
referred to their original status as in the trial Court.
2. On 21.11.2005 this Court admitted the appeal on the following substantial
question of law:-
"Whether the finding of the first appellate Court
reserving the judgment and decree passed by the trial
Court in favour of the appellant that the appellant does
not derive any title over the suit property, has been
recorded ignoring the documents available on record?"
3. Thereafter on 05.03.2020 during the course of hearing of this appeal this Court
framed the following additional substantial question of law:-
"Whether the learned lower appellate Court was justified
in holding that the plaintiff was required to establish and
prove his title before seeking recovery of possession in
view of Section 116 of the Evidence Act?"
4. During the pendency of this appeal, an application for taking documents on
record under Section 151 of CPC annexing the sale deed dated 01.04.1970
(Annexure A-1) and certified copy of sale deed dated 16.03.1966 (Annexure
A/2) was filed.
5. Facts of the present case in nutshell are that the plaintiffs filed a civil suit for
possession on the basis of title with respect of property comprised in piece of
land bearing Khasra No.238 area 0.20 acres situated at village Kauriya, Tah.
Masturi, District Bilaspur Ph. No.36, Revenue Circle Seepat Tahsil & District
Bilaspur. Out of that property the dispute is with regard on 0.03 acre of land
which is hereinafter referred as 'suit property'. As per the pleading, the suit
property was given to the original defendant Dauram by original plaintiff
Shatrughan for residential purposes. In the year 1987, the original plaintiff
asked the original defendant to vacate the suit property. Despite that the vacant
possession of the suit property was not handed over to the original plaintiff,
therefore, suit for delivery of possession of the suit property was filed. The
original plaintiff and the original defendant have died during the pendency of
suit.
6. The written statement was filed and it was pleaded that the plaintiffs did not
have any title or possession over the suit property and the defendants are in
possession of the suit property for the last 50 years. The plaintiff in connivance
with the patwari had recorded his name in the revenue records. The defendant
has never entered into the suit property with the permission of the plaintiff.
Rather the suit property was received by the defendant from the owner of the
suit property Vitthtal. It has further been pleaded that the plaintiffs have
purchased a land bearing Khasra No.525 admeasuring 0.86 acre through
registered sale deed dated 01.04.1970. On this basis, the prayer was made for
dismissal of the suit.
7. On the basis of above pleadings, the trial Court framed the following issues
and additional issues and gave the findings which are reproduced herein
below:-
वाद - प्रश्न निष्कर्ष
1) क्या वादी ग्राम कोड़िया प० ह० न० - 36 रा मि नं सीपत तह० व जिला प्रमाणित
बिलासपुर को भूमि खसरा क्र०- 238 रकबा 0.20 एकड़ का भूमि स्वामी व
मकान मालिक है?
2) क्या उक्त भूमि में से ०.०३ एकड़ भूमि जिसे अनुसूची "अ" में अ ब स ड से हाँ
दर्शाया गया है?
3) क्या वादी ने प्रतिवादों को उक्त भूमि में मकान बनाकर निवास प्रयोजन हेतु प्रमाणित
दिया था?
4) क्या प्रतिवादोी द्वारा उक्त मकान एवं भूमि को खाली करने से इंकार किया हाँ
जा रहा है?
5) क्या वादी वाद ग्रस्त मकान एवं भूमि का रिक्त आधिपत्य प्राप्त करने को हाँ
आधिकारी हैं?
6) सहायता एवं व्यय ? कंडिका २३ के
अनुसार
अतिरिक्त वाद - प्रश्न
7) क्या वादिनी ने ख० नं० 238 रकबा 0. 20 को विधिवत क्रय किया है? प्रमाणित
8) क्या प्रतिवादी वाद भूमि के ख० न० 238 रकबा 0.20 एकड़ पर बिठ्ठल ने प्रमाणित नहीं
जमींदारी उन्मूलन के समय से प्रतिवादी के पिता को निवास व बाड़ी के लिए
दिया था?
8. In order to prove the pleadings, plaintiff had examined as many as three
witnesses and defendant examined as many as three witnesses.
9. The trial Court allowed the suit vide its judgment dated 27.01.2004 and
directed the defendants to vacate the suit property within a period of two
months. Issue Nos.1, 3 & 7 were found to be proved. Issue Nos.2, 4 and 5
were decided in positive. Issue No.7 was not proved. On issue No.6 (relief
and cost) the defendants were to vacate the suit property within a period of
two months.
10. Challenging the same, the first appeal under Section 96 of CPC was filed by
the defendants before the first appellate Court. By the impugned judgment and
decree, the appeal filed by the defendants was allowed and the suit of the
plaintiffs was dismissed. As a result the judgment and decree of the trial Court
was set aside. The same is under challenge before this Court in this appeal.
This appeal was admitted on above-stated substantial question of law and
additional substantial question of law formulated by this Court.
11. Learned counsel for the appellants/ plaintiffs submits that first appellate Court
committed an error in allowing the appeal filed by the respondents/ defendants
by setting aside the judgment and decree passed by the trial Court. He further
submits that the first appellate Court misdirected itself and gave a finding that
the plaintiffs could not have the title over the suit property, therefore, they are
not entitled for grant of decree of eviction against the respondents/defendants.
He further submits that the plaintiffs were able to prove the title on the basis of
preponderance of probability by exhibiting relevant documents particularly
Ex. C/2 (संशोधन पंजी) in which it has been mentioned that the plaintiffs were in
possession of the suit property. Learned counsel for the appellants would
further submit that vide Ex.P/5 the correction in the sale deed which was
executed in the year of 1970 was made, in which Khasra No.525 which has
been mentioned wrongly, was corrected to Khasra No.238. He further submits
that the Khasra No.525 was already sold in the year of 1966. Therefore, it
cannot be sold in year of 1970. For that purposes, the application for taking
additional documents on record was filed which may be treated as application
under Order 41 Rule 27 of CPC and the sale deeds executed in the year of
1970 and 1966 may be taken as additional evidence in this appeal. He further
goes on to submit that substantial question of law and additional substantial
question of law should be decided in favour of the plaintiffs, particularly,
looking to the Ex.P/1 an agreement on the part of the original defendant that
he would vacate the suit premises by 01.01.1988. He further submits that once
the factum of possession was proved by the plaintiffs, the defendants were
stopped from taking a plea of challenge of the title of the plaintiff in light of
Section 116 of the Indian Evidence Act, 1872 (for short 'Act of 1872'). He
further submits that the defendants have claimed their title over the suit
property by virtue of saying that they have received the property from one
Vitthal but no documentary evidence is available to suggest the same. Learned
counsel for the plaintiffs submits that by leading cogent evidence plaintiffs
had proved their title over the suit property and it has also been proved that the
original defendant was given permissive possession for residential purpose,
therefore, the finding of the appellate Court is perverse and contrary to the
record. He further submits that the trial Court gave a categorical finding with
regard to issues No.1 and 3 in favour of the plaintiffs and the same has not
been set aside by the first appellate Court. Therefore, in sum and substance the
substantial question of law and additional substantial question of law which
have been framed by this Court may be decided in favour of the appellant and
appeal may be allowed and the impugned judgment and decree may be set
aside restoring the judgment and decree of the trial Court.
12. To buttress the submission he placed reliance upon the judgment passed by
the Hon'ble Supreme Court in case of Bansraj Laltaprasad Mishra vs Stanley
Parker Jones reported in AIR 2006 SC 3569 in which the Hon'ble Supreme
Court has held in paras 13 to 18 as under:-
"13. It is not in dispute that on 1-5-1971 an agreement
was entered into. What the defendant tried to establish
was that prior to the date of agreement one Shamsher
Khan had put the defendant in possession and therefore
the subsequent agreement with the plaintiff- appellant
was really of no consequence. This aspect was dealt by
the learned single Judge in detail, it was held that the
concept of constructive possession was clearly applicable
even if the defendants' case of Shamsher Khan having
put him in possession is accepted, Illustrations were
given to buttress the Interpretation given. The learned
single Judge. was of the view that the word "possession"
in Section 116, also includes constructive possession.
Unfortunately the Division Benchc has not dealt with this
aspect. It would be relevant at this point of time to take
note of what is stated in Section 116 of the Evidence Act.
The same reads as follows:
"Estoppel of tenant; and of licensee of person in
possession No tenant of immoveatle property, or person
claiming through: such tenant, shall, during the
continuance of the tenancy, be permitted to deny that the
landlord of such tenant had, at the beginning of the
tenancy, a title to such immoveable property, and no
person who came upon any immoveable property by the
licence of the person in possession thereof, shall be
permitted to deny that such person had a title to such
possession at the time when such licence was given."
14. The "possession in the instant case relates to second
limb of the Section. It is couched in negative terms and
mandates that a person who comes upon any immoveable
property by the license of the person in possession
thereaf. shall not be permitted to deny that such person
had title to such possession at the time when such license
was given.
15. The underlying policy of Section 116 is that where a
person has been brought into possession as a tenant by
the landlord and if that tenant is permitted to question the
title of the landlord at the time of the settlement then that
will give rise to extreme confusion in the matter of
relationship of the landlord and tenant and so the
equitable principle of estoppel has been incorporated by
the legislature in the said section.
16. The principle of estoppel arising from the Contract of
tenancy is based upon a healthy and salutory principle of
law and justice that a tenant who could not have got
possession but for his contract of tenancy admitting the
right of the landlord should not be allowed to launch his
landlord in some inequitable situation taking undue
advantage of the possession that he got and any probable
defect in the title of his landlord. It is on account of such
a contract of tenancy and as a result of the tenant's entry
into possession on the admission of the landlord's title
that the principle of estoppel is attracted.
17. Section 116 enumerates the principle of estoppel
which is merely an extension of the principle that no
person is allowed to approbate and reprobate at the same
time.
18. As laid down by the Privy Council in Krishna Prasad
Lal v. Barabani Coal Concern Ltd. (AIR 1937 PC. 251),
"It (Sec. 116) deals with one cardinal and simple estoppel
and states it first as applicable between landlord and
tenant and then as between licensor and licensee, a
distinction which corresponds to that between the parties
to an action for rent and the parties to an action for use
and occupation"."
13. He further placed reliance upon the Judgment passed by the Hon'ble Supreme
Court in the case of Sri S. K. Sharma V. Mahesh Kumar Verma reported in
AIR 2002 SC 3294 in which the Hon'ble Supreme Court has held in Paras 13
to 16 as under:-
"13.Further, the contention of the learned senior counsel
for the respondent that the railway administration has to
prove that the property in question was belonging to it
before invoking Section 138 is totally misconceived
because once it is admitted that respondent was given
possession of the premises in question by order dated 17-
1-1967 as he was entitled for the same while working as
CPRO of the Department, he could not be permitted to
deny the title of the railway administration. Admittedly,
respondent was inducted because he was in railway
service. Now, he is estopped from challenging the title of
the appellant over the premises in question. For this
purpose, we would refer to Section 116 of the Evidence
Act which reads thus -
"116. Estoppel of tenant; and of licensee of person in
possession - No tenant of immovable property or person
claiming through such tenant, shall, during the
continuance of the tenancy, be permitted to deny that the
landlord of such tenant had, at the beginning of the
tenancy, a title to such immovable property; and no
person who came upon any immovable property by the
license of the person in possession thereof, shall be
permitted to deny that such person had a title to such
possession at the time when such license was given"
14. Second part of the aforesaid section clearly provides
that no person who came upon any Immovable property
by the license of the person in possession thereof shall be
permitted to deny the title to such person to such
possession of the property. He cannot deny the same
during the pendency of such license or sub-lease. Such
estoppel continues to operate so long as licensee or sub-
tenant has not openly restored possession by surrender to
such person. This rule of estoppel would cease to operate
only after such licensee or sub- tenant has been evicted.
This position does not require reference to many
judgments. However, we would refer to the decision in S.
Thangappan v. P. Padmavathy [(1999) 7 SCC 474] in
which the appellant tenant who was running an
automobile workshop since 1962 disputed the title of
respondent-landlady on the ground that certain
Devasthanam was the actual landlord. This Court held
that Section 116 of the Evidence Act, 1872 puts an
embargo on a tenant of an immovable property, during
the continuance of his tenancy to deny the title of his
landlord at the beginning of his tenancy. The significant
words under it are 'at the beginning the tenancy. So a
tenant once inducted as a tenant by a landlord, later
cannot deny his landlord's title. However, defective the
title of such landlord may be, such tenant cannot deny his
title.
15. Further in Vashu Deo v. Balkishan [(2002) 2 SCC 50)
the question that came up for consideration before the
Court was-whether a sub-tenant could have directly
attorned to the owner Trust by-passing the tenant? The
Court while rejecting such plea of sub-tenant considered
the provision of Section 116 of the Evidence Act and
held thus:-
".... Section 116 of the Evidence Act, which codifies the
common law rule of estoppel between landlord and
tenant, provides that no tenant of immovable property or
person claiming through such tenant, shall, during the
continuance of the tenancy, be permitted to deny that the
landlord of such tenant had at the beginning of the
tenancy, a title to such immovable property. The rule of
estoppel so enacted has three main features; (i) the tenant
is estopped from disputing the title of his landlord over
the tenancy premises at the beginning of the tenancy, (ii)
such estoppel continues to operate so long as the tenancy
continues and unless the tenant has surrendered
possession to the landlord; and (iii) Section 116 of the
Evidence Act is not the whole law of estoppel between
the landlord and tenant. The principles emerging from.
Section 116 can be extended in their application and also
suitably adapted to suit the requirement of an individual
case. Rule of estoppel which governs an owner of an
immovable property and his tenant would also mutatis
mutandis govern a tenant and his sub- tenant in their
relationship inter se. As held by the Privy Council in
Currimbhoy and Co. Ltd. v L.A. Creet [AIR 1933 PC
29) and Bilas Kunwar v Desraj Ranjit Singh [AIR 1915
PC 96] the estoppel continues to operate so long as the
tenant has not openly restored possession by surrender to
his landlord. It follows that the rule of estoppel ceases to
have applicability once the tenat has been evicted. His
obligation to restore possession to his landlord is fulfilled
either by actually fulfilling the obligation or by proving
his landlord's title having been extinguished by his
landlord's eviction by a paramount title-holder..."
16. In this view of the matter, respondent cannot be
permitted to contend that property was not belonging to
the railway administration. Whether the railway
administration is owner, mortgagee, lessee or licensee is
not required to be decided in such proceedings at the
instances of sub-lessee or licensee of railway
administration."
14. Learned counsel for the appellants further relied upon the Judgment reported
in AIR Online 2024 SC 89 in the case of Government of Goa through the
Chief Secretary V. Maria Julieta D'souza (D) in which the Hon'ble Supreme
Court has held in para 8 as under:-
"8. On law, the position is as follows. There is a clear
distinction between burden of proof and standard of
proof. This distinction is well- known to civil as well as
criminal practitioners in common law jurisprudence.
What Ms. Ruchira sought to point out is that the
documents relied on by the plaintiff did not point out the
existence of title at all. She is right to the extent that no
single document in itself concludes title in favour of the
plaintiff, but this is not an issue of burden of proof. This
is a matter relating to the sufficiency of evidence. While
inquiring into whether a fact is proved3, the sufficiency
of evidence is to be seen in the context of standard of
proof, which in civil cases is by preponderance of
probability. By this test, the High Court has correctly
arrived at its conclusion regarding the existence of title in
favour of the plaintiff on the basis of the evidence
adduced."
15. Mr. Rohit Sharma, learned counsel for defendants submits that the plaintiff has
to succeed on his own strength and not from the weakness of the defence.
Inviting attention of the statement of the plaintiff PW-1, namely, Gangotri Bai
has stated that when she came after marriage, a house in the suit property was
already constructed meaning thereby the possession of the defendants on the
suit property was from the time immemorial. He further submits that though
no reply on application for taking documents on record was filed, however, the
document which are purportedly to be taken as additional evidence in the
appeal is of the year of 1966 and 1970. The suit was filed in the year of 1987
and the appeal was also allowed. After, lapse of so many years, the document
was filed along with the said application could not be taken on record and the
parameters contained in the provision of Order 41 Rule 27 of CPC have not
been meted out by the plaintiff in that application, therefore, the application
may be rejected. He relied on decision of Supreme Court in case of Smriti
Debbarma (Dead) through legal representative Vs. Prabha Ranjan
Debbarma and Others reported in 2022 LiveLaw (SC) 19.
16. I have heard learned counsel for the parties and perused the documents
available on record.
17. The pleadings reflects that the original plaintiff came with a plea that he is the
title holder of property comprised in piece of Khasra No.238 area 0.20 acre out
of which the permission was granted to the defendant to construct a small
Kaccha House being of same caste in respect of 0.03 acre of land which is the
suit property as described in Schedule A, B, C & D. A request was made to
vacate the suit property, the same was denied and therefore, the suit was filed.
18. Issue Nos.1 & 2 were framed with regard to title of the suit property as to
whether the original plaintiff was title holder and the landlord of the suit
property. In this context, a further issue was framed whether the father of
defendants was given the suit property by Vitthal during abolition of malguzari
for residential purpose. The statement of PW-1 was considered in which she
has stated that the dispute is with regard to 0.03 acre of the suit property and
the same is in her name in records of Patwari and prior to it, it was recorded in
the name of her husband and after the death of her husband it was recorded in
her name. She happens to prove Kistband Khatoni (Ex.P-2), Map Ex.P/3 and
Khasra Panchsala Ex.P/4. She has also exhibited the correction deed with
respect to sale deed dated 01.04.1970 as Ex. P/5 in which Kharsa No.525 was
corrected to Khasra No.238. The plaintiff witnesses Model (PW/2) and
Rashadas (PW/3) also stated the same. She denied the fact that the husband
has purchased the Khasra No.525 of area 0.86 dismil. The factum of
possession of suit property was proved by statement of PW-1, PW-2 and PW-
3. The defendant tried to establish that the Kachha house in the suit property
which was made by his father in Kharsra No.238 and also tried to suggest that
the said land was given by one Vitthal to his father as gift, however, he stated
that he has not brought any documentary evidence in this regard.
19. In this context, the recital of Ex. P/1 is necessary to be looked into. Ex.P/1
which is an agreement in which it has been mentioned that the father of
original defendant constructed a house on the suit property. One Bhaiyaram
Satnami sold the suit property to Shatrughan Satnami for about 15 years ago.
20. It further indicates that original plaintiff, namely, Shatrughan Satnami asked
the defendant to vacate the suit property and thereafter stated that by
01.01.1988 he will vacate the suit property. In the statement, he did not deny
the signature but he further stated that the signature was taken forcibly.
21. Apart from this, Ex.P/5 is a correction deed with respect to sale deed dated
01.04.1970 in which Khasra No.525 admeasuring 0.86 decimal was
mentioned was corrected to Khasra No.238 admeasuring 0.20 acre. The
defendant has not challenged the said correction. Though the sale deed dated
01.04.1970 was not filed during the pendency of suit or appeal and the same
was presented before this Court by way of an application to be presented as an
additional document. The plaintiffs by the application for taking documents on
record have annexed the sale deed dated 01.04.1970 in respect of Khasra
No.525 and another sale deed dated 17.03.1966 in respect of Khasra No.525
Area 0.87 decimal. These documents were not filed during pendency of trial
or first appeal. However, these documents are necessary for substantial cause
of justice. Hence the application is treated as one filed under Order 41 Rule 27
CPC and hereby allowed. The documents are taken as additional evidence in
this appeal. Therefore, it can safely be held that the plaintiff has purchased
Khasra No.238 which is the total suit property and out of which 0.3 acre was
disputed, the dispute is between the plaintiffs and the defendants only for
eviction of the suit property. Another important document is Ex.C/2
Sanshodhan Panji exhibited by the trial Court itself in which the clarification
is mentioned that the document where Kharsa No.525 area 0.86 acre is
recorded but the purchaser was in possession of Khasra No.238 area 0.20
decimal. According to the possession, the Khasra number and area was
corrected.
22. Apart from this Ex.P/1 is with respect to Khasra No.238 in which name of
original plaintiff Shatrughan Satnami is recorded as bhoomi swami. This
factum is also proved in Ex.P/2 Kistband Khatoni. After the death of original
plaintiff, namely, Shatrughan Satnami, Ex.P/4 (Panch Shala Khasra) indicates
the recording of the names of plaintiffs in the revenue records.
23. While deciding the issue No.7, trial Court gave a categorical finding with
respect to title of the suit property in his name, no documentary evidence had
been placed on record by defendants to establish their title. By applying the
principle of preponderance of probabilities, trial Court decided the issues in
favour of the plaintiffs.
24. Issue No.8 is with respect to the suit property bearing Khasra No.238
admeasuring 0.20 acre which was given by Vitthal to the father of the
defendant for residence or garden after the abolition of Zamidari System. The
trial Court while deciding the issue gave a categorical finding that to prove this
fact no documentary evidence was presented and no evidence was brought on
record. He further gave a finding that the factum of gifting the suit property
has not been proved, it has further observed that the name of the father of
original defendants was not recorded in the revenue records, in the light of the
provisions contained in Chhattisgarh Land Revenue Code, 1959 and gave a
finding that this pleading is incorrect.
25. The first appellate Court had given much emphasis on the factum of title and
gave a finding that original sale deed by which the original plaintiff purchased
the property from Bhaiyaram has not been filed and also held that the
recording of names of the plaintiffs in the revenue records is on account of
connivance with the Patwari. Further emphasis was also made that the
plaintiffs have not been able to prove the title of suit property in favour of
Bhaiyaram from whom the father of plaintiffs have purchased the suit
property.
26.From the record it is quite vivid that the defendants are in possession of
Khasra No.238 area 0.03 acre out of total 0.20 acre. The total suit property
was purchased by original plaintiff Shatrughan from one Bhaiyaram by a
registered sale deed dated 01.04.1970. However the Khasra No.525 area 0.86
decimal was wrongly mentioned. The same was corrected by correction deed
Ex.P/5. Apart from this revenue documents exhibited clearly envisages that
suit property was earlier recorded in the name of original plaintiff Shatrughan
and thereafter in the name of plaintiff Ganga. The additional evidence in the
form of sale deed dated 16.03.1966 taken in this appeal also proves that the
Khasra No.525 area 0.86 decimal was already sold in the year 1966.
Therefore, it is very clear that by mistake Khasra No.525 area 0.86 decimal
was mentioned in the sale deed dated 10.04.1970 which was subsequently
corrected. Finding of the learned first appellate Court that the plaintiffs could
not prove the title of suit property in favour of Bhaiyaram appears to be
erroneous as the same was purchased by father of plaintiff through a registered
sale deed and correction was also made. Submission of Shri Sharma, Advocate
that plaintiff has to succeed on his own strength cannot hold water as the
plaintiff has successfully proved his case. Rather the defendants have
miserably failed to prove that they have received the suit property from one
Vitthal. With due respect the case law cited by Shri Sharma does not help the
defendants as the plaintiffs by preponderance of probability succeeded on his
own strength to prove the title over the suit property.
27. From the above discussion substantial question of law is decided in positive in
favour of plaintiffs. Additional substantial question of law is decided in
negative in favour of plaintiffs. The impugned judgment and decree dated
08.09.2004 passed by First Appellate Court is set aside and judgment and
decree dated 27.01.2004 passed by trial Court is restored. Appeal thus
allowed.
28. No order as to cost. Decree be drawn accordingly.
Sd/-Sd/-
(Sachin Singh Rajput)
Judge
Saxena/Parul
