Madras High Court
Anandhan S/O. Krishnan vs Sri Rangan S/O. Ayyakannu on 11 September, 2024
2024:MHC:3374
S.A.NO.541 OF 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
JUDGMENT RESERVED ON : 23 / 08 / 2024
JUDGMENT PRONOUNCED ON : 11 / 09 / 2024
CORAM:
THE HON'BLE MR.JUSTICE R.SAKTHIVEL
S.A.NO.541 OF 2018
AND
CMP NO.15402 OF 2018
1.Anandhan S/o. Krishnan
2.Krishnan S/o. Muthu ... Appellants /Appellants /
Defendants
Versus
Sri Rangan S/o. Ayyakannu ... Respondent / Respondent /
Plaintiff
PRAYER: Second Appeal filed under Section 100 of the Code of Civil
Procedure, 1908, praying to set aside the Judgment and Decree dated
March 7, 2018 made by the Subordinate Court, Kallakurichi in A.S.No.106
of 2011, which confirmed the Judgment and Decree dated August 2, 2011
made by the Principal District Munsif Court, Kallakurichi, in O.S.No.208
of 2007, by allowing this Second Appeal.
For Appellants : Mr.N.Manokaran
For Respondent : Mr.P.Valliappan
Senior Counsel
for M/s.P.V.Law Associates
JUDGMENT
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S.A.NO.541 OF 2018
This Second Appeal is directed against the Judgment and
Decree dated March 7, 2018, made by the ‘Subordinate Court,
Kallakurichi’ ['First Appellate Court' for short] in A.S.No.106 of 2011,
thereby confirming the Judgment and Decree dated August 2, 2011, made
by the ‘Principal District Munsif Court, Kallakurichi’ ['Trial Court' for
short] in O.S.No.208 of 2007.
2.The appellants herein are the defendants while the sole
respondent herein is the plaintiff before the Trial Court. Hereinafter, the
parties will be referred to as per their array before the Trial Court.
PLAINTIFF’S CASE IN BRIEF:
3.The Suit Property is an extent of 6 Cents (0.02.5 Hectares)
in Old Survey No.107/4, New Survey No.107/9 of Thenkeeranur Village of
the Kallakuruchi Taluk, comprising of a tiled roof house on the west and a
thatched shed on the east. The plaintiff’s father - Ayyakannu owned the
said 6 Cents of land as ancestral property along with some other properties.
Vide registered Partition Deed dated September 11, 2006 executed among
the plaintiff, plaintiff’s father and plaintiff’s brothers, where the said 6
Cents of land was allotted to the plaintiff as ‘B’ Schedule Property.
Revenue records pertaining to the Suit Property which also stands in the
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S.A.NO.541 OF 2018
name of the plaintiff. The defendants have no right or interest in the Suit
Property. While so, on February 18, 2007, using men and money power,
the defendants trespassed and encroached upon the thatched shed, and
erected a mud wall on the property. Hence, the plaintiff has filed this Suit
for Declaration, Recovery of Possession, and Costs.
DEFENDANTS’ CASE IN BRIEF:
4.The defendants filed written statement, wherein it is averred
that the Partition Deed dated September 11, 2006 has not yet come into
force and it is invalid. Total extent of suit survey number is 6 Cents (0.02.5
Hectares). The said extent of land originally belonged to Muthu,
Arumugam, Ayya kutty @ Ayyan and Raman, who were in possession and
enjoyment of it. Then, they orally divided the said extent equally (1.5
Cents each). The second defendant is son of said Muthu while the first
defendant is son of the second defendant. The plaintiff is one of grandsons
of said Arumugam. Ganesan is one of the sons of said Ayyakutty.
Annamalai, son of said Raman, along with his two minor sons, sold the
extent of 1.5 Cents allotted to them in the said Oral Partition, to the
defendants vide Sale Deed dated July 1, 1972. Thus, the defendants are in
possession and enjoyment of 3 Cents of land out of the said extent of 6
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S.A.NO.541 OF 2018
Cents; the defendants have constructed a thatched shed on the property
and have obtained an electricity connection. In a nut shell, out of the said 6
Cents, the defendants are in possession and enjoyment of 3 Cents, while
the plaintiff and Ganesan, son of Ayyakutty, are in possession and
enjoyment of 1.5 Cents each. Hence, the plaintiff is not entitled to the
relief sought for.
TRIAL COURT AND FIRST APPELLATE COURT :
5.Upon hearing either side and perusing the records, the Trial
Court and the First Appellate Court concurrently found that an extent of 6
Cents in Old Survey No. 107/4 (New Survey No. 107/9) along with other
properties was owned by the plaintiff’s father (Ayyakannu son of
Arumugam) as Hindu Joint Family properties; that they partitioned the
properties under Ex-A.1 = Ex-A.8 - Registered Partition Deed dated
September 11, 2006, whereby the said extent of 6 Cents along with some
other properties was allotted to the share of the plaintiff as ‘B’ Schedule
Property; that Ex-A.1 = Ex-A.8 coupled with the revenue records and
electricity receipts standing in the name of the plaintiff, proves his title
over the Suit Property as well as his possession and enjoyment thereof; that
Ex-B.1 and Ex-B.2 are not related to the Suit Property and the defendants’
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S.A.NO.541 OF 2018
case has not been established. Upon these findings, the Trial Court decreed
the Suit as prayed for and the First Appellate Court confirmed the same on
appeal.
SUBSTANTIAL QUESTIONS OF LAW:
6.The second appeal was admitted on September 18, 2018, on
the following substantial questions of law:-
“(i) Whether the courts below are correct in decreeing the suit
for declaration of title on the basis of the revenue records and
by wrongly placing the burden of proof on the defendants
unmindful of the settled principles of law laid down in 2014
(2) SCC 269?
(ii) Have not the courts below erred in decreeing the suit for
larger extent particularly when the plaintiff himself has filed
the suit for one cent in old S.F.No.107/4, New S.No.107/9, by
ignoring the defendants' title and possession over 3 out of 6
cents?
(iii) Whether the judgment and decree passed by the courts
below are perverse for not identifying the extent claimed by
the plaintiff in exercise of the powers conferred under Order
26 Rule 9 CPC either suo motu or at the instance of the
plaintiff?”
ARGUMENTS:
7.Mr. N.Manokaran, the learned Counsel appearing for the
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appellants / defendants would argue that the plaintiff has not established
his title over the Suit Property; that since Ex-A.1 = Ex-A.8 - Partition Deed
does not trace the title to the plaintiff’s father, it cannot be treated as a
document of title; that the defendants are not parties of Ex-A.1 = Ex-A.8
and hence it does not bind the defendants.
7.1. Further would argue that, the plaintiff’s father - Ayya
Kannu, who is the competent person to depose about the Suit Property, was
not examined by the plaintiff; that an adverse inference must be drawn
from his non-examination.
7.2. Further inviting the attention of this Court to the
description of property under the Plaint, he would argue that, it is
misleading and not clear; that, in such a scenario the plaintiff ought to have
identified the site and location of the alleged encroached property with the
help of surveyor which he has failed to do and hence, the decree is
inexecutable.
7.3. Further would argue that it is settled position of law that
the burden of proof is upon the plaintiff, but the Trial Court has
erroneously held that the defendants have failed to prove their case.
Further, the First Appellate Court’s Judgment is not in consonance with
Order LXI Rule 31 of the ‘Code of Civil Procedure, 1908’ ['CPC' for
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S.A.NO.541 OF 2018
short]. Accordingly he prayed to allow the Second Appeal.
7.4. In support of his arguments, he would rely on the
following case laws:
(i) Vasavi case - Judgment of the Hon'ble Supreme
Court in Union of India and Others -vs- Vasavi
Cooperative Housing Society Limited and Others,
reported in (2014) 2 SCC 269;
(ii) Santhosh Hazari’s case - Judgment of the
Hon'ble Supreme Court in Santhosh Hazari -vs-
Purushottam Tiwari (deceased) by LRs, reported in
(2001) 3 SCC 179.
8.Mr. P. Valliappan, learned Senior Counsel appearing for the
respondent / plaintiff, would argue that the Suit Property is ancestral
property qua plaintiff’s father and his descendants; that the same is
fortified by the fact that revenue records pertaining to Suit Property,
namely Chitta Extract and Patta, stood in the name of the plaintiff’s father
before the partition; that Suit Property (ancestral property) along with
some other properties were partitioned among the plaintiff, plaintiff’s
father and plaintiff’s brothers vide Ex-A.1 = Ex-A.8 - Partition Deed,
whereby the Suit Property along with some other properties was allotted to
the plaintiff as ‘B’ Schedule Property; that, thus, the plaintiff has
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S.A.NO.541 OF 2018
successfully traced his title; that Ex-A.1 to Ex-A.16, which includes
revenue records, electricity receipts, etc., coupled with the oral evidence of
P.W.1 and D.W.1, prove the plaintiff’s case.
8.1. Further would argue that, there is no plea regarding Order
XX Rule 9 of CPC in the Written Statement; that the Suit Property has
been described sufficient enough for identification; that Ex-B.1 - Sale
Deed is related to Survey No. 107/5 and Natham Survey No.106/1 while
Ex-B.2 - Gist Receipts pertain to Patta No.342; that Ex-B.1 and Ex-B.2 are
not related to the Suit Property; that the Trial Court and First Appellate
Court concurrently held that the plaintiff proved his case and there is no
need to interfere with the same. Accordingly, he prayed to dismiss the
Second Appeal.
DISCUSSION:
9. Heard on either side and perused the materials available on
record in light of the Substantial Questions of Law.
10. The plaintiff filed a Suit for Declaration and Recovery of
Possession. As per Paragraph Nos.3 and 4 of the Plaint, Old Survey
No.107/4 (New Survey No.107/9) totally comprises of 6 Cents of land.
The plaintiff’s father - Ayya Kannu was ancestrally entitled to the said 6
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Cents of land along with some other properties ancestrally. While so, on
September 11, 2006, the plaintiff along with his father and brother,
partitioned the said 6 Cents along with some other properties vide Ex-A.1
= Ex-A.8 - Partition Deed, whereby the said 6 Cents along with some other
properties was allotted to the share of the plaintiff as ‘B’ Schedule
Property. The said 6 Cents of land has a tiled-roof house on the western
side, where the plaintiff is residing, as well as a thatched shed on the
eastern side. On 18.02.2007, the defendants encroached upon the thatched
shed and constructed a mud wall on it. Hence, the Suit.
11.The Description of Property under the Plaint reads thus:
“brhj;J tpguk;
fs;sf;Fwpr;rp tl;lk;/ bjd;fPuD}h; fpuhk
vy;iyapy;/ fpuhk; ej;jk; giHa rh;nt vz;. 107/4/
g[jpa rh;nt vz;. 107/9/ 0.06 brz;L (0.02.5 Vh;!;)/
,jpy; fPH;g[wk; fp.nk. 20 mo/ bj.t. 18 mo/ Rkhh;
0.01 brd;l; cl;gl ,jpYs;s Tiu bfhl;lif
cs;gl.
rf;Fge;jp:-
thjpapd; kPjp ,lj;jpw;Fk; (fpHf;F) (bjw;F)/
gpr;rd; ,lj;jpw;Fk; (tlf;F) th';;fhu bghparhkp
,lj;jpw;Fk; nkw;F.”
12.It is settled position of law that the Plaint has to be read
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and understood as a whole. Conjoint reading of Plaint Paragraph Nos.3 and
4 along with Plaint Description of Property would clearly reveal that the
plaintiff is residing in the tiled-roof house in Old Survey No.107/4 (New
Survey No.107/9); that on the eastern side of the tiled house, there is a
thatched shed measuring 20 feet from east to west and 18 feet from north
to south; that the defendant encroached upon the thatched shed and erected
a small mud wall therein. This Court does not find any difficulty in
identifying the Suit Property and the alleged encroached portion thereof.
There is no inconsistency with Order XX Rule 9 of CPC, which reads thus:
“9.Decree for recovery of immovable property.— Where
the subject-matter of the suit is immovable property, the
decree shall contain a description of such property
sufficient to identify the same, and where such property can
be identified by boundaries or by numbers in a record of
settlement or survey, the decree shall specify such
boundaries or numbers.”
13. Hence, the contention of the learned Counsel for the
appellants / defendants that the description of property is incorrect and that
the decree is inexecutable does not hold water and deserves to be rejected.
14. Ex-A.6 - ‘Chitta extract for the fasli year 1395 to 1410’
shows that Survey No.107/4 totally consists of 0.02.5 Hectares; that the
said total extent stood in the name of Ayyakannu under Patta No.33; that
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Survey No.107/4 was converted into House Site vide proceedings
m.II.5975/95 dated 07.02.2001. Ex-A.7 - ‘A’ Register also corroborates the
same. Conjoint reading of Ex-A.6 and Ex-A.7 along with the Plaint would
show that the Suit Property was ancestral property in the hands of
plaintiff's father Ayyakannu. In the year 2006, the plaintiff along with his
father and brothers partitioned their joint family properties under Ex-A.1 =
Ex-A.8 - Partition Deed, whereby the Suit Property along with some other
properties was allotted to the plaintiff as ‘B’ Schedule Property. Relevant
portion of Schedule ‘B’ under Ex-A.1 = Ex-A.8 is hereunder:
“. . . fs;sf;Fwpr;rp o fs;sf;Fwpr;rp 1 be rg;o
bjd;fPuD}h; fpuhk vy;iyapy;
ej;jk; rh;nt 107/4 (,J g[jpa rg;otp#d;go 107/9-y;
rk;ke;jg;gl;lJ) mhprd fhydpapy; khhpak;kd; nfhtpy;
bjU uh$ tPjpf;Fk; (fpHf;F) muR FoapUf;Fk;
fhydpf;Fk; (nkw;F) gpr;rd; Tiu tPl;Lf;Fk; (tlf;F)
g{';fhs; kw;Wk; kl;odFwpr;rp nfhtpe;jd; kidf;Fk;
(bjw;F) ,jd; kj;jpapy; 0.06 brz;Lf;F 2616 rJu mo
fhypkid kjpg;g[ - +.162192-00
nkw;go kidapy; Rkhh; 7 Mz;LfSf;F Kd;g[ br';fy;/
brk;kz; bfhz;L fl;lg;gl;Ls;s k';f~h; Xl;LtPLk;
nkw;go tPlhdJ fp.nk. $hjpago 11 bj.t $hjpago 19
rJumo 209 mo cs;s k';f~h; Xl;LtPLk; nkw;go
tPl;oy; ,izf;fg;gl;Ls;s fjt[ mUfhy; cs;glt[k;/
nkw;go tPl;od; fjt[ vz; 3/255 v!;.rp.be.879
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cs;glt[k; . . . ” - 46920-00
15. Ex-A.2 - ‘Patta No.817 dated 07.12.2006’ and Ex-A.3 -
Chitta are issued in the name of the plaintiff under the Natham Land Tax
Scheme. It could be evinced from Ex-A.2 that Old Survey No.107/4 was
converted into New Survey No.107/9 and classified as House Site.
16. Ex-A.4 is the Letter received from the Tamilnadu
Electricity Board with respect to Service Connection No.879 which shows
that the Service Connection No.879 standing in the name of Ayyakannu
was transferred to the name of the plaintiff with effect from 03.03.2007.
17. Ex-A.5 - House Tax Receipt and Ex-A.12 - ‘Electricity
Consumption Receipt for Service Connection No.879’, both standing in
the name of the plaintiff, would establish that the plaintiff is in possession
and enjoyment of the tiled-roof house situate in the Suit Property.
18. Through the above documents viz., Exs-A.1 to A.8 and
A.12, the plaintiff has prima facie traced his title and discharged his initial
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burden to prove that he is entitled to the reliefs sought for. Now, as per
Section 102 of the Indian Evidence Act, 1872, onus would shift onto the
defendants to rebut the case of the plaintiff.
19. The case of the defendants is that Sri Rangan and
Manickam are siblings. Sri Rangan had two sons, Muthu and Arumugam.
Manickam had two sons, named Ayyakutty and Ramam. The second
defendant is Muthu's son, and the first defendant is the son of the second
defendant. The plaintiff is one of the grandsons of Arumugam. Ganesan is
one of the sons of Ayyakutty. Annamalai is Raman's son. The following
genealogy chart helps in better understanding and appreciation of the
defendant’s case:
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20. Further case of the defendants is that Muthu, Arumugam,
Ayya kutty @ Ayyan and Raman collectively owned 6 Cents in Survey
No.107/4 and were in possession and enjoyment thereof. They then orally
divided the land equally among themselves, with each receiving 1.5 Cents.
Annamalai, Raman's son, along with his two minor sons, sold the 1.5
Cents of land allotted to them in the oral partition to the defendants
through Ex-B.1 - Sale Deed dated July 1, 1972. As a result, the defendants
now possess and enjoy 3 Cents out of the 6 Cents of land; they have also
built a thatched shed and acquired electricity connection.
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21. This Court has perused Ex-B.1 - Sale Deed, whereby first
defendant purchased 2 Items. As far as Item No. 1 goes, it is an extent of 3
Cents in Survey No.107/5 within specified boundaries. In Ex-B.1, it is
stated that, Item No.1 thereof is situate on the western side of Ayya
Kannu’s Patta Land. Thus, is it clear that Item No.1 situate in Survey
No.107/5 is different from the Suit Property which pertains to Old Survey
No.107/4 (New Survey No.107/9). As far as Item No.2 thereof is
concerned, it is a House Site in Natham Survey No.106/1 within specified
boundaries. As per D.W.1’s evidence, Item No.2 has now been converted
into Natham Survey No. 296. Thus, Item No.2 is also different from the
Suit Property. At this juncture, it is apposite to refer to a portion of D.W.1’s
evidence extracted hereunder:
“jhth brhj;jpd; giHa g[y vz;. 107/4 g[jpa
107/9 bkhj;jk; 6 brd;l;L tp!;jPh;zk;. nkw;go 6
brd;l;Lf;Fk; nkw;nf rpbkd;l; nuhL cs;sJ. me;j
rpbkd;l; nuhL bjw;fpypUe;J tlf;fhf bry;fpwJ.
mt;thW tlf;nf brd;W khhpak;kd;nfhtpy;
bjUtpy; KofpwJ. khhpak;kd;nfhtpy; bjU vd;gJ
fpHf;F nkw;F vd;gjhFk;. jhth brhj;jhd g[y vz;
107/9 vd;gJ rpbkd;l;nuhl;ow;Fk; fpHf;nf cs;sJ.
rpbkd;l; nuhl;ow;F nkw;fpy; cs;s g[y vz;.106/1.
nkw;go 106/1 vd;gJ jw;bghGJ ej;jj;jpy; g[y vz;
296 vd;W khw;wk; bra;ag;gl;Ls;sJ. vd;Dila
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Xl;LtPL rpbkdl;nuhil xl;o nkw;fpy; cs;sJ. mJ
mz;zhkiy ghfj;ij vd; jfg;gdhh; fpiuak;
th';fp me;j gj;jpuj;ij jhd; gp.rh.M.1 Mf jhf;fy;
bra;Js;nsd;. vd;Dila Xl;LtPl;od; g[jpa g[y
vz;. 296/8 vd;why; mJgw;wp vdf;Fj; bjhpahJ.
v';fs; Xl;LtPl;il xl;o bjw;fpy; cs;s ,lk;
thjpapd; jfg;gdhh; ma;ahf;fz;Dtpd; ,lk;
vd;why; rhpjhd;. Xl;LtPl;ow;Fk; tlf;fpy;
khhpak;kd; nfhtpy; bjU. mz;zhkiy ghfj;jpy;
fpiuak; th';fpa ,lj;jpy; jhd; ehd; Xl;LtPL fl;o
FoapUf;fpnwd;. . . . ”
D.W.1 further deposed :
“. . . me;j Xl;LtPl;oy; thjpjhd; jw;bghGJtiu
FoapUe;J mDgtk; bra;JtUfpwhh;. nkw;go
Xl;LtPl;ow;Fk; fpHf;fpy; cs;s ,lk;jhd; jhth
brhj;J MFk;. jhthbrhj;jpy; Vw;fdnt xU
Tiubfhl;lha; ,Ue;jJ. nkw;go Tiubfhl;lhapy;
Rw;wpYk; 2007 gpg;uthpapy; eh';fs; Rtu; itj;njhk;.
mJ kz; Rtu;. mt;thW kz; Rtu; itg;gjw;F
Kd;g[k; mjpy; Rtu; ,Ue;jJ. 2007 gpg;uthpapy; jhd;
Kjd; Kjypy; Rtu; itj;njhk;. jhthbrhj;jpw;F vd;
bgahpnyh/ vd; jfg;gdhh; bgahpnyh gl;lh ,y;iy.
ehd; jhf;fy; bra;Js;s tha;jh urPJfs; v';fs;
fpiuajhuhh; fpU#;zdpd; bgahpy; cs;sJ. nkw;go
urPJfs; mtuJ gl;lh epyj;jpw;F chpaJ vd;W
brhd;dhy; vdf;Fj;bjhpahJ. mjpy; gl;lh bek;gh;
342 vd;W brhy;yp cs;sJ vd;W brhd;dhy;
vdf;Fj; bjhpahJ. fpU#;zDf;F taf;fhl;oy;
epy';fs; cs;sd. nkw;go urPJfs; me;j epyj;jpw;F
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itf;fg;gl;litah vd;why; vdf;Fj; bjhpahJ.
rhl;rp kPz;Lk; TWfpwhh; nkw;go urPJfs;
fpU#;zd; g[ifapiy njhl;lk; bfhy;iyapl;L
itf;fg;gl;lit. nkw;go bfhy;iya[k;/ murh';fk;
Mh;$pjg;gLj;jp epiwa ngUf;F gl;lht[k;
bfhLj;Jtpl;lhh;fs;. nkw;go g[ifapiy
njhl;lf;bfhy;iy vd;gJ ntW/ jhth brhj;J ntW.
ehd; brhy;yp cs;sJnghy; |u';fk;/ khzpf;fKk;
g';fhspfs; vd;W fhl;l vd;dplk; Mjhuk; vJt[k;
,y;iy. ehd; vd;Dila Kjy;tprhuizapy;
brhy;yp cs;sJnghy; tha;bkhHpg; ghfg;gphptpid
ahh;/ ahh; bra;Jbfhz;lhh;fs; vd;W
vdf;Fj;bjhpahJ. mJ vg;bghGJ ele;jJ vd;Wk;
vdf;Fj;bjhpahJ. mg;bghGJ gpr;rd; vd;gtUk;/
gpr;irf;fhud; vd;gtUk;/ uhkrhkp vd;gtUk;
,Ue;jdh;. me;j tha;bkhHpg;ghfg;gphptpid ve;j
tUlk; ele;jJ vd;W bjhpahJ. . . .”
21.1. Therefore, it can be concluded that the properties
covered under Ex-B.1 are completely different from the Suit Property.
22. Ex-B.2 - Gist Receipts pertain to Patta No.342. Whereas
Suit Property’s old Patta Number is 33 and new Patta Number under
Natham Land Tax Scheme is 817. Hence, it also does not relate to the Suit
Property.
23. Defendants’ documents viz., Ex-B.1 and Ex-B.2 do not
relate to the Suit Property. There is no other evidence on record to support
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the defendants’ case. The defendants have neither successfully rebutted the
case of the plaintiff nor have they proved their case. Hence, they have
failed to discharge the onus casted upon them, which means the plaintiff
has successfully proved his case and is entitled to the reliefs sought for.
24. In Vasavi case (supra), Hon'ble Supreme Court in
Paragraph Nos.15 to 19 has discussed the legal position about burden of
proof in a Suit for Declaration of Title. Relevant extract is as follows:
“15. It is trite law that, in a suit for declaration of title,
burden always lies on the plaintiff to make out and establish a
clear case for granting such a declaration and the weakness, if
any, of the case set up by the defendants would not be a ground
to grant relief to the plaintiff.
16. The High Court, we notice, has taken the view that
once the evidence is let in by both the parties, the question of
burden of proof pales into insignificance and the evidence let in
by both the parties is required to be appreciated by the court in
order to record its findings in respect of each of the issues that
may ultimately determine the fate of the suit. The High Court
has also proceeded on the basis that initial burden would
always be upon the plaintiff to establish its case but if the
evidence let in by defendants in support of their case
probabilises the case set up by the plaintiff, such evidence
cannot be ignored and kept out of consideration.
17. At the outset, let us examine the legal position with
regard to whom the burden of proof lies in a suit for declaration
of title and possession. This Court in Maran Mar Basselios
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Catholicos v. Thukalan Paulo Avira reported in AIR1959 SC 31
observed that:
“20... in a suit for declaration if the plaintiffs
are to succeed, they must do so on the strength of
their own title.”
18. In Nagar Palika, Jind v. Jagat Singh,
Advocate (1995) 3 SCC 426, this Court held as under:
“The onus to prove title to the property in
question was on the plaintiff. . . . In a suit for
ejectment based on title it was incumbent on the part
of the court of appeal first to record a finding on the
claim of title to the suit land made on behalf of the
plaintiff. The court is bound to enquire or investigate
that question first before going into any other
question that may arise in a suit.”
19. The legal position, therefore, is clear that the
plaintiff in a suit for declaration of title and possession could
succeed only on the strength of its own title and that could be
done only by adducing sufficient evidence to discharge the onus
on it, irrespective of the question whether the defendants have
proved their case or not. We are of the view that even if the title
set up by the defendants is found against, in the absence of
establishment of plaintiff’s own title, plaintiff must be non-
suited.”
(Emphasis supplied by this Court)
24.1. In the instant case, as discussed supra, the plaintiff has
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S.A.NO.541 OF 2018
prima facie proved his case by adducing material evidence and discharged
the initial burden casted upon him, thereby shifting the onus onto the
defendants. Hence, though Vasavi case is squarely applicable to the instant
case, it would not come to the aid of defendants.
25. There is no quarrel with the legal proposition laid down in
Santhosh Hazari’s case. This Court perused the First Appellate Court’s
Judgment and finds that the First Appellate Court has applied its mind,
framed four points for consideration and answered all of them with
appropriate reasons concurring with the Trial Court’s findings. In such a
scenario, merely because the First Appellate Court concurred with the Trial
Court’s findings, it does not mean non-application of mind. Hence,
Santhosh Hazari’s case would not help the defendants.
26. As far as the contention of the learned Counsel for the
appellants / defendants with respect to non-examination of the plaintiff’s
father, the plaintiff has established his case through examining himself as
well as through other oral and documentary evidence and therefore, there
was no need to examine his father, who is not a party to the Suit. The
Plaintiff, who is the dominus litis, can exercise discretion as to who is to be
examined to prove his case. Further, if really examining the plaintiff’s
father is that crucial, the defendants could have very well summoned the
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S.A.NO.541 OF 2018
plaintiff’s father and examined him either as witness on their side or as
court witness after obtaining due leave; but they did not do so. Hence, this
Court does not find any infirmity with the non-examination of the
plaintiff’s father and therefore, there shall be no adverse inference drawn
therefrom.
27. Thus, the Trial Court and the First Appellate Court were
right in concurrently holding that the plaintiff proved his title over the Suit
Property as well as his possession and enjoyment thereof. Thus, they are
right in decreeing the Suit as prayed for. Therefore, no interference is
warranted.
28. In light of the foregoing narrative, the Substantial
Questions of Law are answered accordingly in favour of the respondent /
plaintiff and against the appellants / defendants.
RESULT:
29. Resultantly, the Second Appeal is dismissed. Considering
the facts and circumstances, there shall be no order as to costs.
Consequently, connected Civil Miscellaneous Petition is closed.
11 / 09 / 2024
Index : Yes
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S.A.NO.541 OF 2018
Internet : Yes
Neutral Citation : Yes
Speaking order
TK
To
1.The Subordinate Judge
Subordinate Court
Kallakurichi.
2.The Principal District Munsif
Principal District Munsif Court
Kallakurichi.
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S.A.NO.541 OF 2018
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S.A.NO.541 OF 2018
R.SAKTHIVEL, J.
TK
PRE-DELIVERY JUDGMENT MADE IN
S.A.NO.541 OF 2018
11 / 09 / 2024
https://www.mhc.tn.gov.in/judis
