Sridhar Appi vs Smt.Padmavathi
2022 Latest Caselaw 4833 Tel

     HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY

                 SECOND APPEAL No.404 of 2014
JUDGMENT :

This appeal is arising out of the judgment dated 18.02.2014

in A.S.No.01 of 2010 on the file of Senior Civil Judge, Narayanpet.

2. For the sake of convenience, the parties are referred to as

arrayed before the trial Court.

3. The appellant is the defendant. Initially, the plaintiff filed

the original suit vide O.S.No.53 of 2000 on the file of Junior Civil

Judge, Narayanpet seeking to declare the plaintiff as absolute

owner of the house bearing No.3-1-34 Patti Bazaar, Narayanpet

(suit schedule property) and further direct the defendant to deliver

the vacant possession of the suit house to the plaintiff.

4. It is pertinent to mention about the relationship of the parties.

The plaintiff is the mother of the defendant. The case of the

plaintiff is that she got married to one Rachappa and they were

blessed with two sons and a daughter and the defendant is her

younger son. Both the sons got married and due to differences

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between the plaintiff and her daughter-in-laws, her elder son

started living separately from the year 1994 and the defendant

drove away the plaintiff at the instigation of his wife from the suit

house which belongs to the father of the plaintiff. It is the specific

case of the plaintiff that her father gave the suit schedule property

under Pasupu Kumkuma at the time of her marriage and later she

got mutated her name in the panchayat records on 09.12.1998.

Since the death of her father, she was in the suit scheduled house

till being necked out by the defendant and therefore, prayed to

grant a decree as prayed for.

5. On the other hand, the defendant filed a detailed written

statement denying the contents of the plaint. It is the specific case

of the defendant that the father of the plaintiff died in the year,

1972 and he alone was residing in the suit schedule property till

1998. It is the specific contention of the defendant that he became

owner and possessor of the property basing on the WILL executed

by late Basanna (father of the plaintiff). The recitals of the written

statement further disclose that Basanna suffered with T.B. and

blood cancer and as the defendant used to look after the medical

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and domestic affairs of late Basanna, he executed a WILL in

favour of the defendant bequeathing all his rights and as such, the

plaintiff cannot seek the relief either for declaration of title or for

injunction and prayed to dismiss the suit.

6. Basing on the pleadings, the trial Court framed the following

issues:-

1. Whether the plaintiff is entitled for declaration as prayed for?

2. Whether the plaintiff is entitled for recovery of possession of the suit house as prayed for?

3. To what relief?

7. On behalf of plaintiff, PWs.1 to 3 were examined and Exs.A-

1 to A-4 were got marked. On behalf of defendants, DWs.1 to 3

were examined and Exs.B-1 to B-3 were got marked.

8. On considering the entire oral and documentary evidence

available on record, the trial Court has decreed the suit declaring

the plaintiff as the rightful/absolute owner of the property and

directed the defendant to vacate and handover the suit schedule

property to the plaintiff not later than 10th March, 2010.

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9. Being aggrieved by the same, the defendant filed an Appeal

vide A.S.No.01 of 2010 to set aside the judgment and decree of the

trial Court. The first appellate Court i.e., Senior Civil Judge,

Narayanpet framed a point for consideration as under:-

"Whether the plaintiff is entitled for declaration as prayed for.?

10. On considering the entire material on record, the first

appellate Court has dismissed A.S.No.1 of 2010 by confirming the

judgment of the trial Court in O.S.No.53 of 2000.

11. Being aggrieved by the judgment and decree in A.S.No.1 of

2010, the defendant/appellant have preferred the present Second

Appeal with the following substantial questions of law:

1.Whether the learned Senior Civil Judge not committed an error of law in decreeing the suit for title and possession, when a contradiction pleas were taken in respect of execution of document under Pasupu Kumkama and succeeded by way of succession. Whether both pleas are not contradictory in naure. Whether such pleas can be accepted without there being any substantial evidence?

2. Whether the learned Senior Civil Judge right in relying on the evidence of Hand Writing Expert who examined as PW-3 when the expert instead of giving the opinion with regard to genuineness of the

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signatures (thumb impression) can give the age of the document having admitted the signature (thumb impression) of the parties, is the expert exceeds his reference, whether such opinion is binding on the Court?

3. Whether the learned Senior Civil Judge not committed an error of law in decreeing the suit disbelieving the plea of the Appellant based on Ex.B1 (Will Deed) observing that it is not proved. Whether the Respondent can succeed the suit on the weakness of Defendant evidence?

4. Whether the entire judgment of court below is not pervert and not basing on the material evidence, whether such judgment is sustainable under law?

12. On perusal of the substantial questions of law as raised by

the appellant herein, this Court is of the considered view that the

same relate to the concurrent findings of fact by both the Courts

below but not on law. The scope under Section 100 of CPC is very

limited. In a Second Appeal, if the High Court is satisfied that the

case involves a substantial question of law, then only, the Court

can interfere with the orders of the Courts below.

13. The learned counsel for the appellant relied on the judgment

of the Apex Court reported in Union of India and Another vs.

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Vasavi Co-operative Housing Society Limited and Others1

wherein the Lordships have held as under:-

"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 probabalises 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 Catholicos v. Thukalan Paulo Avira reported in AIR1959 SC 31 observed that "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:

(2014) 2 SCC 269

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"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."

14. Learned counsel for the appellant also relied on the judgment

of the Apex Court reported in State of Rajasthan And Others vs.

Shiv Dayal And Another2 wherein his Lordships has held as

follows:

"16. When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded de hors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could

(2019) 8 SCC 637

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reasonably have reached. (see observation made by learned Judge Vivian Bose,J. as His Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar & Ors. vs. Dashrath Narayan Chilwelkar & Ors., AIR 1943 Nagpur 117 Para 43).

17. In our opinion, if any one or more ground, as mentioned above, is made out in an appropriate case on the basis of the pleading and evidence, such ground will constitute substantial question of law within the meaning of Section 100 of the Code."

15. The above propositions squarely apply to the present case

but the initial burden is always on the plaintiff to prove his case

and later the onus shifts on to the defendant if a specific plea is

taken by him.

16. It is the urged by the learned counsel for the appellant that as

the plaintiff failed to prove that she acquired the property through

Pasupu Kumkuma, the trial Court ought to have dismissed the suit.

But it is also the specific contention of the defendant that he

became absolute owner of the suit schedule property basing on the

WILL executed by one Basanna, who is none other than the father

of the plaintiff. Admittedly, the said WILL is an unregistered

WILL. Moreover, in order to prove the contents of the WILL, the

attestor has to be examined before the Court.

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17. Section 68 of the Indian Evidence Act, 1872 envisages that

"if a document is required by law to be attested, it shall not be used

as evidence unless and until one of the attesting witness atleast

have been called for the purpose of proving its execution, if there is

an attesting witness alive, and subject to the process of the Court,

and capable of giving evidence.

Provided that it shall not be necessary to call an attesting

witness in proof of the execution of any document, not being a

WILL, which has been registered in accordance with the provisions

of Indian Registration Act, 1908 unless its execution by a person

by whom it purports to have been executed is specifically denied."

18. In the present case, Ex.B-1 is the WILL dated 19.10.1971

which was been marked through the defendant but neither the

scribe nor the attestor of Ex.B-1 were examined before the Court to

prove the contents of the WILL, as per Section 68 of the Indian

Evidence Act. Hence, the trial Court as well as the 1st appellate

Court have categorically concluded that the defendant is not the

absolute owner of the property. Further more, it is the specific plea

of the plaintiff that she got the right over the property by way of

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Pasupu Kumkuma. The oral evidence of PWs.2 and 3 corroborates

the evidence of PW.1 as to the contention of the plaintiff and

Exs.A-1 to A-3 also support the contentions of the plaintiff, which

are relating to the ownership certificate, mutation proceedings n

favour of the plaintiff.

19. Even assuming for a moment that no document as to the

ownership is filed by the plaintiff to prove that she is the absolute

owner of the property it can be construed that being the sole

daughter of Basanna, she becomes the owner of the property by

way of succession from her father even though she did not inherit

the property by way of 'pasupu kunkuma'. It is important to note

that the defendant failed to prove the execution of the WILL,

which is alleged to be executed by their father Basanna in his

favour, the plaintiff herself will be the absolute owner of the plaint

schedule property.

20. In the present case, both the Courts below have given

concurrent finding that the plaintiff is the absolute owner of the

property and the appellant has to vacate the suit schedule premises.

Therefore, on the fact findings, it is not proper to interfere with the

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orders of the Courts below in the absence of substantial question of

law. Therefore, the Second Appeal deserves to be dismissed.

21. Accordingly, the Second Appeal is dismissed at the stage of

admission as devoid of merit, confirming the judgment passed by

the Senior Civil Judge Court, Narayanpet in A.S.No.1 of 2010

dated 18.02.2014. The appellant is directed to vacate the suit

schedule house bearing No.3-1-34 within three (03) months from

today i.e., not later than 22.12.2022 . No order as to costs.

Pending miscellaneous applications, if any, shall stand

closed.

________________________________ G.ANUPAMA CHAKRAVARTHY, J Date: 22.09.2022

dv