Karnataka High Court
K. Ramanathaiah vs Town Municipal Council, Konanur, ... on 15 June, 1998
Equivalent citations: 1999(3)KARLJ697, 1999 A I H C 647, (1999) 3 KANT LJ 697
JUDGMENT
1. The plaintiff is the appellant. The suit for permanent injunction on the basis of the sale deed in favour of the plaintiff in respect of the vacant portion towards north and south of the plaintiff's house came to be decreed by the Trial Court, but on appeal it was dismissed by the First Appellate Court. Hence, the plaintiff is before this Court.
2. To the complaint of disturbance to possession of the plaintiff, the defendant's case was that he is the owner of the vacant site and he has put up the stone pillar and also washing stone as the land was used for Sandal Koti. Consequently, the defendant is in possession and enjoyment of the land.
3. Though the Trial Court accepted the purchase by the plaintiff and his possession, the Appellate Court set aside the judgment. The Appellate Court found that the date of the sale deed itself was not given in the plaint and the title is therefore not disclosed. Ex.P. 6 is the sale deed produced by the plaintiff, which shows that Doddaiah had sold the property mentioned as Schedule in Ex.P. 6. The sale deed shows that a house and some space attached to the house are sold in favour of the plaintiff. The measurements are not given of the vacant space and the house, but the total extent was given as 97 yards x 42 yards. Comparing the evidence given by the plaintiff that the purchase was made from his elder brother while the recital was quite contrary, the Appellate Court has chosen to disbelieve the title of the plaintiff.
4. Holding that the plaintiff has not proved his title over the vacant space, and he has not sought for a declaration, but merely contended that he is in possession, the Appellate Court disbelieved the plaintiffs case. Despite the finding that the defendant has not produced any document to substantiate his case, the Appellate Court held that the plaintiff cannot take advantage of the fact that the defendant has not proved his defence. It is also found by the Appellate Court that "the defendant has not produced any material to substantiate that the vacant space in question is in his possession", but yet chosen to allow the appeal.
5. Such a nebulous judgment does not take us anyway. The plaintiff has come to the Court with a definite case and with a sale deed which is later produced under Ex.P. 6. The measurements are available, though there is no separate measurement for the main building and the vacant space. The title of the plaintiff to the vacant space as well as the property cannot be denied. On the other hand, the defendant claims to be the owner of the property, at the same time the claim is that the property also belonged to the Forest Department. On both the grounds the defendant has failed to prove. So the irresistible inference is that the resistance made by the defendant to the decree as prayed for by the plaintiff, cannot be sustained.
6. Proving away particular case is not always one way traffic. It is no doubt true that the primary burden is on the plaintiff. But once the plaintiff is able to make out his case, the defendant instead of merely finding holes in the case of the plaintiff should also come forward to substantiate his defence and his right to the property, if he has got any. This salient principle should never be forgotten. When a party claims right over the property, he must produce the title deed and prove his right and possession. He cannot simply say that as he is only a defendant he can keep mum and allow the party to prove or disprove his case. In these days of development of law and society, the confidence and character are deteriorated. Nowadays it is necessary for the Courts to consider the claim of each party independent of nature and come to the conclusion whose claim is correct. Mere technicalities of discharging the burden cannot deprive of a person of the lawful right which he is entitled in law, in the absence of any opposition even for namesake.
7. In this view, holding that there is no merit in the defence and holding further that the judgment and decree of the First Appellate Court is perverse and error apparent on the face of the record, the second appeal is allowed, restoring the decree of the Trial Court. The suit is decreed with costs.
8. It is necessary to place on record that the decree of the Appellate Court has been wrongly drawn, which is neither proper nor legal. Anyhow, now the decree is set aside, no further action need be taken to correct the decree.