Madras High Court
Velammal vs Rajammal on 6 November, 2008
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 06/11/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.466 of 2002 and C.M.P.No.3872 of 2002 1.Velammal 2.Neelavathi ... Appellants/Appellants/ Plaintiffs Vs 1.Rajammal 2.Gnanammal ... Respondents/ Respondents/Defendants Prayer Second Appeal filed under Section 100 of the Code of Civil Procedure, against the judgment and decree dated 10.12.2001 passed in A.S.No.4 of 2001 by the learned Principal District Judge, Ramanathapuram, in confirming the judgment and decree dated 30.11.2000 passed in O.S.No.214 of 1997 by the learned Principal District Munsif, Ramanathapuram. !For Appellants ... Mr.V.Sitharanjandas ^For Respondents... Mr.V.Venkataseshan * * * * * :JUDGMENT
This second appeal is focussed as against the judgment and decree dated 10.12.2001 passed in A.S.No.4 of 2001 by the learned Principal District Judge, Ramanathapuram, in confirming the judgment and decree dated 30.11.2000 passed by the learned Principal District Munsif, Ramanathapuram in O.S.No.214 of 1997, which was a suit for declaration and for obtaining prohibitory and mandatory injunction in respect of two strips of land.
2. The parties, for convenience sake, are referred to hereunder according to their litigative status before the trial Court.
3. A re'sume' of facts absolutely necessary and germane for the disposal of this second appeal as stood exposited from the records could be portrayed and parodied thus:
The plaintiffs filed the suit for declaration of title relating to two strips of land as found described in the schedule of the plaint and for obtaining prohibitory as well as mandatory injunctions, setting out various averments, the gist and kernel of them is that the plaintiffs are the absolute owner of the suit properties and other adjacent properties as found set out in the Rough Plan annexed with the plaint; the first plaintiff is entitled to the area marked as 'GHID' and both the plaintiffs are entitled to the area marked as 'BFEC'; in which the northern portion is under the occupation of the first plaintiff and the southern portion is under the occupation of the second plaintiff; the defendants 1 and 2 are entitled to be in occupation of the area marked as 'HNCI'; in which, the western portion belongs to the first defendant and the eastern portion belongs to the second respondent; while so the first defendant made encroachments in the area to the west of his area into the first plaintiff's portion marked as 'KHIJ' in the plan and the second defendant made encroachments in the area to the east of the area in the second defendant's occupation marked as 'NLMC'. Hence, the suit.
4. Per contra, remonstrating and gainsaying, denying and impugning the allegations/averments in the plaint, the defendants filed the refutatory written statement as well as additional written statement, setting out various averments, the nitty-gritty of them would be to the effect that the plaintiffs are having no right over the suit property; the allegations/averments in the plaint are phantas mogorical and chimerical and unworthy of being believed; they have not been in possession and enjoyment of the suit property; the plaint sketch Ex.A1 is a self-serving one, not backed by any documentary evidence. Accordingly, they prayed for the dismissal of the suit.
5. The trial Court framed the relevant issues. During trial, one Muniyasamy was examined as P.W.1 and Exs.A.1 to A.5 were marked on the side of the plaintiffs and one Gurusamy was examined as D.W.1 and Ex.B.1 was marked on the side of the defendants. Commissioner's Reports and Sketch were marked as Exs.C.1 to C.4.
6. Ultimately, the trial Court dismissed the suit.
7. As against which, A.S.No.4 of 2001 was filed before the learned Principal District Judge, Ramanathapuram, which Court dismissed the appeal, confirming the Judgment and decree of the trial Court.
8. Being aggrieved by and dissatisfied with, the judgments and decrees of both the Courts below, this second appeal is focussed on the various grounds, the warp and woof of them would run thus:
The Courts below failed to take note of the fact that D.W.1 himself admitted that the suit properties and adjacent areas as a whole, originally belonged to the plaintiffs ancestors and in such a case, the Courts were not justified in casting the burden of proof on the plaintiffs to prove the title over the suit property. The Courts below failed to give a finding as to whether Ex.A3 in favour of the defendants' ancestors includes the suit property also. The burden of proof was on the defendants to demonstrate and establish that Ex.A3 covers the suit property, which they failed to prove. The Courts below ignored the fact that Exs.A4 and A5 confer right on the plaintiffs relating to the suit properties, which were not challenged by the defendants. Accordingly, the plaintiffs prayed for setting aside the Judgments and decrees of both the Courts below and for decreeing the Original Suit as prayed for in favour of the plaintiffs.
9. At the time of admitting this second appeal, my learned Predecessor framed the following substantial question of law:
"Whether the findings of the Courts below are vitiated by perversity?"
10. Heard both sides.
11. The quintessence of the arguments as put forth by the learned counsel on both sides would demonstrate and exemplify, highlight and spotlight that the real controversy and apple of discard has given to the following Substantial Question of Law, which they themselves understood and putforth before this Court:
"Whether the burden of proof was on the plaintiff or on the defendants to prove that the suit properties belong to the plaintiffs or the defendants? and that too in the wake of the defendants having pleaded that as per Ex.A3, they are entitled to the suit properties?"
12. The learned counsel for the plaintiffs would submit that both the Courts below were carried away by a some statement made by P.W.1 and failed to hold that the defendants failed to prove that the suit property is covered by Ex.A3, under which their ancestors purchased certain items of properties from the plaintiffs' ancestors.
13. Pulverising and torpedoing the arguments as put forth on the side of the plaintiffs, the learned counsel for the defendants would convincingly and correctly put across the point that the burden of proof is on the plaintiffs to prove the case, which onus would never get shifted to the defendants, unless the plaintiffs discharge their initial burden of proof.
14. Indubitably and indisputably, except Ex.A3, the certified copy of the sale deed, there is no other registered documentary evidence available in this case. Ex.A3 is the certified copy of the sale deed, executed by the plaintiffs' ancestors in favour of the defendants' ancestors and it is quite obvious and axiomatic that it does not in any way prove the plaintiffs claim over the suit properties. The plaintiffs relied on Exs.A4 and A5, the proposed pattas. Both the Courts below are fair with law, correctly held that those pattas would not constitute title and over which there is no quarrel in view of the following decisions of this Court on that point:
(i) Velayudham Pillai v. Sandhosa Nadar and others reported in 1973(1) MLJ
44.
(ii) Kuppuswami Nainar v. The District Revenue Officer, Thiruvannamalai and others reported in 1995 (1) MLJ 426.
15. The aforesaid decisions are to the effect that patta alone would not confer title.
16. In this connection, the decision of this Court in M.E.A.Mohamed Ali and others v. The District Revenue Officer reported in 2005 (4) CTC 9 could fruitfully be referred to. An excerpt from it, would run thus:
"2. The dispute relates to entries in the revenue records. It is well settled that entries in the revenue records does not create or extinguish title nor has it any presumptive value vide M.T.W.Tenzing Namgyal & Ors. v. Motilal Lakhotia & Ors., 2003 (5) SCC 1 : JT 2003 (5) SC 173; Balwant Singh v. Daulat Singh, 1997 (7) SCC 137; and Smt.Sawarni v. Smt.Inder Kaur and others, 1996 (6) SCC 223 : 1996 (7) JT SC 580. Such entries are only for the purpose of payment of land revenue. Hence the parties aggrieved by such entries in the revenue records should get their rights adjudicated in a civil suit. Ordinarily writ petitions should not be entertained against orders for making entries in the revenue records, as such orders do not affect the rights of any one.
3. We make it clear that the impugned judgment of the learned single Judge does not create any right in favour of the parties in that case. We further make it clear that the order of the revenue authorities is not binding in the civil suit, and the Civil Court will decide the rights of the parties independently of the order of the revenue authority."
17. It is therefore clear from the above decisions that patta would not constitute title. However, if there is any evidence, patta would constitute a supportive evidence and independently it cannot be taken as one proving the title of the patta holder over the property concerned.
18. Ex.A3 itself does not contain a proper description of the property sold in it. Hence, an excerpt from it could be extracted here under:
"tpguk; nuhkehjg[uk; $py;yh nuhkehjg[uk; rg;o !;l;ohpf;l;L, mHfd;Fsk; fpuhkj;jpy; bjd;tlByhoa ghijf;Fk; vd;Dila kid fl;ojph;f;F fpHf;F, fUjggKfhe;jh; btd;dpyj;jph;fk; kid fl;olj;jpw;F bjw;F, vd;Dila fy;fpzh; Bjhl;lj;jpw;F Bkw;F, gpr;rag;g Kf;fe;jh; fpiuak; thA;fpa Bjhl;lj;jpw;Fk; vd;Dila kidf; fl;loj;jpw;F tlf;F, njw;Fs;gl;l fhyp kid epyk; fpHBky; fp$k; 28 bjd;tly; fPH; gf;fk; fp$k; 38 i& Bky;gf;fk; fp$k; 19.5..."
19. A bare perusal of it would make the point amply and pellucidly clear that the aforesaid description of the property was a faultive one. Juxtaposing, Ex.A1, the Rough Plan and the description of the property as in Ex.A3, if the matter is viewed, it is palpably and glaringly evident that both do not tally with each other. In Ex.A1 the plaintiffs described the entitlement of the defendants in their own way, which does not fit in with Ex.A3, the sale deed in favour of the defendants' ancestors. At this juncture, the core question arises as to what was the truth involved in the matter, for which there is no adequate evidence. The Commissioner's Report and Sketch, Exs.C1 and C3 in no way enlighten further and help to resolve the controversy involved in this case. At the most, Exs.C1 to C4 could be taken as the ones expatiating and evincing the physical features and nothing more. By mere physical features, the dispute involved in this case cannot be decided as the plaintiffs claim right over the items 1 and 2 of the suit properties, which are two stripes of land and precisely the plaintiffs to get declaratory decree along with prohibitory and mandatory injunctions, should necessarily prove that the plaintiffs are entitled to those strips of land, but there is no evidence, muchless plausible evidence. Put simply, the plaintiffs cannot fob off their responsibility in proving their case on the defendants.
20. The insistence on the side of the plaintiffs that once the defendants have come forward with the specific case that they acquired right over the suit properties under Ex.A3, the burden of proof was on them to prove it and on their failure, the Court should decree the suit in favour of the plaintiffs is neither here nor there, such a plea of the plaintiffs cannot be countenanced. It is a trite proposition of law that the burden of proof is on the plaintiffs to prove their case and they cannot pick holes in the case of the defendants and try to achieve success in the litigative battle.
21. Here apparently the plaintiffs are trying to pick holes in the case of the defendants as the latter have not proved that the two stripes of lands constituting the suit properties belong to them under Ex.A3 and such an approach would be antithetical and quite contrary to law governing the burden of proof I need not dilate further on that as it is a common or garden principle or run of the mill legal principle.
22. It is a peculiar case, in which neither the first plaintiff nor the second plaintiff figured as a witness, but the second plaintiff's husband only appeared as a witness and he deposed and that too as admitted on the plaintiffs' side leaving more scope for controversy and comment in addition to criticism. The trial Court in paragraph Nos.8,9 and 14, enunciate with the facts involved in this case, discussed the evidence and clearly pointed out as to how absolutely there is no clarity in the plaintiffs side evidence and that the plaintiffs also failed to prove, precisely by producing documentary evidence so as to establish their alleged right and title over the suit properties. The trial Court dealt with the arguments submitted on the plaintiffs side, based on measurement of 28 yards from east to west as found exemplified in Ex.A3.
23. The learned counsel for the plaintiffs put forth his arguments that from east to west as per Ex.A3, the defendants ancestors were entitled to 28 yards, whereas the Commissioner's Report would reveal that the compound wall put up by the defendants was beyond 28 yards and that it should be taken that they encroached in to the plaintiffs property. In Ex.C4, the Commissioner's Sketch, the linear distance measuring from 'B' to 'G' constitute 28 yards, whereas the compound wall concerning the second item is found constructed beyond that extent and from that alone, the Court cannot jump to the conclusion that the plaintiffs have proved their case. The plaintiffs should independently prove that the two stripes of land described in items 1 and 2 in the plaint as well as in the plaint plan belong to the plaintiffs and simply by articulate pleas, the plaintiffs cannot try to achieve success in the litigative battle, by spotlighting the defects in the defendants' case.
24. In Ex.A3 as already pointed out supra, the measurements from east to west is simply shown as 28 yards from east to west and it is not shown whether it was 28 yards on the northern side or on the southern side. In the absence of such specification, it cannot be taken that each on the northern side and on the southern side, the extent was 28 yards. Based on the eastern side and western side measurements of 28 yards each and the measurements of 38 yards on the eastern side and 19 yards on the western side, no diagram can be drawn, which would be anywhere near the plaintiffs sketch. The plaintiffs sketch would exemplify as though the defendants ancestors as per Ex.A3 were entitled to 'L' shaped land viz., 'GABNCIH'. It is therefore crystal clear from the above discussion that based on pocucurante pleas and evidence placed on the side of the plaintiffs, no decree could be passed in their favour. Both the Courts below properly based on correct appreciation of factual evidence and law, adjudged the issues and out of which no substantial question of law arose, for being adjudicated in the second appeal. As both the Courts below correctly appreciated the facts and applied the law including the law relating to the burden of proof, their Judgments are not in any way perverse and accordingly the substantial question of law is answered to the effect that there is no perversity in the Judgments of both the Courts below and further the burden of proof was on the plaintiffs only and not on the defendants, nonetheless the plaintiffs failed to discharge it.
25. In the result, this second appeal is dismissed confirming the Judgments of both the Courts below. However, there is no order as to costs. Consequently, connected C.M.P.No.3872 of 2002 is dismissed.
smn To
1.The Principal District Judge, Ramanathapuram.
2.The Principal District Munsif, Ramanathapuram.