Badarappa Vs S.G.Gope Gowdu

PRAYER: Second Appeal filed under Section 100 of Code of Civil Procedure against the judgement and decree dated 11.12.1996 in A.S.No.150 of 1996 on the file of Subordinate Court, Hosur, confirming the judgment and decree dated 18.03.1996 in O.S.No.692 of 1993 on the file of the District Munsif, Denkanikottai.

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For Appellant : Mr.V.Sekar for Mr.C.R.Muralidharan For Respondents 1 & 2 : Mr.G.Vigneswar for Mr.V.Nicholas For Respondents 3 & 4 : No appearance

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JUDGMENT

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The plaintiff appeals. He assails the judgment and decree of

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the learned Subordinate Judge at Hosur in A.S.No.150 of 1996 dated 11.12.1996 in confirming the judgment and decree of the 1/12

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learned District Munsif at Denkanikottai in O.S.No.692 of 1993 dated 18.03.1996. By these two judgments, the trial court as well as the lower appellate court dismissed the suit for declaration of title and for injunction presented by the appellant.

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For the sake of convenience, the parties shall be referred to as per their ranks in the suit.

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The case of the plaintiff is that the larger extent of the suit schedule mentioned property is to an extent of 2 acres. It originally belonged to Dhigganti Malle Gowdu and Kempe Gowdu. Dhigganti Malle Gowdu and Kempe Gowdu was entitled to 1 acre each. Dhigganti Malle Gowdu executed a settlement under a registered settlement deed dated 12.11.1948. Under this document, he gave the property to his sons (i) Doddanu @ Mallaiah, (ii) Jogiappa, (iii) Chikkunnau @ Mallaiah, (iv) Malliah, (v) S.M.Gopiah, (vi) Appoji @ Mallaiah with specific extent.

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Doddanu @ Mallaiah did not have any children, Hence, he adopted, one, S.M.Krishnamoorthy as his son. Appoji @ Mallaiah died unmarried and issueless. The remaining sons of Dhigganti

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S.A.No.495 of 2000

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Malle Gowdu viz., Jogiappa, Chikkunnu @ Mallaiah, Malliah,

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S.M.Gopiah and S.M.Krishnamoorthy, the adopted son of Doddannu @ Mallaiah, executed a sale deed dated 30.03.1983 in favour of the plaintiff. Thereafter, the plaintiff took possession and enjoyment of the same.

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The plaintiff further stated that, of the one acre, which went to the share of Kempe Gowdu, Kempe Gowdu and his brother, Munia Gowdu partitioned the property and Munia Gowdu was allotted half share in the suit schedule mentioned property. This 50 cents, which came to Munia Gowdu, fell to the share of his wife, Devamma, who executed a settlement deed on 15.06.1950 in favour of her daughter, Kenjamma and son-in-law, Somalingappa. Hence, they became the owners of 50 cents in survey No.47/4. They, in turn, sold the 50 cents in favour of the plaintiff, by way of a registered sale deed dated 30.03.1983. As the defendants denied his title and attempted to interfere with his possession, the plaintiff sought declaration of title for 1 acre 50 cents within the specified boundaries in the schedule mentioned property.

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The defendants filed a written statement pleading that, the property belonged absolutely to Kempe Gowdu. They, being the sons and grandsons of Kempe Gowdu, have been in possession and enjoyment of the property after the death of Kempe Gowdu. They pleaded that, Malliah and Munia Gowdu, did not have any right over the property. They also pointed out that between the parties, a suit had been presented earlier in O.S.No.191 of 1983 on the file of the District Munsif Court, Hosur. They pointed out that, they had been in possession of the property by mutating the revenue records in their favour. Therefore, the plaintiff is not entitled to any relief.

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On the basis of these pleadings, the trial court framed the following issues:

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bfk;ngft[L ,UtUkk ; Tl;lhf mDgtpj;J te;jjhy; ; MSf;F 1 Vf;fh; ghjjpag;gl;ljh>

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3/ 12?11?48?y; jpf;tpd;o ky;nyft[L Vw;gLj;jpa jhd brl;oy;bkd;l;l;cz;ikahdjpy;iyah> mJ gpujpthjpfis fl;Lg;gLj;jhjh>

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4/ Kndft[Lf;F 3 kfs;fs;s;Kfk;kh (v) khuk;kh. nfhgk;kh. bf";rk;kh ,Ue;jhh;fsh>

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5/ njtk;kh 15?6?50?y; mth; kfs; bf";rk;kh. kUkfdd ; ; rkg[yp';fg;gh bgaUf;F Vw;gLj;jpa jhd ; brl;oy;bkd;l;l;bry;yj;jf;fjpy;iyah> mJ

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gpujpthjpfis fl;Lg;gLj;jhjh>

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thjp mry ; tHf;F. 191-83?I bjhlh;e;J. mjpy; jil cj;jut[ nfl;l kD js;Sgo bra;ag;gl;ljh> 7/ 1 Kjy ; 3 gpujpthjpfs ; thjp tHf;if thg!; bgw;w gpwF gpuntrpj;jhh;fsh>

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8/ thjpf;F vd;d ghpfhuk; fpilf;Fk;>

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It held that, pending the earlier suit in O.S.No.191 of

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1983, the presentation of yet another suit is abuse of process of the court. Apart from this technical objection, the trial court held that the plaintiff has not let in any evidence to show that his predecessor in title had any right over the property, whereas from Ex.B2, the revenue records, it is clear that Kempe Gowdu had been issued a patta in patta No.65 as early as on 13.02.1945. The trial court also relied upon Ex.B2, another revenue record, to come to a conclusion that the plaintiff had not proved his title over the suit property. On an appeal being filed to the learned Subordinate Judge, Hosur, he agreed with the findings of the learned Trial Judge and dismissed the appeal. Against the concurrent findings of the courts below, the present second appeal has been preferred.

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This second appeal has been admitted by this court on 10.12.2003 on the following substantial questions of law:

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“1.Whether the Courts below are right in rejecting the suit of the Plaintiff without reference to Ex.A.2 and Ex.A.3 registered sale deeds in favour of the Plaintiff in respect of the suit properties, particularly when the Defendants had not adduced any iota of evidence to counter the entitlement of the Plaintiff to the suit properties?

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2. Whether the Courts below had erred in dismissing the suit of the plaintiff for title on the ground that he had failed to establish his lawful possession of the suit properties?”

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I heard Mr.V.Sekar for Mr.C.R.Muralidharan for the appellant and Mr.G.Vigneswaran for Mr.V.Nicholas for the respondents.

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After narrating the facts, Mr.V.Sekar pleaded that both the courts below had failed to see that the plaintiff had purchased the property by way of a registered document from the legal heirs of the other co-owner of Kempe Gowdu, namely, Dhigganti Malle

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Gowdu. This shows that the plaintiff is the owner of the 1 acre of the suit schedule mentioned property. Insofar as the remaining 50 cents claimed by the plaintiff is concerned, he points out that out of the 1 acre which was in possession of Kempe Gowdu, his brother was allotted 50 cents, and thereafter, it fell to the share of his wife, Devamma, who in turn executed a settlement deed in favour of her daughter and son-in-law as early as 15.06.1950. It was this property that was purchased by the plaintiff on 30.03.1983. Hence, he pleads that the learned Trial Judge as well as the learned Appellate Judge ought not to have placed a reliance upon the revenue records and dismissed the suit, especially, when the plaintiff has produced title deeds.

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Per contra, Mr.G.Vigneswaran, arguing for the

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respondents, urged that the respondents have shown that they are in possession of the property for decades. Apart from that, he urged that the plaintiff has to prove his right, title, and interest over the property, and he cannot rely upon the weakness of the case of the defendants to substantiate his plea.

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I have carefully considered the submissions of both sides and have gone through the records.

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It is a settled principle right from the time of Roman law that he, who affirms and not he who denies, must prove his case. This is based on the latin maxim “ Ei qui affirmat, non ei qui negat, incumbit probatio ”. In common parlance, the plaintiff in a suit for title must prove his case. He cannot rely on the weakness of the defendants' title. The plaintiff must succeed on the strength of his claim. The person, who desires that the court should give judgment in his favour, must prove the facts asserted by him.

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In a suit for title, the plaintiff must prove his claim to the property. This is mandated in terms of Section 101 of the Indian Evidence Act. The plaintiff must prove his title independently and cannot use the flaws in the defendants' case as a substitute for establishing his title. If the plaintiff fails to prove his title, the buck stops there and the suit must be dismissed, even if the defendants have no title to the said property. The plaintiff, in a civil proceeding, need not prove his title beyond reasonable doubt. He must establish that, there is a high degree of probability that he is owner of the

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property. It is only when this proof is adduced, does the onus shifts to the defendants to discharge the burden. Merely pointing out to the contradiction or weakness in the defendants' evidence does not entitle the plaintiff to a decree, if the plaintiff has failed to prove his case. If this settled position of law requires a judgment, it is T.K. Mohammed Abubucker v. P.S.M. Ahamed Abdul Khader, (2009) 14 SCC 224 .

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Let us now look at the case of the plaintiff. He alleges that the property belonged to two persons, namely, Dhigganti Malle Gowdu and Kempe Gowdu. It is through the family of Dhigganti Malle Gowdu that the plaintiff claims a right over the property. Absolutely no document worth its salt has been produced to show that the property was originally owned by these two persons. Even if one were to assume that the property belonged jointly to Kempe Gowdu and his brother, Munia Gowdu, the plaintiff has not adduced any evidence to prove that there was a partition between the two brothers and a share with specified boundaries had been allotted in favour of his vendor’s, predecessor-in-title, namely, Munia Gowdu.

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When the basic facts have not been proved, the trial court as well as the lower appellate court had no other option than to hold against the plaintiff. It is true that the defendants have not produced any title deed either, but it is not the defendants, who came forward with the suit claiming title to the property. I have already premised the basic principles relating to the duty of the plaintiff to prove his title and on the futility of relying upon the weakness of the case of the defendant. The courts below might have erred in relying upon the revenue records produced by the defendants to hold against the plaintiff. That does not mean that the plaintiff is entitled to succeed on the basis of such a finding. Since the basic requirements of a suit for title have not been proved, I have no other option, but to agree with the views of the courts below that the plaintiff has failed to prove his case.

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The other document, which the plaintiff relies upon, is a settlement deed. A Settlement deed is not a document of title. A sale deed is a document of title. Unless and until the plaintiff had produced some title deed in favour of Munia Gowdu, to substantiate the flow of title from him to his wife and thereafter, to his daughter and son-in-law, the settlement deed is not much use to the plaintiff.

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Unless and until the plaintiff had produced the full set of title deeds, including the prior title deeds, to trace the ownership back to its origin, thereafter prove the settlement made by Devamma, the court cannot rely upon the said document alone for the purpose of decreeing the suit for title.

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In the light of the above discussion, none of the substantial questions of law framed by this Court arises for consideration in the present appeal. Consequently, the second appeal is dismissed. Cost throughout. The judgment and decree of the learned Subordinate Judge at Hosur in A.S.No.150 of 1996 dated 11.12.1996, confirming the judgment and decree of the District Munsif, Denkanikottai in O.S.No.692 of 1993 dated 18.03.1996 is confirmed.

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04.12.2025

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nl

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Index : Yes/No Speaking order/Non-speaking order Neutral Citation : Yes/No

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To

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1.The Sub Court, Hosur

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2.The District Munsif, Denkanikottai.