PACHI AMMA Vs. KATHIJA UMMAL

JUDGEMENT

(1.) The deceased plaintiff purchased the two items of properties in suit, from the deceased defendant by sale deed Ext. A, dated the 23rd April, 1951. The dispute related only to item 2 of the suit properties, which may be referred to hereafter as the suit property. Ext. A purported to convey the full proprietary interest in the suit property, including possession, to the plaintiff. The defendant professed to obtain title to it by Ext. B sale deed of the year 1946 in his favour, which purported to be executed by three persons. The plaintiff alleged, that at the time Ext. A was executed, the defendant represented to her, that the suit property was being cultivated by Dw. 2 on pathivaram, that he then undertook to recover the property and put her in possession, but did not do so, that Ext. B itself had been set aside in O. S. 122 of 1952 to which both of them were parties and that she has no title. She has therefore sued for damages, being the proportionate consideration paid under Ext. A for the suit property and interest thereon. The defendant denied that he made the representation, or gave the undertaking as alleged, and maintained that both title and possession had passed under Ext. A. The first court found, that the plaintiff had neither possession nor title and gave decree in terms of the plaint, but on appeal the Subordinate Judge came to the conclusion, that the plaintiff had been put in possession, and that though Ext. B had been set aside, as she has not been dispossessed she is not entitled to recover damages, and dismissed the suit. The plaintiff preferred this second appeal, pending which she died and her legal representatives have come on record as additional appellants. The defendant also having died after the disposal of the appeal by the Subordinate Judge, his legal representatives were impleaded as the respondents in second appeal.

(2.) The first question for consideration is, whether the plaintiff has proved that she was not put in possession of the suit property. There is no acceptable proof in support of the allegation in the plaint, that the defendant made a representation, that Dw. 2 was in possession of the property and gave an undertaking that he would recover and put the plaintiff in possession. On the contrary, the recitals in Ext. A are clear, that possession was also conveyed thereby to the plaintiff. The burden is all the greater on the plaintiff to prove, that she had not been put in possession. The plaintiff made no attempt to examine the person who according to her was in possession, and the defendant examined him as Dw. 2. Though in chief examination he said that he is in possession of the property, in cross examination he admitted, that he has no idea of the property at all; this has rendered his evidence valueless.

(3.) One Bhaskara Kurup who purported to be one of the executants of Ext. B, instituted O. S. 122 of 1952 for declaring that Ext. B was not executed by him and that it was unsupported by consideration. To this suit, the plaintiff as well as the defendant were parties and a decree was passed setting aside Ext. B, Ext. C being the judgment in it, dated the 22nd June, 1953; Ext. C is final. In that suit the allegation of Bhaskara Kurup was, that he was in possession of the suit property, notwithstanding Ext. B. Neither the plaintiff nor the defendant disputed the truth or correctness of that allegation, and they suffered the suit to proceed ex parte against them. The theory that Bhaskara Kurup was in possession does not fit in with the theory of the plaintiff, that Dw. 2 was in possession. The plaintiff, while here self giving evidence as pw. 1, made such inconsistent and contradictory statements that it is impossible to place any reliance on her evidence. In this state of the evidence it is not possible to hold, that the plaintiff has discharged the burden of proving, that she had not been put in possession of the property.