ETTIYAPPAN Vs. P.DHANABAGYAM

JUDGEMENT

(1.) According to the petitioner, the respondent has filed a suit in O.S.No.488 of 2010 before the Sub Court, Tambaram. Written statement was filed on 5.9.2011 by the petitioner/Defendant. Plaintiff's side evidence was closed. After examination of D.W.1, the suit was posted for further evidence of the defendant on 16.6.2017. At this stage, the petitioner has filed an application in I.A.No.427 of 2017 under 75 of Civil Rules of Practice to cause production of (i) Settlement A Register from the year 1943, (ii) Adangal from 1943, (iii) F.M.B. with sub division particulars of S.No.8/2, Kovilampakkam Village, Tambaram Taluk. The court below recorded a finding that the revenue records sought for in the present application is very much available in O.S.No.487 of 2010 on the file of the court below. In the written statement filed by the defendant/petitioner herein, petitioner did not dispute the pendency of another suit in O.S.No.487 of 2010. In the said suit, Advocate Commissioner has filed a report along with the Surveyor report with revenue records which clearly states about the sub division of S.No.8/2 taken place four decades ago. In order to prove title, the respondent/plaintiff produced patta Ex.A4 in the main suit and the petitioner herein admitted during the course of deposition deposed that the present suit is for the property situated at S.No.2/A7 and the property in S.No.8/2 is the property of the petitioner herein. Since the relevant records are available in O.S.No.487 of 2010, the present application cannot be considered at the belated stage of the suit. Challenging the said order, the revision petitioner/defendant has preferred the present civil revision petition before this Court.

(2.) According to the petitioner, plaintiff has not filed any of the original title deeds mentioned in the plaint at the time of institution of suit. She has filed only sale deed, dated 5.2.1991 executed in favour of said Muralidharan and settlement deed, dated 12.11.2009 executed in favour of the plaintiff. According to the petitioner, plaintiff predecessor in title namely first owner Rajarathina Mudaliyar has no right to execute any sale deed in respect of the suit property. In order to prove that the plaintiff predecessor in title has no title to suit property, he filed the instant application to cause production of revenue records pertains to 1943, because Rajarathina Mudaliyar has claimed title to suit property only based upon revenue record and not on any independent registered title deed. Relying upon the Commissioner report filed in another suit, the court below erroneously dismissed the instant application. According to the petitioner, Rule 75 confers powers to civil court to summon official documents for production to the court to adjudicate any matters or issues in controversy before the Court in a civil suit. The learned counsel for the petitioner relied on the decision of this Court in S.Kuppusamy v. Vengatesan [C.R.P.(PD) NO.3740 OF 2008, Dated 23.1.2009] to contend that the Court can entertain the application filed under Rule 75 of Civil Rules of Practice to summon the revenue records even in the absence of filing of application for issuance of certified copy to the concerned authority. The learned counsel for the petitioner also relied upon the decision of this Court In R.Ravi v. I.Pandiyarajan [2007(4) CTC 133] to contend that it is always open to the parties to choose their own witnesses to examine so as to prove their case and it cannot be prevented by other party by stating that the petitioner is trying to bring some irrelevant evidence. The learned counsel for the petitioner also relied upon the decision in T.Chandrakala v. Palaniammal 4 Others [2011(2) MWN Civil 426] to contend that the public authority can be summoned to give evidence in the civil suit along with connected records to adjudicate controversies involved in the suit. The revision petitioner came to know about the defect in title of plaintiff predecessor in title only after completion of plaintiff side witnesses and further, trial was taken up only in the year 2017 and the petitioner has filed the instant application before closure of evidence, therefore, there is no inordinate delay. When the defendant has set up a different title and disputed the very title of the plaintiff, burden of proof shift on the defendant to disprove the plea set up by the plaintiff. Therefore, the order passed by the court below is perverse and the same is liable to be set aside.

(3.) According to the learned counsel for the respondent, the court below has rightly dismissed application by holding that the application filed by the petitioner is at belated stage i.e. after seven years to prolong the trial. The revenue records as sought for the by the petitioner is very much available before the court. According to the learned counsel for the respondent/ plaintiff, burden of proof lies on the plaintiff to prove her case and there is no need for the defendant to prove negative. Suit is pending for the past seven years. Petitioner has filed the instant application with an intention to prolong the disposal of the suit. Twin requirement of Rule 75 of Civil Rules of Practice has not been complied with as nowhere in the affidavit the petitioner has stated that he applied for certified copy of the documents for which he relied on the decision reported in (2015 (2) L.W. 460). The petitioner/ defendant neither denied the source of title pleaded in para 5 of the plaint nor he filed a list of witnesses in the written statement as per Order 16 Rule 1 (1) C.P.C. Therefore, the Civil revision petition is liable to be dismissed.