JAIRAM VAKTU DHOTE Vs. TUKARAM NARAYAN TIPLE

JUDGEMENT

(1.) By this Second Appeal the original defendant is challenging the concurrent judgments and decrees delivered by the Courts below asking him to deliver vacant possession of suit house to respondents / plaintiffs. The respondents filed Regular Civil Suit No. 92/1981 for possession of suit house on the basis of title by pointing out that they have purchased the suit house on 10.03.1979 from Amrutha Dhondu Dhote and his son for a consideration of Rs. 6000/- and they were placed in possession by said Amrutha and Siddartha. They stated that 8 years before the institution of the suit defendant has taken forcible possession of the suit house. They served legal notice dated 30.09.1980 to the defendant/present appellant, but he refused to accept the said notice. The suit was opposed by the present appellants who contended that Amrutha and his son Siddhartha were not the owner of the suit house. They denied the title of original plaintiffs and they contended that they had been all the while in possession of the said house since their childhood and it was their ancestral property. According to them the alleged sale of ancestral property by Amrutha in favour of respondents did not cloth the plaintiffs with any title. The trial court framed various issues and answered them in favour of the present respondents/original plaintiffs. It therefore decreed the suit on 1.10.1983. Against this judgment and decree, delivered by the 3rd Joint Civil Judge, Senior Division, Chandrapur the present appellant then filed Regular Civil Appeal No.47/1984 before the 2nd Additional District Judge, Chandrapur. The 2nd Additional District Judge, Chandrapur dismissed the appeal on 29.06.1992. Thereafter this second appeal has been admitted on 13.09.1993 by mentioning that ground no.[i] has arisen for consideration. The said ground is about the burden upon the respondents/plaintiffs to establish that their vendor Amrutha Dhote was owner of the suit property.

(2.) In this background I have heard Advocate Shri De, for appellants. He has contended that sale deed by itself cannot cloth the present respondents with any title to suit house because the respondents have not shown that their vendor Amrutha was owner of that property. According to Advocate Shri De, unless and until a valid and marketable title in Amrutha is established, Amrutha cannot transfer the same to the respondents/plaintiffs. It is contended that as such title vesting at Amrutha Dhote has not been established, the courts below have erred in decreeing the suit. The learned counsel has argued that admittedly the present appellants are in possession and hence they cannot be evicted by any person who has no title and their title has to prevail. Reliance is placed upon the judgment reported at AIR 1965 SC 1506 (Brahma Nand Puri .vrs. Neki Puri and others), to contend that the burden in this respect was upon the plaintiffs and plaintiffs have failed as they did not prove the title of Amrutha and therefore their own title. Similarly judgment reported at AIR 1964 SC 136 (A.Raghavamma and another .vrs. A.Chenchamma and another), is pointed out to show that there is distinction between burden to prove and onus of proof. According to Advocate Shri De, onus of proof can only shift, but in this matter as the respondents did not discharge their burden, the suit as filed ought to have been dismissed.

(3.) There cannot be any debate about the law relied upon by Advocate Shri De, in the matter. The question is of its application in present facts. It is no doubt true that the respondents/plaintiffs have admitted possession of the present appellants. However, they have contended that said possession was taken forcibly. The contention of defendant was that suit property was ancestral property and Amrutha Dhote was closely related to them. It appears that Amrutha Dhote was uncle of defendant. The trial court has framed various issues and issue no.2 framed by it is Does the plaintiff prove that defendant illegally occupied the suit house about 8 years before as alleged The trial court has answered the same in affirmative. Similarly, the lower appellate court has framed the following as point no.2 -Whether the plaintiffs prove that the defendant illegally occupied the suit house and the lower Appellate Court has answered it in the affirmative.