K SUBBAMMA Vs. M PENCHALAIAH

JUDGEMENT

(1.) DEFENDANTS have filed this second appeal under the following circumstances. Plaintiff filed O. S. 168/68 against the defendants for declaration of his title to house site situate in the north and west of defendants land. According to him he had purchased it under three sale deeds Exs, A-2, A-3 and A-4.

(2.) DEFENDANTS filed their written statement and denied the plaintiff's title and claimed that they are the owners of the land situated in the north and west of their land. The learned trial Judge found that the plaintiff had not established his title therefore dismissed the plaintiff s suit. Plaintiff appealed to the District Court against the decree of the trial Court. The learned appellate Judge pattly allowed the appeal and passed in favour of the plaintiff decree for a part of his claim. It is the appellate decree which is challenged by the defendants in this second appeal: Burden of proving his title in [lieu upon the plaintiff who asserts it. Paragraph 8 of the appellate Judgment shows that the boundaries shown in the old documents, which the parties produced, did not admittedly exist. Secondly he found that the parties to the suit were not parties to those documents. Thirdly he observed that none was personally aware of the transactions and the recitals made in the documents and of the physical features of the land in question. He therefore thought that the old documents upon which parties placed reliance did not throw any light on the question of plaintiff's title to the land in question. So far as oral evidence was concerned he recorded the conclusion that in light of oral evidence the description of the boundaries given in old documents was not correct. He next observed that except P. W. 2 none of the parties had any personal knowledge of the physical features of the land in dispute and that therefore no reliance could be placed upon the oral evidence of the parties. Next he observed that no attempt was made by either side before the trial court to locate the respective bites purchased by each of the parties under various sale deeds ana to prove their identity and extent. It is clear from these observations made by the learned appellate Judge that the plaintiff had failed to locate the land which he had purchased and to which he was claiming title to determine its identity and extent. Having recorded these conclusions the only source open to him was to dismiss the plaintiff's suit. Whether the defendants proved their title or not was immaterial. Plaintiff cannot get declaration of his title merely because defendant has failed to prove his. Burden of proving title which the plaintiff claims lies on him and if he fails to discharge that burden his suit must fail irrespective of whether the defendant has proved his title to the land in question or not. However, the learned appellate Judge went a step further and appointed a Commissioner to locate various plots and to fix up their boundaries and extents. Ihs Commissioner entered upon the task entrusted to him and with the assistance of licenced surveyors he fixed up survey stones and located various pjots. It is also observed in the appellate Judgment that he then found the extent of the lands shown in the title deeds produced by the parlies and filed in Court. What the learned appellate judge did was to treat the Commissioner's repoit and plan as substantive evidence for the purpose of determining the identity and extent of land. In my opinion he could not nave done so. The report of the commissioner does not have any evidentiary value except to show what he saw on the site when he inspected it. Except wnat he personally saw existing on the site at the time when he inspected the land no other fact with reference to the report can be pioved. becoudly the commissioner's report is not regarded as a substantive evidence. The commissioner's repoit can be used only for the limned puipose ot appreciating me evidence which the parties have led with reference to wnat he personally saw on the site when he inspected the land. It can never prove the or possession. In the instant case the learned appellate judge disbelieved the enure evidence led by the plaintiff and the defendants and tound that the documentary evidence produced by the parties did not throw any light on the controversy between the parties. Therefore, no use whatsoever of the Commissioner's report could have been made. It he had believed some evidence produced by the parties then the use ot the commissioner's resort could have been made for appreciating that evidence. In the instant case after having disbelieved the entire evidence produced by the parties the learned judge proceeded to make use of the commissioner's report treating it to be substantive evidence. Tne reasoning which he adopted thereafter was quite strange and unparallelled. He overlooked the fact that what was noted in the Commissioner s report was not gospel truth and could not be said to be necessarily correct because there was no reliable substantive evidence before him. He compared the boundries in the sale deed B-10 with what was stated in the Commissioner's report and plan and recorded the conclusion as to what extent of land the defendants had purchased. He on that basis determined that the defendants had purchased three Ankanams of land and that they had been claiming four Ankanams of land. He therefore came to the conclusion that one Ankanam belongs to the Plaintiff. This was a very strange and curious reasoning. His reasoning shows that what the defendants did not prove to be theirs belonged to the plaintiff. I am not aware of such judicial reasoning. Irrespective of whether the defendant is able to prove that a particular extent of land belongs to him or not the plaintiff must prove his title to the land which he claims to be his. Having perused the document Ex. B-10 with the commissioner's report and plan the learned appellate Judge came to the conclusion that the defendant had encroached upon one Ankanam of land on the plaintiff's site and then jumped to the conclusion that it belonged to the plaintiff. He has made additions and deductions to come to that conclusion which have no value whatsoever. Then with regard to another site he has recorded his conclusion that it was found to be 2.44/72 Sq. Ft. which was far in excess of the site purchased by the defendants under Ex, B-1. He therefore concluded that what the defendants had not proved to be theirs belonged to the plaintiff. The next reasoning which he has adopted is that if what the defendant has encroached upon is excluded from the total area, conclusion can be recorded to show what would be under the occupation of the plaintiff. He therefore recorded the conclusion that since the defendants have failed to prove their title or possession to the disputed land the plaintiff has proved it and that the plaintiff has been in enjoyment and possession thereof since the date of its purchase by him. The appellate decree passed by him therefore suffers from two vital infirmities which, in the facts and circumstances of the case, cannot be cured. He has made substantive use of the Commissioner's report which he could not have done. As observed above, the Commissioner's report has no substantive evidentiary value whatsoever. The only value which can be attached to it lies in what be saw on the land when he inspected that land. Having disbelieved the entire oral and documentary evidence he ought not have ventured upon appointing a commissioner and going through the exercise of making additions and deductions of what belonged to the defendant and what belonged to the plaintiff simply because the defendants had failed to prove their title to it. Secondly he was basically and fundamentally in error in recording the conclusion that merely because defendants have failed to prove their title to the part of the land which they claim, it belongs to the plaintiff. I am not aware of any such judicial reasoning in our system of law. His judgment clearly shows that the plaintiff has dismally failed to prove his title to the land whose identity and extent he could not establish with reference to the documentary or oral evidence. When such was the case, the learned appellate Judge ought to have dismissed the suit because he had no other alternative except to dismiss the suit. Therefore the appeal is allowed with costs and the decree passed by the Lower Appellate Court is set aside. For the reasons recorded by me in this judgment and not for the reasons recorded by the learned Trial Judge, the decree passed by him is restored. M.S K.S. S.A. Allowed.