LALITA JAMES Vs. AJIT KUMAR

JUDGEMENT

(1.) This is defendants' first appeal u/S.96 of the Code of Civil Procedure, against the judgment and decree dated 6-5-1985 passed by Shri A.N. Thakur, VIth Additional Judge to the Court of District Judge, Jabalpur, in Civil Suit No. 2-A of 1978, directing them to deliver vacant possession of area 36885 sq. ft. of land of plot No. 434, Gorakhpur, Jabalpur together with costs.

(2.) The facts of the case tell the unfortunate history of family feud and love. Labourlost between two sisters. One Shir P.S. Chouhan, an Indian Christian, admittedly owned vast properties including houses, out-houses and 5.74 acres of open land at Gorakhpur, Jabalpur. He was unmarried and issueless and, therefore decided to give-away the said properties to his two sisters, Mrs. Dayabai Lakshmanan and Mrs. Grace Pritabai Morris, in equal shares and for that purpose executed a registered gift deed on 8-4-1935. Mrs. Dayabai Lakshmanan is now survived by appellants Nos. 2, 3 and 4 while Mrs. Grace Pritabai Morris is survived by appellant No. 1 and respondent No. 3, her two daughters. There had been no partition between two sisters of Shri P.S. Chouhan and, therefore, the properties continue to be joint and undivided between them. It, however, appears that two daughters of Mrs. Grace Pritabai Morris i.e. appellant No. 1 and respondent No. 3 partitioned their shares after her death. Partition deed (Ex. D/3) gives her entire share in 5.74 acres of agricultural fields to the appellant Mrs. Lalita James. It, however, appears that the arrangement contained in this deed was subsequently amended by partition-agreement (Ex. P-4) whereby 27662 sq. ft. to the West and 36885 sq. ft. to the North of plot No. 434 was given to respondent No. 3 Mrs. O.N. Park. In this agreement it was specifically mentioned that a portion of plot No. 434 had been jointly sold by two sisters on 7-6-1950 who have also shared the sale proceed by mutual agreement. After this agreement the respondent No. 3 had been selling her share to various parties. She sold 27662 sq. ft. situate at the Western side of the plot No. 434 to Kailash Housing Co-operative Society on 21-1-1963. She also sold 36885 sq. ft. situated at the North of plot No. 434 to respondent No. 2 on 10-8-1964 for a valuable consideration of Rs. 14,000/- by registered sale-deed. The sale-deed has not been filed or exhibited, and therefore, it is not possible to ascertain details thereof. It appears that a true-copy of the sale-deed was filed before the trial Court on 17-11-1971 and the same is available at pages 87 to 89 to file C-2 of the trial Court. From the aforesaid sale-deed, it appears that sold piece of land measuring 36885 sq. ft. is a part of plot No. 434 bearing the present plot No. 434/5, Mouza Gorakhpur, Jabalpur. From the descriptions of the sold plot given in the sale-deed, it appears that it is, surrounded by diversion plots Nos. 276, 277, 278 and 279 on the North; open land of Mrs. Lalita James at the South-West; quarters of Mr. Shriyastava, Ajit Das and Arun Kumar Das, at the East and diversion plots Nos. 273 and 432 at the West. From the sale-deed (para-1) it appears that this plot is recorded as Plot No. 434/2 in Revenue Case No. 4 of 1961-62 which the vendor has explained to be an error. The respondents-plaintiffs allege that after purchase they started digging foundation on a part of the suit land to raise structure on it when one Shri Balram claiming to be the agent of appellant No. 1 objected to the same. The said Balram asserted possession of appellant No. 1 over the suit plot and, therefore, they filed the Civil Suit No. 9-A of 1970 in the Second Civil Judge Class II, Jabalpur claiming permanent injunction against the appellant No. 1 Smt. Lalita James on and her agent. The trial Court, however, held of that the plaintiff-respondents were not in possession of the suit land and on this finding dismissed the suit. They have, therefore, filed the present suit for possession. The respondents-plaintiffs have joined their vendor, the respondent No. 3, in the suit to support their alternative claim of compensation, in case it was held that the sale in their favour did not confer any right or title upon them. The appellants, in their written statement, denied that respondent No. 3 Mrs. O.N. Park has received the suit land in partition. According to them, the sale by her in favour of the respondents-plaintiffs was on no consequence and did not confer any right title upon them. Though the respondent No. 3 Mrs. O.N. Park did not file her written statement and remained ex parte, she has appeared as a witness. The appellants denied the claim of the respondents-plaintiffs to possession of 36885 sq. ft. of land. They however, submitted that the respondents-plaintiffs can, at the most, claim a refund of Rs. 14,000/- and nothing more. The learned trial Judge on consideration of evidence adduced by the parties, held that the respondent No. 3 Mrs. O.N. Park was the exclusive owner of the said plot and validly sold the same to respondents-plaintiffs. According to the Court, though the plaintiffs were put in possession of the suit plot, they have themselves given-up the said possession. On these findings the suit was decreed and hence this appeal.

(3.) It is well settled rule of law that burden of proving his case to obtain a decree from the Court is always on the plaintiff who must adduce reliable and admissible evidence for the said purpose. Section 102 of the Evidence Act contains the broad rule in this behalf and, therefore provides the legal guidelines in the matter. As a necessary corollary to the aforesaid rule is the rule that the plaintiff must succeed on the strength of his own title and not be sustained by any weekness in the case of defendant, Lakshan Chandra Mandal v. Takimphali, AIR 1924 Cal 558 and Jagannath Prasad v. Syed Abdullah, AIR 1918 PC 35, stated this rule by observing that the defects in evidence of the party on whom the onus of proof lie cannot be cured by criticism of the evidence of the other party. In claims based on title, the plaintiff who makes such a claim has to prove his subsisting title. This rule is very particularly applied in those cases where the defendant is found to be in possession of the suit property. In M.M.B. Catholicos v. T. Paulo Avira, AIR 1959 SC 31, it was emphasised that it is the strength of the plaintiffs title and not the absence of title in the defendant that matters in a suit for possession. Since this is the suit by purchasers of the property for possession and is contested by the appellants who are admittedly in possession, the onus is on the respondents-plaintiffs to prove that their vendor had the necessary title. The aforesaid rule though of general application will have to be particularly applied in the instant case as the properties remained joint in the absence of partition between Mrs. Dayabai Lakshmanan and Mrs. Grace Pritabai Morris or their successors-in-interest.