In spite of it, application of Rule of evidence as stated in para-3 above does not entitle the respondents-plaintiffs to a decree for possession, even if the same was legally possible. On the aforesaid principle it was the burden of the respondents-plaintiffs to first help this Court in identifying the suit property. The suit property is described by Letters A.B.Q.R.S.J. & K. in the map annexed the plaint (see para-8). The attached map which now forms part of the impugned decree, however, does not describe the area by these words. The sale-deed which forms basis of the title of the respondents-plaintiffs is not on record and, therefore, it is not possible for this Court to ascertain whether this map compares with the map or descriptions of the suit plot in the sale-deed. The respondents-plaintiffs have filed several maps to clarify the situation of the suit plot i.e., Exs. P-2, P-3 and P-12. None of these maps tally with the plaint map. Plaint map indicates that the northern boundary of the suit plot is 188 ft. in length but nowhere in these maps, one can find such a northern boundary. Clearest position of the suit plot appears in map Ex. P-2 where northern boundary of the plot is much more than 188 ft. Not only the northern boundary, the eastern boundary of the plaint map Ex. P-2 doe's not tally with these maps. This discrepancy was brought to the notice of the learned counsel for the respondents at the time of the hearing of this appeal to enable him to explain and properly identify the said fact. He was, however, not able to throw any light on the subject with the help of the material on record. Indeed it appears that no effort was made to properly identify the suit plot at any time before, which in the opinion of this court, was the basic requirement. Since the resp'ondents-plaintiffs claim title based on sale deed dated 10-8-1964 and they would not be entitled to anything more than what they have purchased, it was their obligation to file the sale deed to enable this court to properly identify the suit plot and to ascertain whether they have the necessary title. They cannot hope to succeed only by pleading and proving the area of the suit plot. It is not the policy of law to leave matters vague and thereby create litigation within litigation. Then simply because the area of the two plots is the same, it cannot be held that the respondents-plaintiffs were owners of the suit plot. They have clearly failed to discharge the burden of proof which initially lay on them.
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Madhya Pradesh High Court
Smt. Lalita James And Ors. vs Ajit Kumar And Ors. on 21 August, 1989
Equivalent citations: AIR 1991 MP 15
1. This is defendants' first appeal under Section 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. Labour-lost between two sisters. One Shir P.S. Chouhan, an Indian Christian, admittedly owned vast properties including houses, outhouses 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 danghters. 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. Shrivastava, 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 and her agent. The trial Court, however, held 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 Jagan-nath 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 Lakshma-nan and Mrs. Grace Pritabai Morris or their successors-in-interest.
4. It, at once, appears to this Court that a purchaser from a co-owner of a portion of undivided property is not entitled to possession of any particular part of the joint property. His right, if any, would be to joint ownership or co-ownership and not to the exclusive ownership of any particular part of the joint property. Even if it was to be assumed that the shares of two sisters of Shri P. S. Chouhan, namely, Mrs. Dayabai Lak-shmanan and Mrs. Grace Pritabai Morris were half and half in the property, each of them would have the right of enjoyment and possession equal to the other. But as long as the property is not devided, neither of them would be entitled to any particular part of the property. A transferee from such a co-owner would not be in a better position than the co-owner himself and hence he would also not be entitled to claim exclusive possession of any particular part of the joint property. Section 44 of the Transfer of Property Act gives legislative sanction to this principle and provides that "where one of two or more co-owners of immovable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires, as to such share or interest, and so far as is necessary to give effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities accepting, at the date of the transfer, the share or interest so transferred". This sanction, therefore, assures the transferee the right to joint possession or common enjoyment of the property but does not confer on the transferee any right to exclusive possession. Since this is not a case where a co-owner was in exclusive possession of the suit property by some arrangement between them, other details of this principle need not be considered. Suffice it to say, that the respondents-plaintiffs would, in the context of the facts and circumstances of the case, be only entitled to enforce a partition of the joint estate and nothing more. In the context of this legal principle, the sale in favour of the respondents-plaintiffs cannot be accepted to be the sale of the particular property. It would, at the most, be recognized as the sale of the joint property giving the plaintiffs' right to obtain its separate possession, if possible, by filing the suit for partition. Since the respondents-plaintiffs are not in possession of the suit property they cannot be joint in possession of the suit property or any other joint property even during the pendency of the partition suit on the principle stated by this Court in Full Bench decision, in Ram-dayal v. Maneklal, 1973 MPLJ 650 : (AIR 1973 Madh Pra 222). This would, in the opinion of this Court, be sufficient to dispose of this suit for separate possession of undivided property. ',
5. In spite of it, application of Rule of evidence as stated in para-3 above does not entitle the respondents-plaintiffs to a decree for possession, even if the same was legally possible. On the aforesaid principle it was the burden of the respondents-plaintiffs to first help this Court in identifying the suit property. The suit property is described by Letters A.B.Q.R.S.J. & K. in the map annexed the plaint (see para-8). The attached map which now forms part of the impugned decree, however, does not describe the area by these words. The sale-deed which forms basis of the title of the respondents-plaintiffs is not on record and, therefore, it is not possible for this Court to ascertain whether this map compares with the map or descriptions of the suit plot in the sale-deed. The respondents-plaintiffs have filed several maps to clarify the situation of the suit plot i.e., Exs. P-2, P-3 and P-12. None of these maps tally with the plaint map. Plaint map indicates that the northern boundary of the suit plot is 188 ft. in length but nowhere in these maps, one can find such anorthern boundary. Clearest position of the suit plot appears in map Ex'.P-2 where northern boundary of the plot is much more than 188 ft. Not only the northern boundary, the eastern boundary of the plaint map Ex. P-2 doe's not tally with these maps. This discrepancy was brought to the notice of the learned counsel for the respondents at the time of the hearing of this appeal to enable him to explain and properly identify the said fact. He was, however, not able to throw any light on the subject with the help of the material on record. Indeed it appears that no effort was made to properly identify the suit plot at any time before, which in the opinion of this court, was the basic requirement. Since the resp'ondents-plaintiffs claim title based on sale deed dated 10-8-1964 and they would not be entitled to anything more than what they have purchased, it was their obligation to file the sale deed to enable this court to properly identify the suit plot and to ascertain whether they have the necessary title. They cannot hope to succeed only by pleading and proving the area of the suit plot. It is not the policy of law to leave matters vague and thereby create litigation within litigation. Then simply because the area of the two plots is the same, it cannot be held that the respondents-plaintiffs were owners of the suit plot. They have clearly failed to discharge the burden of proof which initially lay on them.
6. In view of the aforesaid, it is not necessary to examine whether any interest of the appellants Nos. 2, 3 and 4 who were the representatives of Mrs. Dayabai Laksh-manan has been affected by the sale in favour of the respondents Nos. 1 and 2. Indeed in view of the aforesaid finding it is not possible to ascertain the same.
7. The question requiring consideration, however, is whether in spite of the aforesaid findings respondents 1 and 2 can be given any relief in this suit? They have while praying for a decree for possession, claimed, in the alternative, a decree for refund of consideration, admittedly paid by them to respondent No. 3. The respondent No. 3 as P.W. 1, has admitted execution of sale deed on 10-8-1964 for a sum of Rs. 14,000/- (para-4). In such a situation, the respondents Nos. 1 and 2 could be granted a decree for refund of this amount, if there be no other legal impediment. The learned Counsel for the appellant has conceded that there was no such legal impediment. It would, therefore, be in the interest of justice to grant a decree for refund of consideration as the same would bring this litigation to an end. Under the circumstances, though this Court would allow the appeal and dismiss the suit of respondents Nos. 1 and 2 against the appellants with costs, it would grant a decree in favour of the respondents-plaintiffs against the respondent No. 3 for a sum of Rs. 14,000/-together with interest at the rate of 6% per annum from the date of payment i.e. 10-8-1964 till repayment, together with proportionate costs. Costs of the appellants in this court will be borne by respondent No. 3. Let a decree be drawn, accordingly.
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