Tuesday, 7 July 2020

Whether the plaintiff should prove his title to the immovable property if the defendant raises the plea of adverse possession?

The learned counsel appearing for the appellant relied upon a judgment of this Court in the case of Pappannan and others v. Kolandasamy reported in 2012 (3) MWN (Civil) 536 wherein it has been held as follows: ?20. At this juncture, I would like to dispel any wrong notion in this regard. There is no authority on the point that once the defendant raises the plea of adverse possession, the plaintiff is automatically relieved of his burden to prove his title on the assumption that the defendants should be deemed to have admitted the title of the plaintiff.
21. I recollect and call up the following maxims:
(i) Affirmantis est probare [He who affirms must prove]
(ii) Affirmanti non neganti incumbit probatio: The burden of proof lies upon him who asserts and not upon him who denies.

It is the bounden duty of the plaintiff to prove his case. The burden of proof is ambulatory. If the view of the learned counsel for the plaintiff is accepted, then in a title suit, no sooner the defendants file the written statement pleading adverse possession, straightaway the defendants can be directed to enter into the box and prove their case. But this is not the law on that point. The initial burden of proof in cases of this nature is only on the plaintiff, who should enter into the box and prove his title positively as has been already highlighted supra.

23. If at all the plaintiff succeeds in establishing his title by producing such clinching evidence, then it can be taken that the burden of proof got shifted from the plaintiff's side to the defendants' side and the defendants had to prove positively, their plea of adverse possession. However, the first appellate court started picking holes in the case of the defendants without expecting the plaintiff to prove his case. Wherefore, it is glaringly and pellucidly, palpably and axiomatically clear that the first appellate court erroneously decided the appeal.

Madras High Court
K.Vasanthi vs J.Ramanathan on 20 March, 2018
CORAM: MR.JUSTICE S.S.SUNDAR
Second Appeal (MD) No.493 of 2016 
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Whether provisions of S 35-B of CPC in respect of costs for causing delay are mandatory?

The facts of the case are given in the elaborate order of reference prepared by my learned brother P.C. Jain, J., and I need hot repeat them all over again. The short question, which this Full Bench is called upon to decide is whether the provisions of section 35-B of the Code of Civil Procedure (hereinafter referred to as the Code) are mandatory, fend if so, to what extent.

 In accordance with the majority decision it is held that in the event of the party failing to pay the costs on the date next following the date of the order imposing costs, it is mandatory on the Court to disallow the prosecution of the suit or the defence, as the case may be and that no other extraneous consideration would weigh with the Court in exercising its jurisdiction against the delinquent party. However, where the costs are not paid as a result of the circumstances beyond the control of the defaulting party, then the Court will be well within its jurisdiction to exercise its power under Section 148 of the Code in favour of the defaulting party if a strong case is made out for the exercise of such jurisdiction.

IN THE HIGH COURT OF PUNJAB AND HARYANA

Civil Revision No. 1878 of 1978

Decided On: 03.06.1981

Anand Parkash  Vs.  Bharat Bhushan Rai and Ors.

Hon'ble Judges/Coram:
S.S. Sandhawalia, C.J., Prem Chand Jain and Mela Ram Sharma, JJ.
Authored By : Mela Ram Sharma, Prem Chand Jain, S.S. Sandhawalia

Citation: AIR 1981 P&H 269
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Monday, 6 July 2020

Whether Landlord can file composite suit seeking eviction of the tenant from tenanted property and encroached property?

 In Sopan Sukhdeo Sable and others v. Assistant Charity Commissioner and others, MANU/SC/0071/2004 : AIR 2004 SC 1801, the Hon'ble Supreme Court has held that a plaint is to be read in its entirety and not in piece. Whether relief could be granted on the pleaded facts and evidence adduced is totally different from the relief claimed. All the relevant claims may not be allowed to a party on the pleadings and evidence adduced. Whether part of the relief cannot be granted by the Civil Court is a different matter from saying that because of a combined claim of reliefs the jurisdiction is ousted or no cause of action is disclosed. Where the main dispute related to the question of continuance of tenancy and the period of tenancy of the appellant with the trust and other reliefs were regarding enquiry into affairs of the trust, the application would not have been rejected on the ground that the civil court lacks jurisdiction on account of institution of composite suit or on account of any misjoinder of cause of action. In this case, the Hon'ble Supreme Court held that reliefs relatable to sections 51 and 51 of the Bombay Public Trust Act, 1950, ought to have been segregated from the other reliefs in relation to tenancy and continuance of tenancy, since, such other reliefs were well within the jurisdiction of the civil court. Accordingly, adjudication of the suit was restricted only upon question of tenancy, terms of tenancy and the period of tenancy. For rest of the reliefs, plaintiff was permitted to make such application as warranted in law for relinquishment and/or giving up claim of other reliefs. From this, it is quite clear that even assuming that the suit in the present case was a composite suit seeking eviction not only from the tenanted premises but also from the encroached premises, that by itself, was not sufficient to dismiss the entire suit as not maintainable. As noted earlier, upon reading of the plaint in its entirety and the context in which the pleadings appear, it cannot be said that the relief was prayed for even in respect of encroached portion. In any case, the ratio of Sopan Sable (supra) is a clear answer to the issue that the suit could not have been dismissed in its entirety on the alleged ground that the same was a composite suit.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Civil Revision Application No. 60 of 2015

Decided On: 05.02.2018

 Mangilal Mishrimal Bafna  Vs. Nemichand Khetmal Jain 

Hon'ble Judges/Coram:
M.S. Sonak, J.
Citation:  2018(4)AllMR 104,
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Notification bringing Motor Vehicles(Amendment ) Act 2019 in force

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