Lingayyan vs G. Pandiyan

Honourable Mr. Justice R.S. Ramanathan

The unsuccessful defendant is the appellant. The respondent/plaintiff filed a suit for declaration and for recovery of possession.

The case of the respondent/plaintiff was that the suit property belonged originally to one Dakshina Murthy Naidu, he having purchased the same under four documents and he allowed the defendant and his father to be in possession of the property as a tenant as Dakshina Murthy Naidu was employed in Railways and was working in various places. The defendant and his father were paying kist receipts and rent regularly and the defendant and his father were allowed to enjoy the property as they happened to be the neighbouring land owners. After the death of Dakshina Murthy Naidu, his legal-heirs sold the property to the respondent/plaintiff under a registered sale deed, dated 17.06.1984 and the respondent/plaintiff after his purchase requested the appellant/defendant to vacate and hand over the possession and they claimed ownership over the property as if it is their ancestral property and Dakshina Murthy Naidu had no title over the same and Dakshina Murthy Naidu had no issues. The appellant/defendant also claimed adverse possession. Hence, the suit was filed for declaration of title and for recovery of possession.

The appellant/defendant contested the suit stating that the suit property was enjoyed by him and his predecessor in-title as owners for more than 50 years and Dakshina Murthy Naidu was not the owner of the property and he never claimed any ownership and the defendant and his father were not let into possession by Dakshina Murthy Naidu as a tenant and they have been paying kists in their individual rights as the owner of the property and they also perfected title by adverse possession.

Both the Courts below concurrently held that the respondent/plaintiff proved title to the suit property through Exs.A2 to A5 and A15 and the appellant/defendant was put in possession by Dakshina Murthy Naidu and that was also proved by Ex.A7 Adangal extract, where Dakshina Murthy Naidu was described as owner and the defendant was described as cultivating tenant and even for the Fasali 1393, Ex.A6 kist was paid by one of the legal-heirs of Dakshina Murthy Naidu and PW2, one of the legal-heirs of Dakshina Murthy Naidu also gave evidence to the effect that they enjoyed the property and the defendant and his father were permitted to cultivate the property and in the re-settlement registers, Exs.A8 and A24 also Dakshina Murthy Naidu was described as the owner of the property. As the appellant/defendant failed to prove that he was enjoying the property in his own right and Dakshina Murthy Naidu was the owner of the property and the appellant/defendant claimed ownership and also pleaded adverse possession, he is not entitled to claim title to the suit property on the basis of adverse possession and the respondent having established his title, the respondent/plaintiff was entitled to recovery of possession and decreed the suit. Aggrieved by the same, the second appeal is filed.

The following questions of law were framed at the time of admission:-

01.Whether the learned District Judge is right in decreeing the suit on the basis that the defendant has not produced any document to show his ownership to the suit property, when the law clearly contemplated that it is the duty of the plaintiff to prove his title and not by the defendant?

02.Whether the learned District Judge is right in accepting the registration copy of the sale deeds as filed by the plaintiff for the suit property and not the original sale deeds and whether it is not a contravention of the provisions of Indian Evidence Act?

The learned counsel appearing for the appellant submitted that both the Courts erred in holding that the respondent/plaintiff proved the title to the suit property and erred in relying upon Exs.A2 to A5, which are only certified copies of the sale deeds and they are inadmissible in evidence and the respondent did not prove the contents of the documents by examining the attesting witnesses. Further, it was contended by the learned counsel appearing for the appellant that both the Courts below erred in placing the burden on the appellant to prove his title over the property and the suit was filed by the respondent/plaintiff for declaration of title and without proving his title, the respondent/plaintiff was not entitled to declaration and in the absence of prove of title by the respondent/plaintiff, the respondent/plaintiff was not entitled to declaration.

On the other hand, the learned counsel appearing for the respondent/plaintiff submitted that even though Exs.A2 to A5 were certified copies of the sale deeds, they are admissible in evidence by virtue of section 65 of the Evidence Act and Ex.A15 is the original sale deed of which Ex.A5 is the certified copy and having regard to Exs.A8 and A24, A7 Settlement register, wherein Dakshina Murthy Naidu was described as owner of the suit property, the respondent/plaintiff proved title and there is no bar for relying upon the registration copies of the sale deeds.

The learned counsel appearing for the appellant further submitted that the appellant paid kist for the suit lands and that was proved by Exs.B1, B4, B5 & B6 and he also filed a suit in O.S.No.1059 of 1983 against one Sarangapani Gounder, who attempted to interfere with his possession and obtained a decree against Sarangapani Gounder and that would also prove that the defendant is in possession of the property as a owner and the decree was marked as Ex.B10. He, therefore, contended that the appellant not only proved his title and also proved possession over the suit property and the respondent/plaintiff did not prove his title and Exs.A1 to A5 cannot be relied as they were only certified copies of the sale deeds and in the absence of any original document, the respondent/plaintiff cannot be said to have proved his title over the suit property.

Heard both sides.

The respondent/plaintiff filed a suit for declaration and recovery of possession and therefore, it is for him to prove that he has got title over the property and the learned trial Judge after relying upon the judgment reported in 1952 MWN 799 in the case of The Land Acquisition Officer, Vijayawade Thermal Station Vs. Nutalapati Venkata Rao, held that once registration copy of sale deeds were produced and when the party is entitled to adduce secondary evidence, those documents can be received in evidence. Further, documents Exs.A2 to A5 were executed in the year 1912, 1922 and 1932 and they are only registration copies of the sale deeds and those documents were received in evidence without protest and as per section 65 of the Evidence Act, secondary evidence is admissible when the original is not available and Ex.A15 is the original sale deed in respect of 1st item of the suit property and Exs.A8 and 24 are the re-settlement registers, which mentioned Dakshina Murthy Naidu as the owner of the property and Ex.A7, the Adangal extract was for the fasali 1382 to 1383 wherein Dakchina Murthy Naidu was mentioned as owner and the defendant was mentioned as cultivating tenant and Ex.A6 was the kist receipt paid by one of the legal-heirs of Dakshina Murthy Naidu for the fasali 1393 and no proof was adduced for the payment of kists after fasli 1393 by the appellant and after considering the above documents, both the courts have rightly held that the respondent/plaintiff has proved his title over the property and the documents can be received in evidence and the respondent/plaintiff has proved his title to the property through Exs.A2 to A5 and A15 and the Courts below have rightly placed the burden on the appellant to prove his title and held that the respondent proved his title.

The case of the defendant/appellant was that he and his fore-fathers were enjoying the property as owners and he also claimed title by adverse possession. It is well settled law that a person who claims ownership cannot claim title by adverse possession and in this case, the respondent/plaintiff has proved his title over the suit property through Exs.A2 to A5 and A15 and also through revenue records Exs.A7, A8 and A 24 and the appellant/defendant has not proved his title and he claimed title by adverse possession, which is not permissible in law as he claimed ownership over the property and therefore, both the Courts have rightly held that the respondent/plaintiff proved title and the appellant/defendant has no title over the property. Therefore, he is liable to be evicted.

Hence, the both the substantial questions of law are answered against the appellant and the Courts below have rightly held that the respondent/plaintiff proved title over the property and the documents Exs.A2 to A5 and the registration copies of the sale deeds can be received in evidence to prove title. In the result, the judgments and decrees of the Courts below are confirmed and accordingly, the second appeal is dismissed. No costs.