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Judgment
A.S. Pachhapure, J.—The appellant has challenged the judgment and decree of the First Appellate Court allowing the appeal of the respondent by setting aside the dismissal of the suit and granting a decree in favour of the respondent. The facts relevant for the purpose of this appeal are as under:
The parties will be referred as per their rank before the Trial Court for the sake of convenience.
The appellant is the defendant in the suit instituted by the respondent-plaintiff claiming the aforesaid reliefs. The suit properties are two items of agricultural lands i.e., part of Sy. 29/1, 30 and 30/1A wherein the first item measures 12 guntas and the second item measures 14 guntas with the boundaries mentioned in the schedule to the plaint. So far as item No. 1 is concerned, the plaintiff claims that her husband late Krishnappa was given the said item in an oral partition out of the share fallen to his father Thimmarayappa in a family partition. She further contends that 1 acre and 20 guntas in Sy. No. 29/1 and 30/1A fell to the share of Thimmarayappa under the registered partition deed dated 15.09.1971. On the death of Thimmarayappa, the property was equally divided amongst 5 sons and the plaintiff''s husband got 12 guntas in an oral partition and the plaintiff succeeded to the said item of property or the death of her husband.
So far as item No. 2 of the suit schedule which measures 14 guntas, was purchased by Krishnappa, the husband of plaintiff alongwith his sister Rajamma jointly under the registered sale deed from one Nagappa, another brother of plaintiff''s husband and as Rajamma, the sister of plaintiff''s husband died unmarried and issueless, plaintiff''s husband succeeded to the said property in item No. 2 and claims to have continued in possession of the aforesaid property. As there was dispute between the parties and as the defendant is said to have disturbed the possession of plaintiff on 17.06.2003, she approached the Court below seeking the relief of declaration, injunction and possession. The plaintiff contended that the defendant has no right, title or interest of whatsoever type in the suit property.
The defendant appeared before the Trial Court and filed the written statement denying the averments made. He denied the oral partition alleged to have taken place between the husband of plaintiff and his brother on the death of Thimmarayappa. So far as item No. 2 of the suit property is concerned, it is his contention that apart from the husband of plaintiff, Rajamma had a interest in item No. 2 of the suit property and she has executed a general power of attorney in his favour and he having paid the consideration, is in possession of suit item No. 2 since from the date of general power of attorney executed by Rajamma. He contends that on the death of Rajamma, he continued to be in possession of item No. 2 of the suit property all along till the date of suit. He further contends that the cause of action alleged is fictitious and the suit in the present form is not maintainable. On these grounds, he has sought for dismissal of the suit.
On the basis of these pleadings, the Trial Court framed the issues and permitted the parties to lead their evidence. Accordingly, the plaintiff examined her son as P.W. 1 who is said to be power of attorney holder of his mother and in his evidence, Exs. P1 to P14 were marked. The defendant examined himself as D.W. 1 and the documents Exs. D1 to D23 were marked. The Trial Court after hearing the counsel for parties and on appreciation of the evidence on record, dismissed the suit and answered the issue in ''Negative''. Aggrieved by the impugned judgment and decree, the plaintiff preferred an appeal in RA No. 158/2004 and the First Appellate Court has allowed the appeal and granted a decree of declaration and possession in favour of the respondent. Aggrieved by the judgment and decree of the First Appellate Court, the defendant has approached this Court in appeal.
At the time of admission, the following substantial question of law has been raised:
Whether in the facts and circumstances of the case, the Appellate Court was justified in reversing the judgment and decree passed by the Trial Court holding that the plaintiff has proved that she is the absolute owner in possession of item Nos. 1 and 2 of the suit schedule property and she has better title and decreeing the suit for declaration and possession?
I have heard learned Senior Counsel for both the parties.
It is the contention of learned Senior Counsel for the appellant that the Trial Court while dismissing the suit has assigned consistent and cogent reasons to hold that the plaintiff has not proved her title and possession and rightly rejected the suit whereas, the First Appellate Court without assigning consistent and cogent reasons has reversed the judgment and decree of the Trial Court and thereby committed an illegality in granting the relief. He would submit that so far as item No. 1 of the suit property is concerned, the plaintiff has not placed on record any evidence regarding oral partition and the suit item No. 1 having fallen to the share of plaintiff. So also, it is his contention that the suit properties are not exclusively held by the plaintiff and in the absence of other co-sharers as parties to this suit, the suit itself is not maintainable in law. He would further submits that so far as item No. 2 of the suit property is concerned, it is in the possession of defendant on the basis of general power of attorney executed by Rajamma and the plaintiff being not the exclusive owner of the suit item has no right to take possession or seek the relief of declaration. Inviting the attention of this Court to several documents and basing his claim on the judgment of the Apex Court, he would submit that the First Appellate Court has committed an illegality in allowing the appeal of respondent.
On the other hand, learned Senior Counsel for the respondent submits that the oral partition has been proved on the basis of documents produced by the defendant and there is no question of co-sharers being parties to the suit and as the plaintiff has a better title to the suit properties and as the defendant did not have any legal interest in it, he cannot put forth the defence of other co-sharers having not been arraigned as parties to the suit. So also, he would submit that there is no specific plea in the written statement regarding the non joinder of necessary parties and even otherwise, the question of interest of co-owner could be kept open. So far as item No. 2 of the suit property is concerned, he submits that this property was purchased by the husband of plaintiff and his sister Rajamma and as Rajamma died unmarried and issueless, the plaintiff being the wife of Krishnappa, succeeds to the interest of deceased Rajamma and even if any other person has any interest being co-sharers or legal representative of deceased Rajamma, the defendant cannot put forth the said plea in the suit. On these grounds, he has sought for dismissal of the appeal.
There is no dispute that the suit property in item No. 1 is a portion of the property which fell to the share of Thimmarayappa, the father of plaintiff''s husband. In the aforesaid partition under the registered partition deed dated 15.09.1971, 1 acre and 20 guntas of land in Sy. No. 29/1 and 30/1A inclusive of suit item No. 1 was given to the share of Thimmarayappa. This partition deed is at Ex. D1. Therefore, as averred by the plaintiff and admitted by the defendant by producing Ex. D1, the Courts below have rightly concluded that the suit item No. 1 is a portion of land fallen to the share of Thimmarayappa. It is averred by the plaintiff that on the death of Thimmarayappa, this property was divided amongst his 5 sons and each son was allotted 12 guntas of land and to the share of plaintiff''s husband, suit item No. 1 measuring 12 guntas with the boundaries stated therein fell to his share. It is in pursuance of this partition, the plaintiff sought the relief of declaration and also injunction on the basis of the partition of aforesaid land amongst 5 sons giving 12 guntas to each of them.
On behalf of the plaintiff, except oral evidence of P.W. 1, who is the POA holder and son of the plaintiff, there is no evidence. Therefore, learned Senior Counsel for the appellant contended that when P.W. 1 had no personal knowledge and when the plaintiff has not entered the witness box, the Trial Court ought to have dismissed the suit so far as item No. 1 is concerned solely on this ground and in this context, he has placed reliance on the decision of Apex Court reported in Man Kaur (dead) by LRS. Vs. Hartar Singh Sangha, , wherein the Apex Court in the context of POA having deposed before the Court and having held that he had no personal knowledge did not accept his evidence.
P.W. 1 who is the son of plaintiff was aged 33 years when his evidence was recorded and the partition under Ex. D1 was in the year 1971 and he does not say as to when Thimmarayappa died and he had no personal knowledge with regard to oral partition. Even accepting the dictum laid down by this Court in the decision and discarding the evidence of P.W. 1 so far as oral partition is concerned, it is relevant to note that if any other co-sharer has share in the suit Sy. No. 29/1 and 30/1A which fell to the share of Thimmarayappa, it is only the legal representative of deceased Thimmarayappa who can dispute the partition between the parties or separate possession. The defendant before this Court is neither the sharer nor the co-owner. He is a stranger to the family of Thimmarayappa. Therefore, unless he claims any title to this property on the basis of any such document, his contention cannot be accepted, but he does not claim any interest in item No. 1, except contending that the plaintiff is not the absolute owner of suit item No. 1. The plaintiff has instituted the suit to declare her title to the suit property. It may be that other co-sharers have share in this property as well. It is the law that the decree of declaration does not bind the person who are not the parties to the suit. Therefore, absence of other sharers in this suit is not fatal.
So far as dispute in this suit is concerned, the plaintiff claims title on the basis of succession from her father-in-law and through her husband, whereas defendant being a stranger to the family of Thimmarayappa though denies the averments has not produced any document before the Courts below to base his title. In such circumstances, perusal of the material placed on record would clearly indicate that the plaintiff has better title to suit item No. 1 as she is the legal representative of deceased Thimmarayappa and atleast has co-ownership rights in the suit property.
When the parties to suit defend the rights on the basis of pleadings and the evidence on record and on appreciation of the material on record if the Court comes to the conclusion that the plaintiff has better title to the suit item then, the Court has to grant the reliefs to the person who has better title to the suit property. On this aspect of the matter, learned Senior Counsel for the respondent has placed reliance on the decision of Apex Court reported in R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami and V.P. Temple and Another, , the Apex Court in the suit for recovery of possession has held as under:
In a suit for recovery of possession based on title it is for the plaintiff to prove his title and satisfy the Court that he, in law, is entitled to dispossess the defendant from his possession over the suit property and for the possession to be restored to him. However, as held in A Raghavamma v. A Chenchamma, there is an essential distinction between burden of proof and onus of proof: burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. In our opinion, in a suit for possession based on title once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant it is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiff''s title.
So even in the absence of oral evidence of P.W. 1, considering the pleadings of parties and weighing the respective claim on the basis of material placed on record, the plaintiff has better title and she is entitled to a decree. That apart, the defendant has produced Ex. D4 the original sale deed dated 28.12.1975 executed by the wife of Ramaiah and their children in favour of the defendant. Under this sale deed, 10 guntas of land which had fallen to the share of Ramaiah in the property allotted to his father Thimmarayappa was sold by his wife and children of Ramaiah. In this registered sale deed, there is a reference of partition between Thimmarayappa and his sons on 15.09.1971 under Ex. D1 and it is mentioned herein that on the death of Thimmarayappa and his wife Muniyamma that property which fell to the share of Thimmarayappa was partitioned and Ramaiah was given 10 guntas of land. This would clearly indicate that after the death of Thimmarayappa and his wife Muniyamma, the property which was allotted to their share under the partition deed Ex. D1 was divided amongst the members of the family. Therefore, this document produced by the defendant would clearly indicate that the property which fell to the share of Thimmarayappa was partitioned and each of the sons were given the share. So from this document it can be inferred that the averment made in the plaint that the property of Thimmarayappa was partitioned and suit property fell to the share of plaintiff''s husband stands proved by applying the principle of preponderance of probability.
It is no doubt true that plaintiff has not produced any evidence of oral partition of the share of Thimmarayappa and the plaintiff relies upon the document at Ex. D4 to prove it. In this context, learned Senior Counsel for the appellant would contend that the plaintiff cannot depend on the weakness of defendant and it is for the plaintiff to establish her claim on the basis of evidence produced by her. He submits that in case if there is no evidence for the plaintiff she should be non-suited. On this aspect of the matter, learned Senior Counsel relies upon the decision of Apex Court reported in T.K. Mohammed Abubucker (D) thr. LRs. and Others Vs. P.S.M. Ahamed Abdul Khader and Others, , the Apex Court has held that "The letters Patent Bench overlooked the fact that a plaintiff in a suit for declaration of title and possession, can succeed only by making out his title and entitlement to possession and not on any alleged weakness in the title or possession of the defendants.
This principle cannot be applied to the facts on hand for the sole reason that though the plaintiff has not produced any evidence, she relies upon the document produced by the defendant under Ex. D4 to prove the oral partition. Placing reliance upon other''s evidence in the absence of plaintiff''s evidence or otherwise, the plaintiff can insist the Court to consider the document of her adversary to prove her case as well. Therefore for the aforesaid reasons, I am of the opinion that the plaintiff though not from her evidence, but relying upon the document admitted in the evidence and produced by the defendant it is proved that there was oral partition amongst the children of Thimmarayappa and the suit property has fallen to the share of plaintiff. Even otherwise, it is for the other co-sharers to dispute the title. It is not for the defendant to take any benefit of not impleading other legal representatives of Thimmarayappa.
So far as item No. 2 of the suit property is concerned, it is 14 guntas of land and this property was purchased by the husband of plaintiff i.e., Krishnappa and his sister Rajamma under the registered sale deed produced at Ex. P3. Perusal of this document would clearly indicate that this property was fallen to the share of Nagappa, the brother of plaintiff''s husband in the partition of the year 1971. It reveals that Nagappa had sold his property to the plaintiff''s husband and his sister Rajamma under the registered sale deed produced at Ex. P3. The plaintiff has proved the fact that Rajamma died unmarried and issueless. Therefore, on the death of Rajamma, the plaintiff claims to have succeeded to item No. 2 of the suit property. Even so far as this property is concerned, it is relevant to note that the plaintiff''s husband was joint owner of the suit property with his sister Rajamma and on the death of Rajamma, her interest in the property would devolve upon the plaintiff''s husband and also other brothers of Krishnappa who are not parties to the suit. Even so far as this property is concerned, the plaintiff has proved that she has ownership rights. It is true that other legal representative of Thimmarayappa have also interest in the property. The fact that they are not impleaded as party to this suit is not sufficient to reject the request of plaintiff.
So far as this joint interest of Rajamma is concerned, the defendant being a stranger cannot put forth his claim in the interest of deceased Rajamma. Anyhow, the defendant makes a claim to this property on the basis of a general power of attorney executed by Rajamma in his favour produced at Ex. D5 dated 29.10.1989. Perusal of this document would clearly indicate that it is just a general power of attorney authorizing the defendant to supervise her interest in the suit item No. 2 and to deal with the property by transfer inter vivos or by any other mode of transfer. So far is validity of the general power of attorney at Ex. D5, it is valid in the life time of executor of the document. On the death of Rajamma, the defendant cannot claim any right to the property on the basis of the general power of attorney. That apart, except Ex. D5 the defendant has not produced any document to prove any interest in this item of the suit property. No right or interest in the suit item No. 2 can be transferred under general power of attorney and the defendant cannot claim his right to retain the possession of this property on the basis of Ex. D5. It is for this reason that the First Appellate Court has granted a decree in favour of the plaintiff. The rest of documents which have been produced have no relevance so far as item Nos. 1 and 2 of the suit property are concerned. Taking into consideration the reasons assigned by the First Appellate Court they are consistent and cogent and the First Appellate Court has rightly reversed the judgment and decree of the Trial Court by appreciating the evidence available on record. Hence, the substantial question of law is answered in ''Affirmative''.
Consequently, the appeal fails and is accordingly dismissed.