BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 22/12/2006 CORAM: THE HONOURABLE MR. JUSTICE V. DHANAPALAN S.A. No.870 of 1995 Azhagarsamy Naicker .. Appellant Vs Azhagiriswamy Naicker .. Respondent Second Appeal filed under Section 100 of Code of Civil Procedure against the judgment and decree dated 01.12.1993 made in A.S. No.25 of 1992 on the file of the District Judge, Kamarajar District at Srivilliputtur confirming the judgment and decree dated 17.08.1992 passed in O.S. No.285 of 1988 on the file of the District Munsif, Aruppukkottai. !For appellant ... Mr. J. Parekh Kumar for M/s. P. Srinivas ^For respondent ... Mr. S. Kadarkarai :JUDGMENT
The unsuccessful plaintiff in both the Courts below is the appellant
herein. This appeal is directed against the judgment and decree of the District
Judge, Kamarajar District at Srivilliputtur in A.S. No.25 of 1992, confirming
the decreeing of the suit for declaration and mandatory injunction.
2. The plaintiff filed the suit for declaration declaring that the suit
wall is his exclusive property and for mandatory injunction directing the
defendant to remove the encroachments made by him on the suit wall. According
to the plaintiff, the suit wall and the adjacent house along with vacant site,
belong to him. Originally, the above said properties belonged to one Solai
Alagiri Naicker who executed a registered will dated 27.08.1948 favouring the
plaintiff’s mother by name Kothaiammal on condition that after his and his
wife’s life-time, Kothaiammal would get the properties on payment of Rs.1,150/-
each to her three sisters. After the demise of Solai Alagiri Naicker followed
by his wife, the three sisters executed a registered release deed dated
20.12.1954 in favour of the plaintiff’s mother after which the plaintiff got the
said properties under a registered partition deed dated 18.10.1987. The said
properties in the partition deed are mentioned as “A” schedule and the property
of the defendant is located in the western side of the suit wall. When the
plaintiff renovated his property, the defendant had raised objection proclaiming
that the suit wall is a common wall. Furthermore, the defendant had also put up
a wooden rafter on the suit wall, aggrieved by which the plaintiff had filed the
suit.
3. On the other hand, the defendant who is the respondent herein, by
filing a written statement, disputed the claims of the plaintiff. According to
him, the suit wall is enjoyed by him and his ancestors as a common wall and the
roof rafters and tiles of his house were inserted and built in the common wall
and this has been the position for more than 60 years and hence, the suit has to
be dismissed.
4. The Trial Court, on consideration of the oral and documentary
evidence of both sides and framing five issues, arrived at a conclusion that the
suit wall is a common wall and accordingly dismissed the suit. The lower
appellate court, on the appeal filed by the plaintiff, by endorsing the finding
of the Trial Court, upheld the judgment and decree of the Trial Court.
Aggrieved by the concurrent findings of the Courts below, the plaintiff has
preferred the present Second Appeal.
5. On 21.07.1995, this Court admitted this Second Appeal on the
following substantial questions of law:
a. Whether in law, common rights could be claimed or acquired by
prescription in respect of the entirety of exclusive wall by recent insertion
for support in a portion of the plaintiff’s main wall which is located very much
within the plaintiff’s land?
b. Whether the courts below erred in law in dismissing the suit for
declaration of title, when admittedly the suit wall is the plaintiff’s main wall
and situate within the boundaries of the plaintiff’s property as described in
Ex.A.1, Registered Will, Ex.A.2, Release Deed, Ex.A.3, Partition Deed and Town
Survey Plan?
c. Whether in law, adverse inference against the defendant could have
been drawn under Section 114(g) of the Indian Evidence Act, 1872, when the
defendant wilfully declined to produce the documents of title in his custody in
respect of his property? and
d. Whether the courts below erred in law in holding that the defendant
has acquired common right by prescription and the entire suit wall by the recent
action of inserting rafters when the defendant has failed to establish his plea
of acquisition of common right by sufficient oral and documentary evidence?
6. Mr. J. Parekh Kumar, learned counsel appearing for the
appellant/plaintiff would contend that the suit was filed based on the
registered title deed under Exs.A.1 to A.3 and Town survey field sketch Exs.A.5
to A.6 and the Trial Court, without considering the same, has dismissed the suit
based on the Commissioner’s Report and the lower appellate court has erroneously
upheld the judgment and decree of the Trial Court. He would further contend
that both the courts below have erred in law in holding that the suit wall is a
common wall, when admittedly, the defendant has no title whatsoever over the
suit wall and particularly, when he has failed to establish his plea of
acquisition of right by adverse possession by sufficient oral and documentary
evidence. It would be his further contention that the courts below ought to
have drawn adverse inference and decreed the suit by presuming that the suit
wall is exclusively belonging to the plaintiff since the defendant has failed to
produce the original documents relating to his house. At last, it would be his
strenuous contention that the suit ought to have been decreed when the wall is
situated well within the boundaries of the plaintiff’s property.
7. In support of his contention that the onus is on the
respondent/defendant to prove that the suit wall is a common wall, the counsel
for the appellant has placed reliance on:
i. a decision of this Court reported in 2004 (1) CTC 109 in the case of
Bama vs. Rikiyal Bivi and the relevant paras read as under: (paras 6 & 7)
“. . .If the defendant admits material allegations in the plaint, the
defendant may begin. However, the plaintiff must prima facie satisfy that there
are reasons to believe that particular thing is within the knowledge of the
defendant. If the denial by the defendant is without substance in view of the
other admitted facts, the onus lies on the defendant and he must be directed to
lead the evidence first.
Under Section 102 of the Indian Evidence Act, the burden of proof rests on
the party, who would fail, if no evidence at all were given on either side.
When a person seeks aid of a Court of equity to enable him to get rid of the
effect of deeds which he has executed, the burden of proof is on him to make out
a case, such as imposition or any other person for such intervention.
and
ii. yet another decision of this Court reported in 2000 (II) CTC 184 in
the case of K. Andi Reddiar vs. Ovu Ammal & 5 others (paras 26, 27, 31 and 32)
In the present case, the execution of the will is admitted as well as the
testamentary capacity and the keeral mark as well as the LTI of the deceased had
been supported by sufficient evidence and thus, the onus has been discharged.
When the defendants allege undue influence or fraud, or coercion, the onus is on
them to prove the same.. . .
Except setting out certain averments, the defendants have not proved their
plea that the Will was brought about by undue influence and coercion exercised
by the plaintiff. As rightly pointed out, the first appellate court had caste
the onus on the plaintiff to prove the negative namely, that there was no undue
influence or coercion on the deceased. In fact, D.W.2, identifying witness had
deposed that the plaintiff was not at all present anywhere near and his
admission is fatal. There is no iota of evidence to hold that the plaintiff had
exercised undue influence or coercion on the deceased testator. As already
pointed out, the sound disposing state of mind of the testator was proved and
admitted as well. The execution of the Will has been admitted by the first
defendant D.W.1.
. . . The onus is on the defendants to prove that there was undue
influence or the testator was coerced as pleaded in paragraph 4 and 5 of the
written statement.
. . .In the light of the decision of the Supreme Court, this Court holds
that the conclusion of the first appellate court cannot be sustained in law as
it is contrary to the decision of the Apex Court and this Court while setting
aside the finding of the appellate court as vitiated and perverse, confirms the
findings of the Trial Court that the Will was executed by the deceased testator
in a sound and disposing state of mind and it is true and last Will of testator
Nagu Reddiar.”
8. On the aspect of adverse inference, reliance has been placed by the
counsel for the appellant on
i. a decision of this Court reported in 2004 (1) CTC 105 in the case of
Guptha Enterprises, Sydenhams Road, Madras – 12 vs. Irusappan & another wherein
it was held as follows:(paras 7 & 8)
“. . . In such circumstances, without considering this aspect, the learned
Judge ought not to have passed the order in favour of the workman. In this
connection, it is pointed out that even though the workman has not produced the
relevant records to establish this fact, however, the workman issued a notice
dated 11.04.1987 to the appellant. In spite of the receipt of the said notice,
the appellant has not come forward to issue any reply repudiating the
allegations referred in the said notice. It is pointed out that the burden lies
only on the appellant to establish that the workman was not at all employed
under them. . . Since the appellant has not come forward to produce the relevant
documents to establish this fact, considering the circumstances of the case,
while deciding the matter, the learned Judge has taken an adverse inference and
accordingly, the learned Judge came to the conclusion that the first respondent
was a workman under the appellant and sustained injuries while he was working
under them.
In the light of the discussion held above, we are not inclined to allow
this appeal in favour of the appellant. Moreover, the appellant has not
established his case by producing the relevant documents before the concerned
authority. In such circumstances, we are satisfied with the reasons stated by
the learned Judge while allowing the Civil Miscellaneous Application. We do not
therefore think it proper to interfere with the order passed by the learned
Judge of this Court and accordingly, this appeal is dismissed. Consequently,
connected C.M.Ps. are also dismissed.
and
ii. a Division Bench of this Court reported in 1995 (I) CTC 556 in the
case of Vijay Lalchand HUF & another vs. K.M. Lulla HUF:
“A question will naturally arise whether the first plaintiff was put in
possession by the defendant under the agreement. The report of the Advocate
Commissioner shows that the plaintiffs have stored the building materials on the
disputed property and also erected two huts which, according to the plaintiffs,
are used by the men appointed by the second plaintiff Trust and the labourers,
who are employed for the construction activities. . . The fact that the
defendant had applied for Income Tax Clearance Certificate under Section 230-A
of the Income Tax Act and obtained the same even on 30.08.1991 shows that the
parties intended to give effect to the oral agreement for sale and they had
acted on it. The defendant has no explanation for not producing the draft sale
deed which was filed before the Income Tax Officer along with the application
for Clearance Certificate. If that document had been produced, it would have
been seen that there is a recital with regard to possession of the property. If
there is no such a recital, the defendant would have produced the certificate.
An adverse inference can be drawn against the defendant for the non-production
of the said document.”
9. Per contra, Mr. S. Kadarkarai, learned counsel for the
respondent/defendant would contend that the Courts below have rightly dismissed
the case of the appellant/plaintiff by relying on the evidence of P.W.1, the
plaintiff himself and Ex.A.3, partition deed which describes that the suit wall
is a common property and also the report of the Advocate Commissioner. He would
further contend that the appellant/plaintiff, having filed the suit for
declaration and mandatory injunction, should have proved his case since onus of
proof lies only on him and not on the defendant. One more point advanced by Mr.
Kadarkarai is that there is no ground made out for interfering with the
concurrent findings of the courts below.
10. The counsel for the respondent, in support of his submission that
the High Court cannot interfere with the concurrent findings of the Courts below
by re-appreciating the evidence, unless extremely warranted, has placed reliance
on a judgment of the Supreme court reported in (1996) 6 SCC 166 in the case of
Navaneethammal vs. Arjuna Chetty (paras 11 and 21)
“This Court, time without number, pointed out that interference with the
concurrent findings of the Courts below by the High Court under Section 100 CPC
must be avoided unless warranted by compelling reasons. In any case, the High
Court is not expected to reappreciate the evidence just to replace the findings
of the lower courts.
In our considered view, the lower appellate court has fairly appreciated
the evidence in the above background and has reached the conclusion that the
suit was not barred by limitation. Even assuming that another view is possible
on a reappreciation of the same evidence, that should not have been done by the
High Court as it cannot be said that the view taken by the first appellate court
was based on no material.
11. To add strength to his case that in a suit for declaration, the onus
of proof is on the plaintiff, the counsel for the respondent/defendant has
relied on:
i. a judgment of this Court reported in 1978 (1) MLJ 386 in the case of
K. Mohideen Ibrahim vs. M. Muhammed Abdullah (Para 5)
“. . . This finding is based on evidence, oral and documentary, adduced by
both sides. . . . Therefore, on facts, the plaintiff is not entitled to the
injunction prayed for. The plaintiff has not established that there was such a
substantial deprivation of light and air to his house as to render the
occupation of his house uncomfortable, according to the ordinary notions of
mankind and as beneficially as before.”
and
ii. yet another judgment of this Court reported in 2001 (3) CTC 584 in
the case of Azhagar & 2 others vs. Roman Catholic Deva Arogyamatha Koil through
its Bishop Sebasthian, Thiruvallur Village, Pudur Post, Ilayankudi Taluk,
Pasumpon Muthuramalingam Dt. (para 6)
In a suit for declaration, the onus is on the plaintiff to prove his title
as well as his claim. The case of the plaintiff is that the area south of the
suit property (only the compound wall is shown as suit property) is a public
pathway; over which every person has got a right of ingress and egress. To
prove that, there is no evidence whatsoever on the part of the plaintiff. No
revenue records or survey records or Field Measurement Books have been filed to
prove that it is the common pathway. The only document filed on the side of the
plaintiff, the settlement deed, Ex.A.1 and sale deeds of the third parties who
are not parties to the suit. In these documents, the area south of the compound
wall has been referred as public pathway. This is not sufficient to prove that
the area south to the suit compound wall is a public pathway.”
12. I have heard the learned counsel on either side and the reliance
made by them and have also carefully considered the materials available on
record.
13. From a perusal of Ex.A.3, partition deed relied on by the plaintiff
himself, it is clearly seen that the suit wall is described as a common wall.
Further, in the sketch submitted by the Advocate Commissioner, the plaintiff’s
house is marked as “G,H,I,J,K,L,D,C” and the defendant’s house is marked as
“M,N,O,P” and the suit wall is marked as “A,B,C,O,D,E,F” in red. In his report,
the Advocate Commissioner has categorically held that there are two windows in
the suit wall, each one of them being in use by the plaintiff and defendant.
This itself is a clear indication to prove that the suit wall is a common
property. The Advocate Commissioner has also held that there is a cement tank
adjoining the suit wall and the same is rather very old as also the wall in the
portion marked as “G,H”. It is further stated in his report that on the
southern side of the suit wall, the defendant’s stove is located and some rows
of tiles are fixed in the suit wall and they are also very old. That apart, the
appellant/plaintiff himself has admitted in his deposition that some rows of
tiles of the defendant’s house had been inserted in the suit wall. In that view
of the matter, the contention of the plaintiff that the rafters were recently
inserted in the suit wall does not have legs to stand. Also, the categorical
finding of the Courts below that since the plaintiff had raised a wall adjacent
the window used by the defendant, the latter had raised objection for the said
construction, is acceptable as otherwise, there is no necessity for the
defendant to raise objection in respect of construction by the plaintiff.
14. Also, I am of the considered view that the judgments of this Court
(supra) relied on by the counsel for the respondent/defendant in which it has
been categorically held that the onus of proof is on the part of the plaintiff
in a suit seeking declaration of title, has much relevance to the facts of the
case on hand. In the instant case, admittedly, the appellant/plaintiff has
taken no pain to establish his case that the suit wall is his exclusive
property.
15. Further, as held by the Supreme Court in its decision reported in
(1996) 6 SCC 166 (supra) which is relied on by the counsel for the
respondent/defendant, I virtually do not find any reason to interfere with the
concurrent findings of the Courts below in view of the fact that they have
dismissed the case of the plaintiff only after duly analysing both the forms of
evidence. That apart, no need, whatsoever, has arisen before this Court to re-
appreciate the evidence to hold in favour of the appellant/plaintiff.
16. The substantial questions of law as to (i) whether common rights
could be claimed or acquired by prescription when there is a wall by recent
insertion, (ii) whether the suit wall is the plaintiff’s main wall, (iii)
whether adverse inference can be drawn against the defendant when he has failed
to produce his documents of title and (iv) whether the courts below have erred
in holding that the defendant has acquired common right by prescription, are not
supported by any evidentiary value. From the discussion made above, it is clear
that the plaintiff has not made out any prima facie case, particularly, when the
burden of proof rests on the party who would claim relief and in this case, the
plaintiff, and this being the case, the substantial questions of law involved in
this appeal are answered in the above terms.
16. In view of the aforesaid discussion and the rulings of the Supreme
Court as well as this Court and also the settled principles of law that the
scope of this Court is very much limited in interfering with the concurrent
findings of the Courts below, unless and otherwise extremely warranted, I hold
that both the Courts below have rightly dismissed the case of the plaintiff,
which is devoid of any merit and in such a view of the matter, I have no
hesitation in confirming the concurrent findings of the Courts below.
In fine, the appeal stands failed and is accordingly dismissed. No costs.
To
1. The District Judge, Kamarajar District, Srivilliputtur
2. The District Munsif, Aruppukkottai.