JUDGMENT
1. This appeal by the defendant is directed against the reversing judgment/dated 25.2.1991 passed by the principal Subordinate Judge, Tirupati in AS No.49 of 1982.
The 1st respondent herein was the plaintiff and the appellant herein is the defendant in OS No.620 of 1978 on the file of Principal District Munsif, Tirupati. The respondents 2 to 7 are the legal representatives of the plaintiff and have been brought on record in this appeal. The parties are being referred to as they are arrayed in the suit.
2. The dispute relates to a strip of open site admeasuring 4 ft. North-South and 45 ft. East-West situated in between the sites of the plaintiff and the defendant, in Venkatagiri village. The disputed site is shown in the plaint ‘B’ schedule. The site alongwith the thatched hut therein belonging to the plaintiff is shown in plaint ‘A’ schedule. The site and hut of the defendant is situated to the north of the disputed site. The claim of the plaintiff is that the disputed site shown in plaint ‘B’ Schedule forms part of plaint ‘A’ schedule site admeasuring 30 ft North-South, 45 ft. East-West, that it is his ancestral property, that it has been in possession of his ancestors and they exercised the rights of
ownership paying the panchayal taxes etc., for the thatched house situated thereon bearing No.11/39 and that after obtaining necessary permission from the Gram Panchayat under Rxs.A1 and A2, he started construction of compound wall around the ‘A’ schedule site and that the defendant without having any manner of right obstructed the plaintiff with the construction work claiming that he has got right and title to the suit site. Hence, the plaintiff filed the suit for declaration of his title to the disputed suit site and for permanent injunction restraining the defendant from interfering with his peaceful possession and enjoyment of the said site. The defendant disputed the claim of the plaintiff and filed a written statement contending that he is not the owner of the disputed plaint ‘B’ schedule site, that the plaintiff was never in possession and enjoyment of the same, that the defendant alone is in possession, enjoyment of the said site exclusively and as such the suit is liable to be dismissed.
3. The trial Court settled the relevant issues based on the pleadings. During the course of trial. PWs 1 to 3 were examined and Exs.Al to AB were marked on behalf of the plaintiff. On behalf of the defendant, DW1 was examined and Ex.B1 was marked. On a consideration of the oral and documentary evidence on record, the trial Court dismissed the suit by holding that the plaintiff failed to establish his title and possession to the suit property. As against that judgment and decree of the trial Court, the plaintiff preferred the appeal A.S.No.49 of 1982 on the file of Prl. Subordinate Judge, Tirupati. The lower appellate Court on reappraisal of the evidence on record reversed the finding of the trial Court and decreed the suit holding that the plaintiff has established his title and possession over the disputed site. Challenging the said finding of the lower appellate Court, the defendant has come up with this Second Appeal.
4. Heard the learned Counsel on either side. The learned Counsel for the appellant took me through the impugned judgment in A.S.No.49 of 1982 and that of the trial Court and also the evidence, oral and documentary, on record.
5. The learned Counsel for the appellant submitted that the lower appellate Court committed error in decreeing the suit, declaring the title of the plaintiff on the weakness of the defendant’s case while the plaintiff’s title deed Ex.B1 do not establish his title to the disputed suit site and that it is well settled that the plaintiff seeking the relief of declaration of title must succeed on the strength of his own case and must establish his title independently. The learned Counsel for the appellant further submitted that the finding of the lower appellate Court is based on surmises and conjectures and that the appellate Judge is not justified in making an observation that the plaintiff might have perfected his title over the suit site by adverse possession in the absence of any pleading and evidence to that effect.
6. The learned Counsel for the
respondent-plaintiff on the other hand submitted his arguments in support of the impugned judgment of the lower appellate Court.
7. The substantial questions of law that arise for consideration in this appeal are :
(1) Whether the relief of declaration of title can be granted in favour of the plaintiff with respect to the disputed properly when it is in excess of the title deed of the plaintiff.
(2) Whether in a suit for declaration of title, the plaintiff can succeed on the weakness of the defendant’s case when he failed to establish his own case on the strength of his own title deed.
8. Ex.Bl is the title deed of the plaintiff. The plaintiff did not produce his title deed to suit property which he claims as ancestral property. On the other hand, Ex.Bl was produced into Court by the defendant. Under Original of Ex.Bl, the plaintiffs elder brother by name Veera Swamy, purchased a site together with thatched hut thereon admeasuring 9-1/2 yards North-South and 11-1/2 yards East-West from one Bairagi Lakshmamma on 27.2.1934. The plaintiff examined as PW1 admitted in his cross-examination, that subsequent to the death of his brother Veera Swamy, he succeeded to his estate as his only legal heir and that the original of Ex.Bl is his title deed with respect to the plaint ‘A’ schedule property which include the disputed site. He has not produced any other title deed besides Ex.B1, to prove his title to the plaint ‘A’ schedule. It is not his case that besides the site purchased under Ex.B1, he had also encroached either into the public site or to the private site to the extent of disputed site and that he has perfected his title by adverse possession. There is no pleading or evidence to that effect on behalf of the plaintiff. Therefore, the plaintiff is entitled for declaration of his title with respect to the site and the thatched hut purchased under Ex.B1. As seen from the schedule in Ex.Bl, the site purchased under it measures 11-1/2 yards (34-1/2 ft East-West) and 9-1/2 yards (28-1/2 feet North-South). But, the measurements of the plaint ‘A’ schedule site which includes the disputed site shown in ‘B’ schedule are 45 ft. East-West and 33 ft. North-South. Thus, it is in excess of the site purchased by the plaintiffs predecessor under Ex.Bl. There is no explanation either from the plaintiff or his witnesses examined in this case, how the plaintiff got the excess site which includes the disputed site shown in plaint ‘B’ schedule. It is for this reason and by observing that the plaintiff should succeed in his suit for declaration of title on the strength of his own title deed, the trial
Court dismissed the plaintiffs suit. But, the lower appellate Court allowed the appeal on the ground that the site mentioned in Ex.A7 is in excess of the site possessed by defendants vendor and that the defendant could not be in possession of the site as mentioned in his title deed Ex.A7. The lower appellate Court also made an observation that the plaintiff might have encroached into the site which is in excess i.e., the disputed site and perfected his title by adverse possession. The approach of the learned appellate Judge is erroneous and the finding is perverse. It may be a fact that the measurements shown in the defendant’s title deed Ex.A7 may be incorrect or the measurements might have been noted incorrectly including excess site more than what his predecessor was having. But that cannot be the basis for declaring the plaintiffs title to the disputed site which is in excess of the site purchased under Ex.Bl by his predecessor in title. The plaintiff has to succeed in his suit for declaration of title on the strength of the evidence established by him in Court and not on the weakness of the case of the defendant.
9. In Morn Mar Basselios Catholicos v. Thukalan Paulo Avira and others – (1) AIR 1959 SC 31, five Judges bench of Supreme Court held “that in a suit for declaration of title, if the plaintiffs were to succeed, they must do so on the strength of their own title.” In that case, the plaintiffs brought the suit for declaration of title as trustees and for possession of Trust properties and also for declaration that the defendants were not the trustees. In that connection, their Lordships observed that in a suit of this description, if the plaintiffs were to succeed, they must do so on the strength of their own title.
10. In Morn Mar Basselios Calholicos v. Most Rev Mar Poulose Athanasius And others, (2) AIR 1954 SC 526, while disposing of a civil appeal in an ejectment
suit, three Judges Bench of the Supreme Court laid down the law thus :
“The plaintiff in ejectment suit must succeed on the strength of his own title. This can be done by adducing sufficient evidence to discharge the onus that is on him irrespective of whether the defendant has proved his case or not. A mere distinction of the defendant’s title in the absence of establishment of his own title carries the plaintiff nowhere”.
A Division Bench of this Court also in Chakicherla Adilakshmamma v. Almakuru Rama Rao and Ors,- (3) . Relying on the judgment of the Supreme Court in AIR 1954 SC 526 (cited supra) held that “in a suit for ejectment, the plaintiff is liable to be nonsuited, if he fails to establish his own title irrespective of the question whether the defendants have proved their case or not.”
11. The law laid down by the Supreme Court and also by the Division Bench of this Court in the ejectment suits is also applicable to the suits for declaration of title. Thus, the plaintiff must succeed by establishing his own title, by adducing satisfactory evidence and he cannot succeed on the weakness of the defendant’s case. In the instant case, the respondent-plaintiff failed miserably to establish his title to the disputed site. His own title deed Ex.B1 does not support his case. The site purchased under Ex.Bl does not extend to the entire extent of the site shown in plaint ‘A’ schedule which includes the disputed site. Therefore, the plaintiff has to be non-suited. The appellate Court has committed error in decreeing the suit by deviating from the settled principles, that in a suit for declaralion of title, the plaintiff must succeed in establishing his title irrespective of the question whether the defendant has proved his case or not. There is no need to refer to the other discussion held by the
appellate Court. Both the questions of law have been answered thus.
12. For the foregoing reasons. I hold that the plaintiff failed miserably to establish his title to the suit property and as such he is not entitled for the reliefs claimed by him in the suit, and the appeal has to be allowed.
13. In the result, the appeal is allowed with costs and the judgment and decree in A.S.No.49 of 1982 under appeal are set aside. The judgment and decree of the trial Court in O.S.No.621 of 1978 dismissing the plaintiffs suit arc restored.