Savitri v. Surendra Mohan Mohana — 1987 DIGILAW 87 (ALL)

JUDGMENT D. S Bajpai, J. - The plaintiff, Surendra Mohan Mohana, filed a Regular Suit No. 1 of 1974 in the court of Civil Judge, Malihabad at Lucknow for declaration that the plaintiff was the landlord of the land mentioned in paragraph 1 of the plaint with a further prayer that a decree of possession be passed in favour of the plaintiff and against the defendant. The plaint allegations were that the plaintiff had purchased a strip of land measuring 27.1/3 feet x 65 feet situate at Singar Nagar, Lucknow from Singar Gooperative Housing Society Ltd., Singar Nagar, Lucknow (hereinafter referred to as the Society) for valuable consideration through a registered saledeed dated 3rd July, 1986. The boundaries of the land were described in paragraph 1 of the plaint. He thereafter alleges to have obtained possession over the said land on 3rd July, 1986. It was alleged that the defendant who used to store some of his wood logs on the adjoining land, placed four logs on 3rd March, 1972 on the land in suit and on being asked to remove the logs the defendant refused to do so. An application under Section 145 of the Code of Criminal Procedure (old) was made by the plaintiff on 24th April, 1972 which was rejected by the Magistrate holding that the defendant was in possession over the land in suit since two months prior to the passing of the preliminary orders. The defendant is said to have denied 'he title of the plaintiff and hence the plaintiff filed the suit for declaration and possession. The defendant contested the suit and filed his written statement. He asserted that the Society was never the owner of the plot in suit and had no title over it. It was further asserted that the Society having no title could not pass any title to the plaintiff. There was a further assertion that the Society was never in possession over that land in suit and the plaintiff also never came in possession of the land at any point of time. A plea that the suit was barred by time was also taken. It was further asserted that the defendant's father Ram Narain was in possession of the land in suit for the last about 40 years and after his death the defendant and his mother came in possession and perfected their title by adverse possession. A plea that the suit was barred by time was also taken. It was further asserted that the defendant's father Ram Narain was in possession of the land in suit for the last about 40 years and after his death the defendant and his mother came in possession and perfected their title by adverse possession. The trial court framed the undernoted four issues : 1. Whether the plaintiff is the owner of the property in suit ? 2. Whether the suit is timebarred ? 3. Whether the suit is undervalued and court fee paid is insufficient ? 4. To what relief, if any, is the plaintiff entitled ? 2. On issue No. 1 the finding recorded by the court below was that the plaintiff had succeeded in proving his case and as such the issue was answered in favour of the plaintiff. On issue No. 2 the trial court recorded a finding that the suit was not barred by time while on issue No. 3 the Civil Judge found that in view of the earlier finding dated 11121974 on the issues which were treated as preliminary issues the plaint having been amended and the deficiency in the court fee having been good the suit was not undervalued and was properly stamped. 3. I have heard learned counsel for the parties at some length and perused the record. The learned counsel for the appellant has urged that the Society not being vested with the right and title to hold the property could not transfer the right in the dispute land to the plaintiff. In this connection it is noteworthy that the plaintiff has not placed on record any documentary evidence to substantiate such a right. The only document relied upon had been a leasedeed dated 3rd July, 1968 which is said to have been executed by the Society in favour of the plaintiff. The leasedeed, inter alia, states that the Society was the owner of the strip of land, which is the subject matter of the suit, and that it had decided to allot and convey the said strip to the plaintiff on, amongst others, the condition that the second party is accepting this allotment entirely at his own sweet will and risk etc. for the consequences whereof the first party shall not be answerable , further indicating that the second party would normally not be entitled to transfer the title of the land to any other person except provided in the will or nominee or legal heir. On having given my anxious consideration to this document which is entitled Allotment ,it is abundantly clear that this cannot be said to be a document transferring interest in the property in the plaintiff. The Society has also not indicated as to how and in what circumstances it became the owner of the land in suit and in any case in every document of title in which the vendor transfers his right and interest to the vendee there is always a recital assuring the vendee of the right and title of the vendor in the property with a further assurance to compensate the vendee in the event of any defect of title in the vendor. The learned counsel for the plaintiffrespondent, however, tried to place on record before this Court a photostat copy of a Notification No. D/Memo(1) RR dated 30th March, 1950 published in the Uttar Pradesh Government Gazette dated 1st April, 1950 by which an area of 39.5 acres was handed over to the Society for the rehabilitation of the refugees in village Kanausi, Pargana Bijnore, in the district of Lucknow. The said notification does not help the Society in establishing its right and title over the land in dispute since neither the notification indicates khasra numbers that make the area of 39.5 acres nor the plaintiffrespondent has, in any case, succeeded in connecting the land in suit with this notification. The sanctioned plan or the layout plan of the Society covering this area of 39.5 acres has also not been placed on record. 4. Learned counsel for the appellant has placed reliance on a decision of the Lahore High Court reported in AIR 1919 Lahore page 156 (Mst. Gulab Devi v. Mouji Ram and another] wherein it has been held that a person who sets up a title to property by purchase must prove that his vendor had a title in the property sold. Learned counsel for the appellant has placed reliance on a decision of the Lahore High Court reported in AIR 1919 Lahore page 156 (Mst. Gulab Devi v. Mouji Ram and another] wherein it has been held that a person who sets up a title to property by purchase must prove that his vendor had a title in the property sold. Their Lordships of the Privy Council in Jagdish Narain v. Nawab Said Ahmad Khan ( AIR 1946 PC 59 ) held : The plaintiffs were suing in ejectment, and they could only succeed on the strength of their own title. There was no obligation upon the defendants to plead possible defects in the plaintiffs' title which might manifest themselves when the title was disclosed. It was sufficient that in the written statements the defendants denied the plaintiffs' title, and under this plea they could avail themselves of any defect which such title disclosed. It will thus be seen that in the instant case the plaintiff has failed to establish his title and the defendant having denied the title of the plaintiff it was incumbent on the plaintiff to establish his title and for that it was necessary for the plaintiff to disclose the right and title of the Society from which the plaintiff claimed to nave derived his title. The same view has been taken by a Division Bench of the Bombay High Court in Tatoba Ganu v. Tarabai (AIR 1957 Bombay 280) wherein the court has held in paragraph 11 that : It is for the plaintiff to prove his title and the Court is not concerned with the weakness of the title of the defendant. The defendant may be a trespasser, but as a defendant in possession, he is entitled to ask the plaintiff to prove strictly his title. As the plaintiff has no title, the plaintiff's suit must fail. The Supreme Court in Moran Mar Basselior v. Thukalan Paulo Avira and others (AIR 1959 SC page 31) has taken similar view as regards the burden of proof. As the plaintiff has no title, the plaintiff's suit must fail. The Supreme Court in Moran Mar Basselior v. Thukalan Paulo Avira and others (AIR 1959 SC page 31) has taken similar view as regards the burden of proof. Similar view has also been taken by their Lordships of the Supreme Court in Brahma Nand Puri v. Neki Puri (AIR 1965 SC page 1506) reiterating the rule of law in the following terms : In a suit for ejectment the plaintiff has to succeed or fail on the title that he establishes and if he cannot succeed on the strength of his title his suit must fail notwithstanding that the defendant in possession has no title to the property. and I have no hesitation in holding that the plaintiff having failed to prove his title and the title of the plaintiff's vendor having not been proved, as observed by the Bombay High Court in Tatoba Ganu v. Tarabai (Supra), even if the defendant was a trespasser, the plaintiff could not succeed on the weakness of the defendant's case. The same view has been reiterated by this Court in a case reported in 1982 Allahabad Weekly Cases, page 665. I, accordingly, hold that the finding recorded by the Court below on issue no. 1 to the effect that the plaintiff had succeeded in proving his title is erroneous since it is based only on the weakness of the oral evidence of the defendant. There it nothing to indicate in the findings recorded that the plaintiff had any right in the property or the Society had any right in the property. The finding recorded by the court below on issue no 1 is accordingly set aside and the issue is decided in negative and against the plaintiff. In view of the fact that the plaintiff's title is not proved it is not necessary for this Court to enter into the findings recorded on issue nos. 2 and 3 since no relief can be granted to the plaintiff unless he is held or found to be vested with right and title in the property in suit. 5. In view of the fact that the plaintiff's title is not proved it is not necessary for this Court to enter into the findings recorded on issue nos. 2 and 3 since no relief can be granted to the plaintiff unless he is held or found to be vested with right and title in the property in suit. 5. Learned counsel for the respondent has agreed with the proposition of law cited by the learned counsel for the appellant and failed to point out, much less establish the title of the plaintiff or the vendorSociety from which the plaintiff is said to have derived his title despite opportunity being given by this Court also, in pursuance to which he filed a Government Notification. 6. In the result, the appeal is allowed with costs throughout and the judgment and decree of the court below are set aside. Regular Suit No. 1 of 1974, Surendra Mohan Mohana v, Chandey Pahalwan alias Chandra Pal, is dismissed. (Appeal allowed.)