Palaniswamy Konar v. Gopala Konar — 1996 DIGILAW 1276 (MAD)

Judgment :- 1. First defendant in O.S. No. 109 of 1983, on the file of Subordinate Judge, Pudukkottai, is the appellant herein. 2. Two plaintiffs filed the above suit claiming title to B and C Schedule properties respectively, and permitting them to recover the same from the first defendant, and in the alternative to partition the entire A Schedule property into two equal halves and one share to be allotted to plaintiffs, and in the event of such partition, as far as possible B and C Schedule properties may be allotted to their share in equity. Mesne profits was also claimed from first defendant. 3. Material averments in the plaint are as follows: B and C Schedule properties are portions of A Schedule. The entire A Schedule belonged to the family consisting of defendants 2 to 5. The second defendant is entitled to one half and defendants 3 to 5 are entitled to the other half. It is said that by a partition arrangement between them, second defendant was in enjoyment of B and C Schedule properties. As per Exx. A-1 and A-2 dated 21.6.1975, both the plaintiffs purchased the B and C Schedule items from the second defendant. 4. Third defendant, who is the father of second defendant, executed an agreement for sale in favour of first defendant. The agreement was to convey the entire A Schedule properties Second defendant was not a party. But the agreement stated that the third defendant is acting as agent of the second defendant. Since the sale deed was not executed in terms of the agreement, the first defendant herein filed O.S. No. 44 of 1975, on the file of District Judge Pudukkottai, for specific performance of the agreement for sale. 5. The trial Court decreed the suit in its entirety. But, as per Ex. A-3, this Court held that the third defendant is not entitled to enter into an agreement on behalf of the second defendant, and the decree was modified. First Defendant was given a decree for specific performance for one half share belonging to 3rd defendant on payment of the entire sale consideration stipulated in the deed. That decision ha become final. A-3, this Court held that the third defendant is not entitled to enter into an agreement on behalf of the second defendant, and the decree was modified. First Defendant was given a decree for specific performance for one half share belonging to 3rd defendant on payment of the entire sale consideration stipulated in the deed. That decision ha become final. It is said that when the second defendant sold the properties to the plaintiffs, first defendant became infuriated and, in the suit O.S. 44 of 1975, filed by him he applied for injunction, and, on the basis of the interim order passed thereon, trespassed into the entire property and came into possession. Even though Ex. A-3 decree has become final, first defendant has not surrendered the portion that belongs to the second defendant now claimed by plaintiffs. His possession is illegal and, therefore, the present suit is filed for declaration that the plaintiffs are entitled to B and C schedule items, to have the same recovered from first defendant, with the alternative relief as stated above. 6. Defendants 4 and 5 are also impleaded in the suit as sons of the third defendant. 7. In the written statement filed by the appellant, he said that the entire A Schedule property belonged to one Adaikkammal and on her death, the same was inherited by her two daughters Pappammal and Sevanthayee. Both were entitled to equal share. The third defendant purchased the share of Pappammal on 1.12.1948. The second defendant claimed the remaining half belonging to Sevanthayee by virtue of an adoption deed dated 20.1.1956. It was never a family property of the third defendant. The third defendant entered into an agreement for sale with the first defendant agreeing to sell the entire A Schedule. This Court has held that the third defendant has no authority to sell the property belonging to the second defendant since he is neither an agent nor has he acted as manager of family. In that case, both parties were under the impression that the second defendant is an adopted son of Sevanthayee. 8. Sevanthayee had four daughters, namely, Palaniyayi Ammal, Vellai Ammal, Achi Ammal and Chinnammal. All the four daughters inherited one-fourth share in the property. Of the four daughters, Palaniyayee Ammal and Vellai Ammal filed O.S. 58 of 1975 (Ex. B-1) for partition. 8. Sevanthayee had four daughters, namely, Palaniyayi Ammal, Vellai Ammal, Achi Ammal and Chinnammal. All the four daughters inherited one-fourth share in the property. Of the four daughters, Palaniyayee Ammal and Vellai Ammal filed O.S. 58 of 1975 (Ex. B-1) for partition. Since second defendant was also claiming some right as an adopted son, he was also impleaded as a party to the suit. The daughters of Sevanthayee challenged the adoption and also the adoption deed. In that case, one of the issues that came for consideration was, whether second defendant who is the executant of Exs. A-1 and A-2, is the adopted son of Sevanthayee. It was held that there is no adoption and the adoption deed dated 20.1.1956 is not a valid document. The present plaintiffs who have taken Exs. A-1 and A-2 documents from second defendant cannot, therefore, take any share since the document is executed only in his capacity as adopted son. If there is no adoption, the plaintiff also cannot get any title. In the judgment in O.S. No. 44 of 1975, neither the question of adoption was in issue, nor was it decided. Ex. B-1 judgment was taken in appeal before this Court in A.S. 200 and 330 of 1978. The appeals were also dismissed, confirming the judgment of the trial Court which declared that there is no adoption. The judgment of this Court is marked as additional evidence in appeal as Ex. B-3. It was, therefore, contended that the plaintiffs have no title to the property and they cannot treat the first defendant/appellant herein as a co-owner. It was also contended that if they are claiming a share of Sevanthayee, her daughters are necessary parties to the suit. He is not bound to hand over possession to the plaintiffs as demanded. He prayed for dismissal of the suit. 9. Second defendant who is the vendor of Exs. A-1 and A-2, said that he was never adopted and he has executed a document in favour of plaintiff only on the request of the father, third defendant. Plaintiff is not getting any right to the property. Third defendant reiterated that the second defendant is his adopted son and he has validly executed the sale deeds in favour of plaintiffs. A-1 and A-2, said that he was never adopted and he has executed a document in favour of plaintiff only on the request of the father, third defendant. Plaintiff is not getting any right to the property. Third defendant reiterated that the second defendant is his adopted son and he has validly executed the sale deeds in favour of plaintiffs. It is said that the close relationship between first defendant and second defendant has now caused change in the relationship between them, and he supported the case of the plaintiffs. 10. The trial Court took oral and documentary evidence. First plaintiff was examined as P.W. 1 and Exx. A-1 to A-9 were marked. On the side of the defendants, the first three defendants were examined as D.Ws. 1 to 3 respectively and Exx. B-1 and B-2 were marked. The trial court held that since the first defendant has admitted in the earlier proceedings that second defendant is an adopted son and is owner of one half share, he cannot contend otherwise in this suit. It was further held that the decision in O.S. 58 of 1975 has not become final and since the plaintiffs and first defendant are not parties to the same, the decision is not res judicata. In view of the admission by the first defendant, the trial Court gave a decree as prayed for. 11. Aggrieved by the judgment, the first defendant preferred A.S. 127 of 1985. It was in that Appeal, Ex. B-3 was marked as additional evidence. The lower Appellate Court also held that the first defendant cannot withdraw his earlier statement that the second defendant has no title. Further, in the earlier suit O.S. 48 of 1975, plaintiffs were also parties along with second defendant, in which suit, it was held that the third defendant has got only half share. In view of the binding decision, the lower Appellate Court held that the plaintiffs claim is justified and the preliminary decree passed by the trial Court was confirmed. The lower Appellate Court further held that even though O.S. 58 of 1975 was upheld by this Court as per Ex. B-3 judgment, there is no change in the result. It is against the concurrent judgment, the first defendant has preferred this Second Appeal. 12. The lower Appellate Court further held that even though O.S. 58 of 1975 was upheld by this Court as per Ex. B-3 judgment, there is no change in the result. It is against the concurrent judgment, the first defendant has preferred this Second Appeal. 12. At the time of admission of the Second Appeal, the following substantial questions of law have been raised for consideration:— “1) Whether the judgments of the lower Courts are contrary to the decision of this Court in A.S. 330 of 1978? and 2) Whether the suit without impleding the necessary parties is maintainable?” 13. The fact that the property originally belonged to Adaikkammal and on her death it devolved on her two daughters, Pappammal and Sevanthayee in equal snares is not seriously disputed. Third defendant purchased the half share belonging to Pappammal is not a matter in dispute. Second defendant is the son of third defendant. It was his case that the second defendant was given in adoption to Sevanthayee and thereafter he has ceased to be a member of his family. But the third defendant executed an agreement f or sale for the entire property even though he had right only for one half. In that agreement, he said that he has executed a deed on behalf of second defendant also. When the sale deed did not take place, a suit was filed by the appellant as O.S. 44 of 1975 for specific performance. The trial Court held in that case that the third defendant was acting as ‘Kartha’ and was, therefore, competent to enter into an agreement on behalf of the second defendant also. A decree was passed in terms thereof. 14. Second defendant along with the present plaintiffs, filed an appeal as A.S. 704 of 1976. There was another appeal filed by the present 5th defendant along with the third defendant as A.S. 118 of 1977 against the judgment in O.S. 44 of 1975. Both these Appeals were disposed of by Ex. A-3, judgment dated 4.12.1988. In that case, a Division Bench of this Court held that the third defendant herein is not entitled to enter into an agreement on behalf of his son, second defendant. Thereafter, the question whether the first defendant herein is entitled to get at least specific performance of the part of the property was considerate. A-3, judgment dated 4.12.1988. In that case, a Division Bench of this Court held that the third defendant herein is not entitled to enter into an agreement on behalf of his son, second defendant. Thereafter, the question whether the first defendant herein is entitled to get at least specific performance of the part of the property was considerate. This Court held that the first defendant herein is entitled to get specific performance of the part of the property on his own behalf and on behalf of his sons, defendants 3 to 5 on payment of the entire balance sale consideration. The question whether the first defendant herein is entitled to get any damage from third defendant was not decided, for, it was held that it was unnecessary for the disposal of the Appeal, The first defendant herein was directed to deposit the entire sale consideration, and, on such deposit, the third defendant was directed to execute a sale deed in respect of the property. Ex. B-1 is the trial Court judgment and Ex. A.3 is the Appellate Court judgment. Both the Courts below have given much importance to the decision in this case for decreeing the suit in favour of plaintiff. 15. Simultaneously, another litigation was going on between the daughters of Sevanthayee as O.S. 58 of 1975. In that suit, second defendant herein was also a party, though the present plaintiffs who have taken sale deeds anterior to that suit, were not parties to the suit. The present second defendant was impleaded on the allegation that he is intermeddling with the Estate of Sevanthayee calling himself as her adopted son. Plaintiff in O.S. 58 of 1975 has challenged the alleged adoption of the second defendant. The document alleged to have been executed by Sevanthayee evidencing an adoption was challenged in that suit. The parties joined in issue as to whether the 2nd defendant is an adopted son of Sevanthayee. The trial Court, as evidenced by Ex. B-2 judgment, held that the adoption deed is invalid and there was no adoption at all. Ex. B-3 judgment of this Court was also confirmed in that decision, holding that there is no adoption. 16. Exx. A-1 and A-2, are the two sale deeds executed by the second defendant claiming right over the property only in his capacity as an adopted son. Ex. B-3 judgment of this Court was also confirmed in that decision, holding that there is no adoption. 16. Exx. A-1 and A-2, are the two sale deeds executed by the second defendant claiming right over the property only in his capacity as an adopted son. If there is no adoption, he will not be a legal heir to Sevanthayee. If that is taken into consideration, Exx. A-1 and-2 will be invalid, and the plaintiffs also will not be getting any title. Naturally, the suit for declaration or for partition also will have to be disallowed. But the Courts below were of the view that in the earlier case, the appellant admitted title of the second defendant and that was why he was given only half share in the specific performance suit. The Courts below have also relied on certain portions of the deposition and have also held that the principle of estoppel applies as against the appellant in contending that the second defendant had no title. The courts below were also of the view that even the second defendant is not entitled to go back to his case wherein he has represented that he is an adopted son. How far the said conclusion by the Courts below is correct alone is to be decided. 17. For the said purpose, we have to take into consideration what is the scope in a suit for specific performance, enforceability of an agreement for sale, and what was the matter that was decided in that case. 18. In a suit for specific performance, title to the property is not a matter in issue. Appellant herein has taken an agreement for sale from third defendant. Third defendant represents that second defendant is also an owner, and as agent, he is executing the agreement. When a person takes the agreement, the law contemplates that if he wants to have a document executed, he must agree to the terms of the agreement. Naturally, the appellant was bound by the terms of the agreement and only then he can institute the suit O.S. No. 44 of 1975. It is not a case of second defendant admitting that he has got title, or third defendant making a statement that the second defendant had antecedent title. In the suit for specific performance, there was also no issue as to whether second defendant has got any title at all. It is not a case of second defendant admitting that he has got title, or third defendant making a statement that the second defendant had antecedent title. In the suit for specific performance, there was also no issue as to whether second defendant has got any title at all. The only issue was, whether the 3rd defendant in this case was competent to represent the second defendant. What was the point that was decided in Ex. A3 is to be seen. This Court has framed the point to be decided thus:— “Therefore, the first question to be considered, is whether the first defendant was duly authorised to enter into the agreement by the 5th defendant in relation to his separate property?” This was the only point decided in that case. Both the appellant and third defendant admitted the terms of the agreement wherein the title of the second defendant was in doubt. Everyone thought that the second defendant has also got a right and he is the adopted son. Believing that statement, both parties joined in issue whether the father was entitled to sell the property of the son. Courts below found that the father was not authorised, and the agreement is valid to that extent. According to me, the decision in Ex. A3 will not confer any title, nor will the contention raised therein bar the appellant from taking a contention in this case that the second defendant did not have any title to the property. 19. It is settled law that admission alone will not confer title. In Sarkar on Evidence, 14th Edition (1993), commenting on Section 18 at page 321, it is said thus:— “It is well-settled that title to land cannot pass by admission when the statute requires a deed. An admission could not confer title, but it would only shift the burden to prove want of title in persons in whose favour the admission is made”. 20. In AIR 1966 SC 605 ( Ambika Prasad Thakur v. Ram Ekhal Pai ), (at page 612), their Lordships said thus:— “..In the circumstances, this admission has weak evidentiary value. In this suit, the plaintiffs do not claim tenancy right either by express grant or by adverse possession, title cannot pass by mere admission.” 21. 20. In AIR 1966 SC 605 ( Ambika Prasad Thakur v. Ram Ekhal Pai ), (at page 612), their Lordships said thus:— “..In the circumstances, this admission has weak evidentiary value. In this suit, the plaintiffs do not claim tenancy right either by express grant or by adverse possession, title cannot pass by mere admission.” 21. The only other ground that requires consideration is, how far the principle of estoppel will prevent the defendants from agitating the lack of title. Sections 17 and 31 of the Evidence Act is an answer to the same, and the only ground on which title is conferred on the principle of estoppel is recognised in Sec. 43 of the Transfer of Property Act, which deals with feeding the grant by estoppel. 22. In AIR 1973 S.C. 814 (Banwari Lal & others v. Sukhdarshan Dayal), a sale deed was taken and registered. A map was also prepared. The map was not appended to the document, nor was it registered. There was some discrepancy in the description of property when compared with the map as described in the sale deed. The question was, which is to prevail The contention was that the vendor represented the description of property as stated, in the map and, therefore, they have obtained title. Their Lordships held thus:— “..Evidence regarding the representation is vague and true facts were known to those who purchased the sub-plots after Plot No. 19 was sold to Manohari Devi in 1946. Besides, estoppel is but a rule of evidence and except in cases like those under Section 43 of the Transfer of Property Act, when a grant is fed by estoppel, the rule does not operate to create interest in property regarding which representation is made . . .” (Emphasis Supplied) Even in cases where there was representation made, unless Section 43 applies, there cannot be any question of title passing on the plaintiffs in this case. If Section 43 is to apply, plaintiffs will have to prove that subsequent to Exx. A-1 and A-2, second defendant has obtained title to the property and that title will automatically pass to them. They have no such case. The principle of estoppel also will not apply in this case, since plaintiffs have no case that it is because of the representation made by the appellant, that they took Exs. A-1 and A-2. A-1 and A-2, second defendant has obtained title to the property and that title will automatically pass to them. They have no such case. The principle of estoppel also will not apply in this case, since plaintiffs have no case that it is because of the representation made by the appellant, that they took Exs. A-1 and A-2. It was the representation made by second defendant that he is the adopted son. Plaintiffs have no further case that on the representation made by appellant, they acted to their detriment. In fact, the appellant wanted the right of the second defendant also to be taken by him in the suit for specific performance. When we apply the principle of admission barring the appellant from contending want of title, we have to consider only Secs. 17 and 31 of the Evidence Act. Section 17 says that ‘An admission is a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned’. I have already said that it is not the appellant who represented the matter and the plaintiffs did not act on the same. So, the principle of estoppel also may not have any application. If there is no estoppel as against the first defendant, the admission which he has made in the earlier proceedings will have no evidentiary value. He can withdraw from the admission and contend that the real state of affairs is otherwise. The only effect of the admission is that the burden of proof that the second defendant has no title lies upon him. 23. To prove that the second defendant has no title, Exs. B-2 and B-3 are sufficient. The issue in that case was, whether the second defendant is the adopted son. It is concluded by Ex. B-2 that the adoption deed is invalid and he was never adopted. It is confirmed in Ex. B-3 judgment. 24. What is the evidentiany value of Exs. B-2 and B-3. Courts below rejected Exs. B-2 and B-3 on the ground that the plaintiffs and first defendant are not parties to the litigation. It is said that the second defendant has already parted with his right, and the plaintiffs are not claiming under him. Exs. B-3 judgment. 24. What is the evidentiany value of Exs. B-2 and B-3. Courts below rejected Exs. B-2 and B-3 on the ground that the plaintiffs and first defendant are not parties to the litigation. It is said that the second defendant has already parted with his right, and the plaintiffs are not claiming under him. Exs. B-2 and B-3 are filed not to apply the principle of res judicata, so as to bind the plaintiffs. Second defendant is a party in this suit as well as in the earlier suit. In both these proceedings, the issue as against the second defendant is, whether he has got title to convey, and whether he is the adopted son. To a certain extent, his status in family was in issue. Judgments which are not covered under Sec. 11, C.P.C. and which do not come under Sec. 41 of the Evidence Act are made relevant under certain other provisions of the Evidence Act. One of the Sections is Sec. 13. 25. In AIR 1931 Privy Council 89 (Gohimda Narayan Singh v. Sham Lal Singh and others), their Lordships said that “A judgment not inter partes holding that a partition of a certain estate was proved is only admissible under the provisions of Ss. 13 and 43 as establishing a particular transaction in which the partibility of the estate was asserted and recognized. The reasons upon which the judgment is founded are no part of the transaction and cannot be so regarded nor can any finding of fact there came to, other than the transaction itself, be relevant to prove partition in a subsequent suit”. 26. In AIR 1937 P.C. 69 (Maharaja Sir Kesho Prasad Singh Bahadur v. BahuriaMt.Bhagjogna Kuer and others), at page 75, their Lordships said that ‘A judgment is not admissible as evidence against one who is a stranger to the suit. But the judgment in a prior suit together with the plaint which preceded it and the steps in execution which follow it are evidence of an assertion by the holder of a judgment of the right which he claims to acquire and are then admissible in evidence of his right. Such judgment is of great evidence even against third parties’. 27. Such judgment is of great evidence even against third parties’. 27. In AIR 1954 S.C. 606 ( Sital Das v. Sant Ram ), their Lordships said thus:— “We agree with the High Court that in the absence of any evidence to show as to who propounded this pedigree which the Subordinate Judge acted upon, it is not possible to say that it was an admission by Kishore Das through whom Ishar Das lays his claim and consequently the pedigree would not be an admission relevant under section 21 of the Indian Evidence Act. But the judgment itself, we think, can be received in evidence under Section 13 of the Evidence” Act as a transaction in which Kishore Das, from Whom Ishar Das purports to derive his title, asserted his right as a spiritual collateral of Mangal Das and on that footing got a decree. .. .” (Emphasis Supplied) 28. In (1983) 3 SCC 118 =96 L.W. 93 S.N. (State of Bihar v. Radhakrishna Singh and others), in paragraph 125, their Lordships said that “It is now settled law that judgments inter partes are inadmissible in evidence barring exceptional cases which we shall point out hereafter’. In paragraph 129, their Lordships approved the decision reported in AIR 1941 Calcutta 193 (Gadadhar Chowdhury v. Sarat Chandra Chakravarty) wherein their Lordships of a Division Bench of the Calcutta High Court observed that ‘Though the recitals and findings in a judgment not inter partes are not admissible in evidence, such a judgment and decree are, in our opinion, admissible to prove the fact that a decree was made in a suit between certain parties and for finding out for what lands the suit had been decreed’. Their Lordships of the Supreme Court said that ‘This, in our opinion, is the correct legal position regarding the admissibility of judgments not inter partes ! Finally, their Lordships in paragraph 135 of that judgment have said that ‘The cumulative effect of the decisions cited above on this point clearly is that under the Evidence Act a judgment which is not inter partes is inadmissible in evidence except for the limited purpose of proving as to who the parties were and what was the decree passed and the properties which were the subject-matter of the suit’. 29. If this is the legal position, the judgments Exs. 29. If this is the legal position, the judgments Exs. B-2 and B-3 can be relied on for the purpose of showing that a decree was passed against the second defendant wherein he asserted that he was the adopted son and where his contention was repelled. It was further found that the adoption deed is not genuine, and he has nothing to do with the family of Sevanthayee. The judgment can be relied on for one more purpose as held in 1995 Suppl. (2) SCC 531 ( Virupakshayya Shankarayya v. Neelakanta Shivacharya Pattadadevaru ,) wherein their Lordships said that judgment not inter partes can be accepted as judicial precedent. The judgment of this Court Ex. B-3, on the same principle, can be accepted as judicial precedent, wherein the very issue whether the second defendant was an adopted son was the matter in issue. In paragraph 9 of the judgment (at page 534 in the said Supreme Court decision) their Lordships held thus:— “In the aforesaid premises, the judgment of the Privy Council, even though the same did not bind the plaintiff on the principle of res judicata, was definitely a relevant circumstance to be taken note of because of what has been stated in Section 42 of the Evidence Act. What we, however, find is that the High Court had only referred to the earlier decision without examining the question as to whether law permitted a contrary view to be taken on the self-same issue. According to us, the issue having been finally determined at the highest level, the same could not have been re-examined, which exercise, to start with, was undertaken even by a Civ il Judge”. 30. The above decision was followed by Srinivasan, J., as he then was, in the decision reported in 1996-1-L.W. 485 (Kathinam Nadar and another v. Arulmighu Hanumantharayar Bhajanai Madam, etc.). In paragraph 18 of the judgment, the learned Judge held thus:— “The above judgment of the Supreme Court places the matter beyond doubt. 30. The above decision was followed by Srinivasan, J., as he then was, in the decision reported in 1996-1-L.W. 485 (Kathinam Nadar and another v. Arulmighu Hanumantharayar Bhajanai Madam, etc.). In paragraph 18 of the judgment, the learned Judge held thus:— “The above judgment of the Supreme Court places the matter beyond doubt. Even if the judgment of the High Court in the prior proceedings, cannot be treated as a judgment in rem, it can certainly be treated as a precedent in as much as it decides the character of a temple., It should be noticed that the question whether a temple is a private or a public one is essentially between the persons who claim it to be private temple and the Hindu Religious and Charitable Endowments Department. Once as between them the said question has been decided one way or other, that should be treated as a precedent in a subsequent case if the question arises between some third parties and one of the parties to the earlier proceedings.” 31. If the status of the second defendant as adopted son was negatived by this Court and that becomes relevant, it is for the plaintiffs to adduce evidence to show that in spite of Exx. B-2 and B-3, the second defendant is an adopted son. In the decision reported in AIR 1922 P.C. 241 =(1924) 20 L.W. 770 ( Midnapur Zamindari Co. Ltd. , v. Naresh Narayan Roy ), their Lordships said as follows:— “Their Lordships do not consider that this will be found an actual plea of res judicata, for the defendants, having succeeded on the other plea, had no occasion to go further as to the finding against them; but it is the finding of a Court which was dealing with facts nearer to their ken than the facts are to the Board now, and it certainly creates a paramount duty on the appellants to displace the finding, a duty which they have not been able to perform ”. (Emphasis Supplied) 32. In this case, plaintiffs did not adduce any evidence regarding adoption. They were satisfied with the so called admission and agitated the principles of estoppel to get a decree in their favour. When they have no relevance and will not confer title on the plaintiffs, better evidence ought to have been adduced by them. That they have miserably failed. In this case, plaintiffs did not adduce any evidence regarding adoption. They were satisfied with the so called admission and agitated the principles of estoppel to get a decree in their favour. When they have no relevance and will not confer title on the plaintiffs, better evidence ought to have been adduced by them. That they have miserably failed. Courts below have not given importance to Ex. B-3 judgment. They brushed aside the same as if the plaintiff is not a party. Question No. 1, is, therefore, to be found in favour of the appellant. It is further settled law that in a suit for declaration of title, plaintiff has to win or fall on the basis of his evidence, and he cannot rely upon the weakness of the defendants case. 33. In this case, I have already said that plaintiffs are only relying on the weakness of the defendants case, namely, the so called admission. On question No. 2, I find that the same really does not arise for consideration. 34. The suit is one for declaration of title and recovery of possession, to the defendant No. 1. The daughters of Sevanthayee may not be necessary parties to this suit. Question No. 2 is, therefore, unnecessary. 35. In the result, I set aside the judgments of both the Courts below, by allowing the Second Appeal. Suit filed by the plaintiffs will stand dismissed. The appellant will be entitled to his costs in this Court.