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2004 DIGILAW 438 (MP)

VISHNU SHARAN v. AJUDDHIBAI

2004-05-07

A.K.SHRIVASTAVA

body2004
A. K. SHRIVASTAVA, J. ( 1 ) THE defendants have preferred this appeal against judgment and decree passed by appellate Court affirming the judgment and decree of learned trial court decreeing the suit of the plaintiffs for declaration, injunction and possession. ( 2 ) ORIGINAL plaintiff is Sangram Singh whose legal representatives are respondent nos. 1 to 7. Sangram Singh filed a suit on the basis of title that he is the Bhumiswami of Survey No. 56 area 40 Bighas of Village muhasa, Tah. Pichhore. According to him, out of 40 Bighas an area 5. 16 acres is the disputed land. According to the plaintiff on 3-8-1968, the defendants by removing mound (merh) between survey Nos. 56 and 57 took possession of the disputed land, hence, present suit has been filed. ( 3 ) THE defendants by filing their written statement denied the plaint averments. It has been specifically denied by them that plaintiff is the Bhumiswami of Survey No. 56, they also pleaded that the plaintiff has not specifically pleaded the source of his title. Other averments pleaded in the plaint have also been denied. Learned trial Court after framing issues and recording evidence of the parties, decreed the suit. The appeal which was preferred, has been dismissed by the impugned judgment and decree, hence, this second appeal. ( 4 ) THIS second appeal was admitted on 9-7-2001 on the following substantial questions of law : (1 ). "whether the Courts below were justified in determining the title of plaintiff on the basis of Khasra entries? (2) Whether, in the absence of document of title plaintiff has established his title over the suit lands?" ( 5 ) IT has been contended by Shri Anil jain, learned counsel for the appellants that the plaintiff filed the suit on the basis of his title which was specifically denied by the defendants and therefore, it was incumbent upon the plaintiff to disclose and prove his title, having failed to do so, he Cannot succeed merely on the basis of khasra entries, which are having only presumptive value and the title of the land in question of plaintiff cannot be determined on its basis. In support of his contention, he has placed reliance on the decision of this Court in sukhia alias Sushma v. Gambhira, (2000) 2 MPLJ 405 and Mangilal v. Kunwar Bai, 1989 RN 65. In support of his contention, he has placed reliance on the decision of this Court in sukhia alias Sushma v. Gambhira, (2000) 2 MPLJ 405 and Mangilal v. Kunwar Bai, 1989 RN 65. ( 6 ) COMBATTING the aforesaid submissions of learned counsel for the appellant, it has been contended by Shri K. M. Mishra, learned counsel appearing for the plaintiff/ respondents that no doubt the plaintiff did not file any document of his title but on the basis of Khasra entries, he can very well establish his title and learned Courts below did not err in decreeing the suit of the plaintiff. In support of his contention, he has placed reliance on the case of R. V. E. Venkatachala Gounder v. Arulmigu visweswaraswami and V. P. Temple, (2004) 13 AIC 389 : ( AIR 2003 SC 4548 ). ( 7 ) AFTER having heard learned counsel for the parties, I am of the view that this appeal deserves to be allowed. ( 8 ) ON going through para 2 of the plaint, it is clear like a noon day that the plaintiff has come forward on the basis of his title with specific averment that he is bhumiswami of survey No. 56, a part of which, area 5-16 acres has been encroached by the defendants and which is the land in question. In para 2 of the plaint, it has specifically been pleaded that survey No. 57 is of defendants and both survey numbers are adjoining to each other. ( 9 ) THE defendants submitted an application under Order 6, Rule 5 of CPC on 11-3-1976 that the plaintiff should disclose his source of title but that application was rejected. Earlier on 25-2-1975 the plaintiff also filed an application for production of patta i. e. document of the source of title of the plaintiff, but that application was also rejected. ( 10 ) IT be seen that the plaintiff has filed a suit on the basis of title which has been denied by the defendants and therefore, it was incumbent on him to prove his title by filing the document of his title in evidence. Having not done so, in my opinion, the suit of the plaintiff cannot be decreed. Plaintiff sangram Singh has specifically stated in his testimony that a patta was obtained by him from Tahsil 12-13 years ago. Having not done so, in my opinion, the suit of the plaintiff cannot be decreed. Plaintiff sangram Singh has specifically stated in his testimony that a patta was obtained by him from Tahsil 12-13 years ago. The plaintiff was examined on 23-2-1977, therefore, it would mean that patta must have been obtained by him somewhere in the year 1964-65. In the evidence though a case of patta has been set forth by the plaintiff but there is no pleading to that effect and the plaint is silent in that regard. ( 11 ) IN my opinion, when a suit is based on title, filing of document is presupposed specially when the title has been denied by defendants. In the present case, despite there being specific objection raised by the defendants in their written statement, the plaintiff did not file the document of his title i. e. patta and therefore, in my opinion, the title of the plaintiff cannot be determined in the absence of its document. In this context, decision of Sukhiya ( 2000 (2) MPLJ 405 ) (supra) throws sufficient light on the point in controversy. Learned counsel for the respondent by placing reliance on the case of r. V. E. Venkatachala Gounder, AIR 2003 sc 4548 ) (supra) argued that when the source of title has not been filed, the suit cannot be dismissed but in the present case, when the plaintiff was specifically asked to produce the document of title by filing applications. Under Order 6, Rule 17 of CPC and production of document, according to me the plaintiff was obliged to file the document showing source of his title. Having not done so, in my opinion, the suit of the plaintiff which is based on title cannot be decreed. In the case of R. V. E. Venkatachala Gounder (supra) in para 27, their Lordships of Apex court categorically held that 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 defendants from his possession over the suit property. Therefore, the case of R. V. E. Venkatachala Gounder (supra) cannot be said to be against the appellant. Therefore, the case of R. V. E. Venkatachala Gounder (supra) cannot be said to be against the appellant. ( 12 ) THUS, substantial question of law No. 2 is answered that in the absence of document of title, the plaintiff has failed to disclose his title over the suit land. ( 13 ) COMING to the first substantial question of law, it can be very well said that khasra entries are having only presumptive value of it's correctness under Section 117 of the M. P. Land Revenue Code. In a case, based on title, if the source of title is not produced, in my opinion, merely on the basis of khasra entries, it cannot be held that the plaintiff is the Bhumiswami of the suit property specially when the defendants have seriously raised objection of the title of the plaintiff. Khasra entries may be piece of corroborative evidence but in the peculiar facts and circumstances of the case, merely on its basis, a suit which is based on title cannot be decreed. Initial burden to prove the title was on the plaintiff and he should by placing cogent evidence prove his title. The burden of proof is to be discharged by the party with whom it lies and after discharging the burden onus of proof is shifted to the opposite party. See Raghavamma v. Chenchamma, AIR 1964 SC 136 136. Thus, the substantial question of law No. 1 is answered that in the peculiar facts and circumstances of the case, the Courts below were not justified in determining the title of the plaintiff on the basis of Khasra entries, specially when the document of title is with the plaintiff and he failed to produce it. ( 14 ) IN the result, appeal succeeds and is hereby allowed. The suit of the plaintiff is hereby dismissed with costs. Counsel's fee rs. 1000/-if pre-Certified. Appeal allowed. .