Judgment :- (Appeal filed under Section 100 C.P.C. against the Judgment and Decree dated 27.1.194 and made in A.S.No.105 of 1994 on the file of the District Court, Villupuram, confirming the Judgment and Decree dated 18.1.1990 made in O.S.No.152 of 1984 on the file of the District Munsif Court, Tindivanam.) The unsuccessful defendant before the Courts below concurrently is the appellant. 2. The respondent as plaintiff filed the suit for partition and separate possession of her alleged ½ share in the suit properties on the following grounds: viz., that the suit properties originally belonged to one Thanappa Gounder as his self acquired properties, that he died intestate leaving a son by name Venkatachalam and a daughter by name Annammal as his heirs, that since the properties were owned by Thanappa Gounder as his self acquired properties, Annammal was entitled to ½ share, which she had sold to the plaintiff on 30.1.1984, that the defendant is enjoying the properties, having purchased the same, as if all the properties belonged to Venkatachalam, though Venkatachalam was entitled to only ½ share and that since the claim for partition was negatived, which should be considered by the Court, granting the relief as prayed for. 3. The defendant in the original written statement would contend that the suit properties originally belonged to Thannappa Gounder and his son Venkatachala Gounder as Hindu Joint Family properties, that on the death of Thanappa Gounder in the year 1970, Venkatachalam inherited the same by survivorship and sold to the defendant on 20.1.1972, that he prescribed title to the suit property also by adverse possession, since enjoying the same well over for 12 years, that Annammal, the alleged vendor of the plaintiff is not the daughter of Thanappa Gounder, through legally wedded wife, whereas she is the daughter of Thanappa Gounder through one Panjali, who was already married and left her husband, lived with Thanappa Gounder and therefore, the plaintiff is not entitled to partition, thereby praying the suit to be dismissed. 4. In the Additional Written Statement, it is stated assuming that the plaintiff’s vendor is the daughter of Thanappa Gounder, if at all she was entitled to only ¼ share, which alone could be claimed by the plaintiff, as the purchaser and that the suit is bad for partial partition. 5. 4. In the Additional Written Statement, it is stated assuming that the plaintiff’s vendor is the daughter of Thanappa Gounder, if at all she was entitled to only ¼ share, which alone could be claimed by the plaintiff, as the purchaser and that the suit is bad for partial partition. 5. In the reply statement, the plaintiff has stated that at the time of the sale in favour of the plaintiff by Annammal, the properties available are only the suit properties, that the plaintiff is not claiming any share in other properties and therefore, the suit is not bad for partial partition and that the defendant has not prescribed title to the suit property by adverse possession. 6. Based upon the above pleadings, the parties went on trial before the trial Court, where on behalf of the plaintiff, two witnesses have been examined as P.Ws.1 & 2 seeking aid from Exs.A1 to A5, which are sought to be eclipsed by the examination of six witnesses on behalf of the defendant in addition to producing Exs.B1 to B13. 7. The learned trial Judge mainly relying upon Ex.A3 as well as holding, that the defendant had not discharged the burden of proof viz., failed to prove that the plaintiff’s vendor is not the daughter of Thanappa Gounder, concluded that plaintiff’s vendor is the legitimate daughter of Thanappa Gounder, entitled to inherit his properties, that though there were some ancestral properties as per the evidence, the defendant failed to prove that Thanappa Gounder should have purchased the other items from the income derived by him from the joint family properties and in this view, treating the suit properties as self acquired properties, held that the share sold by the plaintiff’s vendor must be one half, that the suit is not bad for partial partition and that the defendant has not prescribed title to the suit properties by adverse possession. In this view, declaring the plaintiff’s ½ share, a preliminary decree was granted on 18.1.1990, which was challenged before the District Court, Villupuram in A.S.No.105/94. 8. The learned District Judge, by going through the judgment of the trial Court, as well as reassessing the evidence, probably felt that the plaintiff,s case must be true which was accepted by the trial Court. 8. The learned District Judge, by going through the judgment of the trial Court, as well as reassessing the evidence, probably felt that the plaintiff,s case must be true which was accepted by the trial Court. In this view more or less, retyping the judgment of the trial Court, in the modified form, the appeal was dismissed, confirming the decree and judgment of the trial Court, which is impugned in this second appeal. 9. This Court, while admitting the second appeal, has formulated the following substantial questions of law for determination: 1. Whether the courts below were right in computing the period of limitation from the date of sale under Ex.B7 when possession had been delivered already under Ex.B5, the sale agreement and the time starts running from the date of taking possession by the defendant? 2. Whether the courts below were right in relying upon a birth extract under Ex.A-3 to prove the paternity when the informant had not been examined and neither the person connected with the document were examined to prove the correctness of the recitals? 10. Heard the learned counsel for the appellant, Ms. Chitra Sampath and the learned counsel for the respondent, Mr.J.R.K. Bhavanantham. 11. The plaintiff and the defendant are the purchasers of the suit properties, from the alleged heirs of Thanappa Gounder, who owned the properties admittedly, whether as joint family properties, or his self acquired properties, which I will discuss infra, if necessary. It is the case of the plaintiff that her vendor Annammal is the daughter of Thanappa Gounder and her brother is one Venkatachalam. Therefore according to the plaintiff, since Thanappa Gounder died intestate, his daughter is equally entitled to inherit the properties along with her brother Venkatachalam. Thus claiming, Annammal had sold half share to the plaintiff on which basis, the suit is filed. In the written statement, the status of Annammal i.e. the vendor of the plaintiff is questioned. Nowhere it is conceded that the plaintiff’s vendor is the daughter of Thanappa Gounder, whether it is through Kuppammal or through Panjali. The plaint is elegantly silent, who is the mother of the plaintiff’s vendor, Annammal. In the written statement, it is specifically pleaded that the plaintiff’s vendor Annammal was born to Panjali, through her first husband Kuppa Gounder and only thereafter alone Panjali lived with Thanappa Gounder, deserting her first husband. The plaint is elegantly silent, who is the mother of the plaintiff’s vendor, Annammal. In the written statement, it is specifically pleaded that the plaintiff’s vendor Annammal was born to Panjali, through her first husband Kuppa Gounder and only thereafter alone Panjali lived with Thanappa Gounder, deserting her first husband. After the filing of the written statement, the plaintiff has chosen to file a reply statement. In the reply statement, the status of the plaintiff’s vendor questioned as if she is not the daughter of Thanappa Gounder is not challenged. At the time of filing of the plaint, there might not have been any necessity for the plaintiff to plead in detail, who is the mother of her vendor, where she born, what is the date of birth of the vendor, etc. When the plaintiff’s vendor's status as the daughter of Thanappa Gounder was challenged in the written statement, that too when the plaintiff had chosen to file reply statement, the plaintiff ought to have pleaded in detail about the paternity and maternity of her vendor and on that basis, she should have let in evidence then only that evidence would be admissible to fix the status, not otherwise. 12. It is the well settled principle that no amount of evidence let in could be taken into consideration if there are no pleadings. In this view of the matter, I am of the opinion, that the evidence let in by the plaintiff to prove that her vendor is the daughter of Thanappa Gounder, by producing Ex.A3, need not be considered, that too in view of the further fact, the same was obtained during the pendency of the suit, then produced, which has no sanction of pleadings to test its veracity. 13. On the basis of the absence of the pleadings, as indicated above, the learned counsel for the appellant would submit that except Ex.A3, no other document has been produced to prove the paternity as well as the maternity of the plaintiff’s vendor, Annammal and therefore, it is not possible to say that the plaintiff’s vendor is the daughter of Thanappa Gounder, entitled to inherit the properties. It is the further submission of the learned counsel for the appellant that unfortunately, both the courts below have not properly considered the burden of proof as well as the validity of Ex.A3 and in fact, they misdirected themselves, leading to an erroneous conclusion, which requires eraser completely. Lastly it was urged that the adverse possession claimed by the appellant/defendant was not properly considered by the courts below though his actual possession of the suit properties was proved by Ex.B5. 14. Responding to the above submissions, the learned counsel for the respondent/plaintiff would submit that Ex.A3 is the birth certificate of Annammal, the plaintiff’s vendor, obtained from the office of the Sub Registrar, Gingee and therefore, it should have the initial presumption about its genuineness, validity unless the same is contradicted or proved otherwise, which is not available in this case and in this view, accepting Ex.A3, the conclusion reached by the courts below that the plaintiff’s vendor is the daughter of Thanappa Gounder is perfectly valid, legally sound, not required to be interfered with. The adverse possession claimed is opposed by the learned counsel for the respondent/plaintiff that in view of the findings based upon Ex.A3, the plaintiff's vendor becomes co owner and when an adverse possession is to be claimed against co-owner, there should be plea of ouster to the knowledge of the other co-owner, which is not available here even as per the pleadings and therefore, dislodging the plaintiff from claiming share, on the ground of adverse possession is untenable. 15. By going through the pleadings, after hearing the submissions of either counsel and giving my thoughtful consideration, applying the principles of law also, considering the burden of proof, I am of the considered opinion, that the submissions made by the learned counsel for the appellant deserve acceptance, regarding the status of Annammal though the findings were rendered by the Courts below concurrently, not appreciating the evidence properly, how it should be appreciated, whereas the conclusion had been reached, ignoring the basic principles of burden of proof. The Courts below have commented the non examination of the close relatives of the plaintiff's vendor to disprove the case of the plaintiff as if holding that the plaintiff has made out a case, which appears to be incorrect and my reasons are hereunder. 16. Thanappa Gounder possessed the suit properties is admitted. The Courts below have commented the non examination of the close relatives of the plaintiff's vendor to disprove the case of the plaintiff as if holding that the plaintiff has made out a case, which appears to be incorrect and my reasons are hereunder. 16. Thanappa Gounder possessed the suit properties is admitted. The plaintiff's case is that they are the self acquired properties of Thanappa Gounder, whereas the defendant's case is that they are the joint family properties. The Courts below have held that there are evidence to prove that the family owned joint family properties. It is also seen from the evidence that Thannappa Gounder has no other source of income to acquire the properties in his name. When the existence of joint family nucleus is proved, when there is a possibility to infer that the joint family nuleus might have had the capacity to generate income for its later acquisition, generally it should be held, that the subsequent acquisition also must be for the benefit of the joint family. In this view, considering the admitted joint family properties, to some extent and no evidence is available that Thanappa Gounder had any other independent income, it should be held that the suit properties were owned and possessed by the Thanappa Gounder only as joint family properties along with joint family members viz, the son Venkatachalam, whose paternity is also to some extent questioned. To prove that Thanappa Gounder has owned this property exclusively and he should have purchased the same with his independent income, no evidence has been let in. In this view of the matter, it should be held that the suit properties are the joint family properties of Thanappa Gounder and his son Venkatachalam, in which if at all, the plaintiff is entitled to ¼ share, if it is further shown the plaintiff's vendor is the daughter of Thanappa Gounder. However, both the courts below have held that the suit properties are the self acquired properties of Thanappa Gounder, in which her daughter Annammal was entitled to half share, which was purchased by the plaintiff and in this view, the plaintiff is entitled to half share. However, both the courts below have held that the suit properties are the self acquired properties of Thanappa Gounder, in which her daughter Annammal was entitled to half share, which was purchased by the plaintiff and in this view, the plaintiff is entitled to half share. The finding so rendered by the courts below quantifying the share of the plaintiff or her vendor is not challenged and no substantial question of law also framed regarding the character of the property and therefore, that finding need not be disturbed, despite my general observation. 17. Section 35 of the Indian Evidence Act deals with the relevancy of entry in the public record made or entered in performance of duty which reads: "An entry in any public or other official book, register, or record, or an electronic record stating a fact in issue or relevant fact, and made by a public servant in discharge of his official duty, or by any other person in performance of a duty specially enjoyed by the law of country in which such book, register or record or an electronic record is kept, is itself a relevant fact". Under chapter VII of the Indian Evidence Act, the burden of proof is generally on the person "Whoever desires any Court to give Judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. 18. In this case, the plaintiff wants a Decree for partition based upon the allegation that her vendor is the legitimate daughter of Thanappa Gounder. Therefore, she should have pleaded so, furnishing father's name, mother's name, date of birth, place of birth, etc. Then only if subsequently birth register extract is produced that could be corelated with the existing particulars available in the plaint, to affix the seal of approval, not otherwise. I have already pointed out the absence of pleadings, in this case. Annammal, the alleged vendor, who claimed to be the daughter of Thannappa Gounder, was alive on the date of the trial of the suit, as seen from the records. But unfortunately she has not been examined in this case, to prove that she is the legitimate daughter of Thanappa Gounder, through Kuppammal or Panjali, as the case may be. Annammal, the alleged vendor, who claimed to be the daughter of Thannappa Gounder, was alive on the date of the trial of the suit, as seen from the records. But unfortunately she has not been examined in this case, to prove that she is the legitimate daughter of Thanappa Gounder, through Kuppammal or Panjali, as the case may be. Neither in the plaint nor in the reply statement, the name of the mother of the plaintiff's vendor is given as Kuppammal, that too when it was denied specifically alleging in the written statement that she is the daughter of one Kuppa Gounder through Panjali. Unfortunatley, forgetting the burden of proof, the trial Court has commented upon the defendant as if he failed to examine Kalyani Ammal, the sister of Annammal, which is so pleaded in the written statement. When the initial burden is proved, then only the question of rebuttal would come. In this case, the plaintiff has not even taken any steps to summon Annammal by summoning her through Court whether she would give evidence or not in respect of her case. On the averments projected by the parties, as if Annammal joined hands with the defendant's vendor, her brother, her non examination is justified, throwing the burden upon the defendant, which is not warranted under law. Therefore, the conclusion reached by the Courts below as if the defendant has not proved that the plaintiff's vendor is not the daughter of Thanappa Gounder, is erroneous, liable to be extinguished. 18. The suit was filed elsewhere in the year 1984. Ex.A3, the alleged birth register of plaintiff's vendor was obtained on 6.3.1989 i.e. after five years from the date of filing of the suit. Ex.A3 would read that the particulars available in the document has been taken from the original record of birth, which is in the register of birth, Singavaram, Gingee Taluk. In that the father's name of a female child is given as Thanappa Gounder; Date of birth is given as 6.3.1918 and place of brith is given as Singavaram, giving the name of the mother as Kuppammal, describing their permanent address at Pemanathur. Ex.A1 is of the year 1931, wherein Thanappa Gounder's village is described as Vemmanathur. In that the father's name of a female child is given as Thanappa Gounder; Date of birth is given as 6.3.1918 and place of brith is given as Singavaram, giving the name of the mother as Kuppammal, describing their permanent address at Pemanathur. Ex.A1 is of the year 1931, wherein Thanappa Gounder's village is described as Vemmanathur. In Ex.A2, a document of the year 1944, the village of Venkatachala Gounder i.e. the father of Thanappa Gounder is given as Singavaram, whereas the village name of Thanappa Gounder is given as Venmaniathur. Nowhere in the documents, Thanappa Gounder's address is given as Pemanathur. Since we do not have the pleadings, where Thanappa Gounder and Kuppammal lived together, where they gave birth to a female child, which is sought to be described as Annammal, we are unable to correlate the particulars available in Ex.A3 to find out its genuineness. On the other hand, as indicated above in column-4, place of birth is given as Singavaram and the village name is given as Pemanathur. When these discrepancies are available, giving certificate to Ex.A3 as genuine one, presumption cannot be drawn as if it should represent the birth of plaintiff's vendor, Annammal. 19. It is the case of the plaintiff, the defendant's vendor, Venkatachalam also is the son of Kuppammal. If his birth register is produced, both reflects the same particulars, then taking the same as relevant factor, there may be a possibility to say Ex.A3 should represent the birth of plaintiff's vendor, Annammal, in the absence of name in the birth certificate. Since no pleadings is available, and discrepancies are patent not explained by the witnesses; as contemplated under Section 35 or as contemplated under Section 114 of the Indian Evidence Act, no presumption could be drawn as if it is genuine represents the birth of the plaintiff's vendor. 20. As seen from para-9 of the Judgment, the trial Court has given a peculiar explanation in the absence of pleadings and evidence, which was confirmed by the first appellate Court also strangely. The learned trial Judge has observed that Venmaniathur is described as Vemanathur and in the same manner, the same village should have been written in Ex.A3 as Pemanathur. If there is evidence, that evidence is supported by pleadings then the above explanation, could be accepted. The learned trial Judge has observed that Venmaniathur is described as Vemanathur and in the same manner, the same village should have been written in Ex.A3 as Pemanathur. If there is evidence, that evidence is supported by pleadings then the above explanation, could be accepted. When the parties themselves have not explained preceded by pleadings, it is unfortunate on the part of the trial Court to take such an extreme view, which is not warranted, since no evidence is available. For the non examination of the plaintiff's vendor, whose status is questioned, naturally under law, an adverse inference has to be drawn against the plaintiff, whereas an adverse inference has been drawn by the Courts below against the defendant, which is not warranted. 21. The learned counsel for the appellant inviting my attention to a decision of this Court in Rajambal v. Veeramuthu Udayar (1999 (8) L.W. 175) would contend, that mere production of the document alone is not sufficient to hold that name of the child recorded in the birth register extract is admissible under Section 35 of the Evidence Act, when there is no independent evidence connecting the entries etc. The Division Bench of this Court, while considering Section 35 of the Evidence Act, as well as the entry in the brith register extract, had concluded, surveying the law on that field, the entries in the brith register extract by themselves do not prove the paternity, which dictum is squarely applicable to the present case. In the above ruling it is observed as follows: "Under S.35 of the Evidence Act (I of 1872), it is only the entry made by a public servant in the discharge of his official duties that is admissible as a relevant fact. Other particulars not strictly covered by the entries are not admissible under S.35 of the Evidence Act. The name of the child recorded in the birth registration extract was inadmissible under S.35 of the Evidence Act. The entries do not require the officer to record the name of the child. If there is other independent evidence connecting the entries, the entries and the independent evidence may supplement one another. If somebody who gave the information had given evidence about his knowledge of the relationship, the entry would be corroborative evidence of the evidence of that witness under S.157 of the Evidence Act, but not the entries themselves." 22. If there is other independent evidence connecting the entries, the entries and the independent evidence may supplement one another. If somebody who gave the information had given evidence about his knowledge of the relationship, the entry would be corroborative evidence of the evidence of that witness under S.157 of the Evidence Act, but not the entries themselves." 22. The plaintiff's vendor appears to have married somebody. It is said that she was born elsewhere in the year 1918. There might have been a chance for the plaintiff's vendor to describe herself as the daughter of Thanappa Gounder or the third parties should have considered or recognised her as the daughter of Thanappa Gounder through Kuppammal. To prove the above aspect, no evidence has been let in either orally or documentary, as the case may be. This being the position, purely placing reliance upon Ex.A3 alone, it is highly impossible to conclude that the plaintiff's vendor is the legitimate daughter of Thanappa Gounder, through his wife Kuppammal, that too when it is said Kuppammal had no issue. For the reasons asigned above, I answer the substantial question of law No.2 against the respondent/plaintiff. 23. In view of my findings supra, question of adverse possession need not be considered elaborately and to have fullness, in view of the fact substantial question of law has been framed, this also has to be answered. 24. The defendant, who claims title to the suit properties through Venkatachalam appears to have entered into a sale agreement with him under Ex.B.5 on 20.1.1972. This document recites as if possession was also handed over on the same day. Pursuant to Ex.B5, sale deed has been executed in favour of the defendant under Ex.B7 on 2.2.1972. It is the specific case of the defendant that since he is in possession and enjoyment of the property adverse to on and from 20.1.1972, for well over 12 years, he had prescribed title to the suit property by adverse possession, since the suit was filed only on 31.1.1984. Assuming that possession was given to the defendnat pursuant to the agreement, that possession cannot be adverse possession, since he was enjoying the property recognising the original owner and if at all he became the owner of the property only pursuant to the sale deed dated 2.2.1972. Assuming that possession was given to the defendnat pursuant to the agreement, that possession cannot be adverse possession, since he was enjoying the property recognising the original owner and if at all he became the owner of the property only pursuant to the sale deed dated 2.2.1972. Therefore, the submission of the learned counsel for the appellant, the possession of the suit property by the defendant from Ex.B5 should be construed as adverse possession, is not acceptable to me. Further, if the plaintiff is to be construed as the person who had purchased the property from the daugther of Thanappa Gounder, she comes within the meaning of co-owner. In order to claim adverse possession against the co-owner, since Venkatachalam is entitled to only a share, there must be plea of ouster that too to the knowledge of the other sharers, which are absent in this case. In this view, taking the period of limitation from Ex.B5, it is not possible to conclude that the defendant has prescribed title to the suit properties by adverse possession. Be that as it may. Because of the fact, the plaintiff has not proved that her vendor is the legitimate daughter of Thanappa Gounder, the suit for partition is not maintainable. 25. In my considered opinion, both the courts below have not properly appreciated the facts in issue, applying the correct principle of law viz., burden of proof, which resulted leading to an erroneous Judgments even coming within the meaning of perversity deserve to be disturbed. In the result, the appeal is allowed, setting aside the Decrees and Judgments of the courts below, dismissing the suit O.S.No.152 of 1984, directing the parties to bear their respective costs, through out considering the peculiar circumstances of the case.