Judgment :- 1. This Second appeal is focussed by the plaintiff animadverting upon the judgment and decree dated 09.03.2011 passed in A.S.No.18 of 2010 by the Sub Court, Vaniyambadi, Vellore District, confirming the judgment and decree of the Additional District Munsif, Court, Vaniyambadi in O.S.No.110 of 2005. 2. The parties are referred to hereunder according to their litigative status and ranking before the trial Court. 3. Niggard and bereft of details, the germane facts absolutely necessary for the disposal of this Second Appeal would run thus: The gist and kernel of the case of the plaint as stood exposited from the plaint would run thus: There existed certain items of properties which originally belonged to the father of the plaintiff and D1. A partition almost 40 years anterior to the filing of the suit emerged and in that, the plaintiff and D1 were allotted different items. A common well which existed in the joint property was agreed to be utilised by both the sharers. However, holus bolus during the year 2005, D1 and his son D2 started obstructing the use of water from the common well by the plaintiff, which resulted in the filing of the suit. 4. Per contra, the defendants filed the written statement refuting and challenging, impugning and contradicting the averments/allegations in the plaint and the warp and woof of it would run thus: Only after such oral partition, the well was dug by D1 independently and he got electricity service connection also in his name. While so, the plaintiff without having any right over the well started laying claim over it. Accordingly they prayed for the dismissal of the suit. 5. Whereupon the trial Court framed the relevant issues. 6. Up went the trial, during which the plaintiff-Chinnaperumal examined himself as P.W.1 along with P.Ws.2 and 3 and Exs.A1 to A3 were marked; and the second defendant/Raja examined himself as D.W.1 along with D.Ws.2 to 4 and Exs.B1 to B30 were marked. Exs.X1 and X2 were marked as Court documents. 7. Ultimately the trial Court decreed the suit in respect of items 1 and 2 which admittedly were allotted in favour of the plaintiff during the said oral partition. Exs.X1 and X2 were marked as Court documents. 7. Ultimately the trial Court decreed the suit in respect of items 1 and 2 which admittedly were allotted in favour of the plaintiff during the said oral partition. However, the claim of the plaintiff over the half share in the well was negatived and as against which the plaintiff preferred the appeal for nothing but to be dismissed by the appellate Court confirming the judgment and decree of the trial Court. 8. Challenging and impugning the judgments and decrees of both the Courts below in negativing the claim of the plaintiff over his half share in the suit well, i.e. the third item of the suit property, this second appeal has been focused on various grounds and also suggesting the following substantial questions of law: "(a) Whether a registered, indisputably admitted document required strict proof by examination of scribe and witness for relying its contents in the court of law? (b) Whether the recitals of the registered document shall not bind the parties to the document in entirety, even after admission of its execution and implementation? (c) Is it not wrong to conclude that the burden to disprove the suggestions made by the defendant during the cross examination of plaintiff is heavily upon the plaintiff? (d) Whether both the courts below had considered the oral and documentary evidences, which has to be looked into, to unearth the real question of controversy involved in this suit with the available evidence? (e) whether an officer of electricity department is competent to speak about the oral partition which was alleged to be happened 40 years ago, that too without embarking upon the revenue records? (f) Is it right to consider blindly on the evidence of D.W.4 which ought not to have considered for his incompetence to speak about the factum of partition held 40 years back? (g) Could it be acceptable to rely the same document to take the advantage of one part and to neglect the other part which is detrimental or adverse to his own interest?" (extracted as such) 9. Heard both. 10. (g) Could it be acceptable to rely the same document to take the advantage of one part and to neglect the other part which is detrimental or adverse to his own interest?" (extracted as such) 9. Heard both. 10. After hearing both, I thought of disposing of the matter at this stage by formulating the following substantial questions of law: (1) Whether both the Courts below were justified in giving a finding that Ex.A2 the patta, contained some dubious insertions in different ink which remained unexplained, and that the public official was not summoned to clarify the same? (2) Whether the Courts below were justified in disposing of the matter by holding that the mortgage deeds Exs.A1 and A3 were not proved in accordance with law when those documents are certified copies of registered documents and virtually admitted by both sides? (3) Whether there is any perversity or illegality in the judgments and decree of both the Courts below? 11. All these points are taken together for discussion as they are inter linked and inter woven with one another. 12. The learned counsel for the plaintiff would pyramid his arguments, which could succinctly and precisely be set out thus: (a) Indubitably and indisputably, there emerged an oral partition between the plaintiff, and D1 and in that the items 1 and 2 were allotted to the share of the plaintiff; whereas, some other items were allotted to the share of D1. However, the Courts below while upholding such oral partition, failed to give a verdict in favour of the plaintiff regarding his claim for half share in the suit well. (b) This suit well cannot be an independent property of D1 because Exs.A1 and A3 which emerged on one and the same day at the instance of the plaintiff and D1 respectively in favour of one and the same mortgagee, namely Kanchana Devi, would recite to the effect that the plaintiff and D1 had equal shares in the said well as well as in the electrical installation and motor pump set. Ignoring and belittling those versions, the Courts below decided the lis, warranting interference in the Second Appeal. (c) Ex.A2 was looked askance at by both the Courts below, ignoring the presumption attached to certified copies of public documents. Ignoring and belittling those versions, the Courts below decided the lis, warranting interference in the Second Appeal. (c) Ex.A2 was looked askance at by both the Courts below, ignoring the presumption attached to certified copies of public documents. (d) The oral evidence adduced on the side of the defendants was dubious and nebulous, nevertheless, it found favour with the Courts below, warranting interference by this Court. 13. In a bid to slap down and torpedo the arguments and pleas as put forth on the side of the plaintiff, the learned counsel for the defendants would advance his arguments, which could tersely and briefly be set out thus: (a) The burden of proof is on the plaintiff, but the plaintiff even after admitting that there was difference in ink in Ex.A2 concerning the specification of the well, kept quiet and it was commented by both the Courts below correctly. (b) Ad infinitum and ad nauseam the plaintiff cannot claim opportunity to fill up the lacuna. (c) The Courts below also correctly held that the certified copies of the mortgage deeds as contained in Exs.A1 and A3 were not proved in the way known to law. (d) Absolutely there is no explanation on the side of the plaintiff as to why the plaintiff simply allowed the electricity connection standing in the name of D1 ever since four decades anterior to the filing of the suit. (e) In fact, the plaintiff sold out of his share of 3.22 acres, an extent of 1.40 acre to two different persons and there is nothing to indicate and exemplify, demonstrate and display that those purchasers were allowed to share the water from the alleged common well. After the oral partition, D1 contributed his own energy and money and dug the well in his share, over which the plaintiff cannot claim any right. As such, the Courts below adhering to the law correctly decided the lis. (f) There is no question of law, much less any substantial question of law is involved in this matter. Accordingly submitting as above, the learned counsel for the defendants would pray for the dismissal of the Second Appeal. 14. Indubitably and indisputably, unarguably and incontrovertibly there emerged an oral partition between the plaintiff and D1. There is no specificity in specifying the date of oral partition. Accordingly submitting as above, the learned counsel for the defendants would pray for the dismissal of the Second Appeal. 14. Indubitably and indisputably, unarguably and incontrovertibly there emerged an oral partition between the plaintiff and D1. There is no specificity in specifying the date of oral partition. D1 as D.W.1 would only state that some 40 years anterior to the filing of the suit the oral partition emerged. The learned counsel for the plaintiff would try to hinge upon the said fact and try to fix the year of oral partition as 1965. 15. At this juncture it would not be out of context to refer to the deposition of the Assistant Engineer - D.W.4, who would candidly and categorically, pulling no punches, placing reliance on the records available with him, detail and delineate that during January 1965 such application was given by D1 for getting electricity supply for the bore well motor and pump set. Hence, safely it could be inferred that during the year 1965 the electricity connection was obtained in respect of the suit well in the name of D1 and around that period the well came into existence. 16. When this Court posed a question to the learned counsel for the plaintiff as in what manner the expenditure for maintaining the well, paying electricity charges, repairing the motor pump sets desilting the well etc., were met, the learned counsel for the plaintiff without any back up of the pleadings and evidence on record, could only state that D1 being the elder brother, on behalf of the plaintiff who happened to be the younger brother, met the expenditures and that only at the instigation of D2, during the year 2005, D1 started giving trouble to the common enjoyment of the well by the plaintiff. 17. Whereas, the learned counsel for the defendants would try to label and describe such an explanation as too big a pill to swallow and as per him, it is nothing but a load of baloney fraught with falsity and mendacity. According to the learned counsel for the defendants, absolutely there was no question of jointness involved in the well and no elder brother having head over shoulder would for about 32 years share the electricity charges of his brother and also share the expenses for maintaining the well including desilting of the well etc. According to the learned counsel for the defendants, absolutely there was no question of jointness involved in the well and no elder brother having head over shoulder would for about 32 years share the electricity charges of his brother and also share the expenses for maintaining the well including desilting of the well etc. As such, those arguments on both sides are all relating to preponderance of probabilities. On both sides absolutely there is no iota or shred, shard or miniscule extent of pleadings or evidence in that regard. In fact I would like to describe it as a vacuum in the evidence adduced by both sides. 18. At this juncture I would like to recollect the following maxims: (1) Affirmantis est probare : The person who affirms must prove (2) Affirmanti, non neganti, incumbit probatio : The proof is incumbent on the one who affirms, not on the one who denies; and also one other important maxim: Favorabiliores rei potius quam actores habentur -Defendants are held to be in a more favourable position than pursuers. 19. As such the cumulative effect of all the three maxims would connote and denote that the initial burden is always on the plaintiff and as it is well known that burden of proof is ambulatory, on the plaintiff discharging his burden, the onus would get shifted to the defendant's side. 20. In this case, as correctly pointed out by both the Courts below, despite the plaintiff admitting that there was difference in ink in specifying about the well in Ex.A2, no steps were taken by the plaintiff to get summoned the official concerned and also the record to dispel such ambiguity as well as doubt. 21. At this juncture, I would like to recollect one other legal adage "Every trial is a voyage of discovery in which truth is the quest" as laid down by the Hon'ble Apex Court in the following decision: (2012) 5 MLJ 618 (SC) [A.Shanmugam vs. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam rep.by its President etc.] 22. The courts were not helpless. Even though the Courts below were specific in finding fault with the plaintiff for not having got summoned the public official, to clarify the difference in the ink in the certified copy of the patta Ex.A2 issued by the revenue department, the Courts did nothing more. 23. The courts were not helpless. Even though the Courts below were specific in finding fault with the plaintiff for not having got summoned the public official, to clarify the difference in the ink in the certified copy of the patta Ex.A2 issued by the revenue department, the Courts did nothing more. 23. In my considered opinion, the trial Court itself or the appellate Court could have directed the parties to do the needful or the Courts themselves could have suo motu summoned the official to produce the original register pertaining to Ex.A2 in the interest of justice, but that was not done so. 24. The Courts below also were not satisfied, it appears with the certified copy of the mortgage deeds produced. In my considered opinion, the certified copy of the mortgage deeds need not be doubted unless there is anything to suspect in such certified copies. Section 63 of the Indian Evidence Act would highlight that certified copies of deeds could be entertained, but the only condition is that there should be adequate explanation relating to the non production of the original.Inasmuch as the mortgage deeds Exs.A1 and A3 emerged during the year 1973, so to say 32 years ago, the plaintiff might not have been in a position to produce the originals. It is quite obvious and axiomatic that Ex.A3 was executed by D1 in favour of the mortgagee and wherefore the original deed could not have been with the plaintiff. In such an obvious and axiomatic situation, the Court could have relied upon the certified copy - Ex.A3. 25. Once a certified copy of a registered document is admissible in evidence, as Ex.A3 in this case, then Sections 91 and 92 of the Indian Evidence Act would come into play. Here D1 would specifically come forward with a plea that he was illiterate and not so conversant with the recitals in the mortgage deed -Ex.A3 and that he should not be mulcted with liability of the following clause therein: VERNACULAR (TAMIL) PORTION DELETED 26. Both the Courts below failed to take note of the law point relating to burden of proof. D1 himself admits that there emerged a mortgage deed at his instance, and if he wants to disown or if he wants the Court to read the recitals differently then, the burden is on D1 to prove his plea. Both the Courts below failed to take note of the law point relating to burden of proof. D1 himself admits that there emerged a mortgage deed at his instance, and if he wants to disown or if he wants the Court to read the recitals differently then, the burden is on D1 to prove his plea. But this aspect has not been taken note of by the Courts below. 27. The perusal of Exs.A1 and A3 would demonstrate and exemplify that both the mortgage deeds would contain similar clauses as follows: VERNACULAR (TAMIL) PORTION DELETED 28. The learned counsel for the plaintiff would place heavy reliance on those recitals which are similar in nature and build up his argument that it is a supine categorical admission on the part of D1 that the suit well happened to be a joint one. 29. No doubt, Ubi jus ibi remedium -Where there is a right there is a remedy and in the meantime as has been pointed out by me above, there is a vacuum in the evidence adduced by the plaintiff. 30. The learned counsel for the plaintiff would try to explain and expound the vacuum in evidence by pointing out that D1 happened to be the elder brother and because of that the plaintiff was not contributing any money towards the expenses as well as the payment of electricity charges. I would like to point out that both the Courts below have not dealt with the matter in extenso in commensurate with the preponderance of probabilities and also applying strictly the law. No doubt on the plaintiffs side had he taken steps he could have adduced best evidence which is contemplated under law, but no attempt was taken by the plaintiff to establish before the Court as to when the well was dug and how it was maintained. Even though he would submit that the father of the plaintiff and D1 during his life time itself dug the well and made it available for being used by the co-sharers for their own use after oral partition, yet there is no evidence adduced on either side, except placing reliance on Exs.A1 and A3. 31. Patta will not confer title. In the mean time there is one other unexplained and inscrutable factor which has to be taken note of by this Court. 31. Patta will not confer title. In the mean time there is one other unexplained and inscrutable factor which has to be taken note of by this Court. As per Ex.A2 - the patta which was looked askance at by the Courts below, would refer to a survey sub division No.471/6 and in that connection a paramount and significant doubt arises as to why for that well alone a separate sub division number should be given, only revenue authorities would be able to explain. No doubt the plaintiff would be attempting to capitalize it and develop his arguments that such sub division number was given because it happened to be a joint well. 32. There is no denying of the common or garden principle that if really the well happened to be part and parcel of the property of D1, then there would have been no necessity for the revenue official to give a separate sub division number to it. 33. In view of my discussion supra there are certain unexplained and cloudy situations in the evidence and both the Courts below have not taken note of all these defects. Hence in these circumstances in the interest of justice, the judgment and the decree of the first appellate Court is set aside and the matter is remitted back to the first appellate Court for allowing both sides to adduce additional oral and documentary evidence. A fortiori the revenue official concerned has to be summoned by the first appellate Court to explain the aforesaid factual situation as per revenue records and whereupon after hearing both sides, a reasoned judgment shall be rendered by the first appellate Court, which shall take all endeavours to see that the matter is disposed of within a period of three months from the date of receipt of a copy of this order. Accordingly, this Second Appeal is disposed of. No costs. Both the parties shall appeal before the first appellate Court on 11.03.2013.