JUDGMENT Hon’ble Kalimullah Khan, J.—Original Suit No. 234 of 1999 was instituted by plaintiff appellant Zafaruddin @ Zafar Qureshi son of Shamshuddin resident of 22, Shekh Bada, Prem Nagar, Jhansi for a permanent prohibitory injunction against Sushil Singh defendant respondent restraining him to take forcible possession by digging foundation and raising construction over the sehan land which is appurtenant to the House Nos. 21, 22 and 24 belonging to his father Shamshuddin and uncle Badruddin both sons of Shekh Babu the grand father of the plaintiff. 2. The case of plaintiff is that Houses No. 21, 22 and 24 were the property of Shekh Babu who had left behind him his two sons Badruddin and Shamshuddin. Badruddin has two issues including his son Mukhtar and one daughter Smt. Aqeela. Shamsuddin has three sons including plaintiff. The land in dispute is a sehan land of aforesaid houses through which the inhabitants of the houses have their ingress and egress and are using it as their sehan land. The aforesaid appurtenant land is in use and occupation of Shamshuddin and uncle Badruddin with whom their issues are living and enjoying. Defendant appellant Sushil Singh claims himself to be the vendee of the disputed land on the basis of the registered sale-deed executed in his favour by one Smt. Aqeela daughter of aforesaid Badruddin who had already transferred the said land in favour of Smt. Aqeela vide registered sale-deed dated 31.1.1992. 3. The defendant respondent contested the suit with the pleading that House Nos. 21,22 and 24 and the land in dispute are not the ancestral property of the plaintiff rather these properties were self acquired property of Badruddin who had transferred the land in dispute in favour of his daughter Smt. Aqeela vide registered sale-deed dated 31.1.1992. Smt. Aqeela subsequently transferred the same in his favour vide registered sale-deed dated 2.2.1999. According to him, Badruddin could transfer the entire land in dispute in favour of his daughter and he actually transferred it in favour of Smt. Aqeela who is his vendor. 4. Learned trial Court framed following issues : (I) Whether the plaintiff is owner in possession of the disputed land ? (II) Whether the suit is barred by Sections 38 and 39 of the Specific Relief Act? (III) Whether the suit is undervalued and the Court fee paid is insufficient? (IV) To what relief the plaintiff is entitled ? 5. 4. Learned trial Court framed following issues : (I) Whether the plaintiff is owner in possession of the disputed land ? (II) Whether the suit is barred by Sections 38 and 39 of the Specific Relief Act? (III) Whether the suit is undervalued and the Court fee paid is insufficient? (IV) To what relief the plaintiff is entitled ? 5. Both the parties adduced their evidence oral and documentary as mentioned in the trial Court’s judgment. 6. Learned trial Court after appraisal of evidence on record answered issue No. 1 against plaintiff. Issue No. 2 was not pressed upon by the defendant hence it was decided accordingly. Issue No. 3 had already been decided during the course of trial which was ordered to be the part of the judgment and issue No. 4 was answered by dismissing the suit of the plaintiff vide judgment and decree dated 6.11.2006. 7. Feeling aggrieved, plaintiff filed Civil Appeal No. 88 of 2006 Zafaruddin @ Zafar Qureshi v. Sushil Singh, under Section 96 of C.P.C. The appellate Court dismissed the appeal vide judgment and order dated 18.9.2007. 8. Hence this second appeal was filed against the concurrent findings recorded by both the Courts below which has been admitted on following substantial questions of law : (1) Whether the concurrent findings recorded by both the Courts below, to the effect that the land in suit was self acquired property of Badruddin and it was not the land appurtenant to the ancestral house Nos. 21, 22 and 24 of the plaintiff and Badruddin from where defendant respondent claims his right, title and interest therein through Smt. Aqeela on the basis of registered sale-deed dated 2.2.1999, is not perverse and tenable in the eye of law ? (2) Whether the defendant respondent is entitled of joint possession of the property in suit upto the extent of share of Badruddin therein without getting property partitioned in view of para 2 of Section 44 of Transfer of Property Act, ? (3) Whether the burden to prove that the property in suit was exclusive/self acquired property of Badruddin was on the defendant or on the plaintiff. 9. Heard the learned counsel for the parties on the aforesaid substantial question of law and perused the records. Substantial question of law No. 1 : 10. (3) Whether the burden to prove that the property in suit was exclusive/self acquired property of Badruddin was on the defendant or on the plaintiff. 9. Heard the learned counsel for the parties on the aforesaid substantial question of law and perused the records. Substantial question of law No. 1 : 10. Learned trial Court dismissed the suit of the plaintiff on the ground that he could not prove by evidence that the land in suit was his ancestral property. From where and how his grand father acquired the land in dispute could not be established by the plaintiff by filing documentary evidence although he has given oral evidence on the point that his father Shamshuddin and Badruddin were joint owner of House Nos. 21,22 and 24 which they had inherited from their father. Undisputedly defendant respondent had contested the suit with specific pleadings that the aforesaid house and the land in suit were self acquired property of Badruddin who had transferred the disputed property i.e. Sehan land of the aforesaid houses in favour of his daughter Smt. Aqeela and from her the defendant respondent got the said property through registered sale-deed. It is settled law that when parties have adduced evidence, burden of proof looses its importance and it is the boundened duty of both the parties to adduce evidence in support of or against the rival contention of the parties to get issues decided in accordance with law. Defendant is under legal obligation to prove that Badruddin was exclusive owner in possession of the aforesaid property, but there is no evidence on record to suggest that defendant had made any effort to establish the exclusive right, title and interest with possession of original vendee Badruddin. The trial Court as well as the appellate Court ignored this aspect of the matter like anything and casting the entire burden of proof on the plaintiff they discarded his case in whose favour there is overwhelming evidence establishing his joint title and possession over the property in suit viz. (i) In the plaint itself he has mentioned that he lives in house No. 22. (ii) In the written statement defendant respondent himself has admitted by pleading that on the date of filing his W.S. Plaintiff alongwith his family member were residing in the aforesaid house Nos. 21, 22 and 24. (i) In the plaint itself he has mentioned that he lives in house No. 22. (ii) In the written statement defendant respondent himself has admitted by pleading that on the date of filing his W.S. Plaintiff alongwith his family member were residing in the aforesaid house Nos. 21, 22 and 24. Plaintiff, according to him, had put the soil on the land and had raised construction thereon. (iii) Plaintiff examined himself and his witnesses to prove the case of the plaint by oral as well as documentary evidence. (iv) Trial Court has himself recorded in his finding of Issue No. 1 that possession of the plaintiff with Badruddin has been proved over the aforesaid house Nos. 21, 22 and 24 since 17.3.1992 as per the documentary evidence but what he says is that the transfer in favour of Smt. Aqeela by Badruddin was made on 31.1.1992 whereas the name of Shamsuddin the father of the plaintiff was recorded in the Municipal record as the co-owner of the aforesaid houses with Badruddin after the aforesaid execution of the sale-deed in favour of Aqeela. Plaintiff did not institute any suit for cancellation of the sale-deed dated 31.1.1992 executed by his uncle Badrddin in favour of Smt. Aqeela, therefore, the trial Court doubted the aforesaid entry in the Municipal record, but the trial Court appears to have over-sighted the fact that if the entry of Samsuddin in the Municipal record was forged, fictitious or uncalled for then Aqeela was the first person to challenge the said entry especially when she continued to be the transferee uptill 1999, the date of execution of the sale-deed by her in favour of defendant respondent Sushil Singh, but she did not challenge the said entry. (v) Non examination of Aqeela by defendant further lends corroborative support to the contention of plaintiff that the entry of the name of his father in the Municipal record as co-owner of Badruddin was inevitable. (vi)True it is that entry in the Municipal record is not proof of the title of the houses but in the absence of any other documentary evidence of exclusive title of Badruddin of the aforesaid houses, the aforesaid uninterrupted entry made in the Municipal record being a strong piece of evidence in the chain of preponderance of evidence cannot be ignored and it must have been given due weight by both the Courts below. Ignoring the said entry like anything has resulted into miscarriage of justice in the facts and circumstances of the present case. (vii) Plaintiff deposed that the aforesaid houses were purchased by Shekh Babu as he was informed by his father and after his death his sons Shamsuddin and Badruddin inherited equal share therein. (viii) He further deposed that the partition suit is already going on in between him and Badruddin regarding house Nos. 21, 22 and 24. (ix) He deposed that boulders and sands of the plaintiff were already lying on the field in suit. The defendant wanted to use the same in the said construction. He went on saying that he was carrying the business of building materials on the aforesaid land in suit for about 9 to 10 years in the name and style of ‘Zafaruddin Star Building materials’. (x) Defendant (D.W. 1) had admitted in his deposition that he had no knowledge as to from whom Badruddin had purchased House Nos. 21, 22, 24 and 32 with its sehan land. He had admitted that he had not seen any documentary evidence showing the ownership of Badruddin in regard to the aforesaid houses with sehan land. (xi) Defendant further clearly, categorically and specifically admitted in his deposition that he returned from Army and saw the successors of Badruddin and Shamsuddin living in the aforesaid houses, but had not seen them using the aforesaid land in dispute which is Agga (appurtenant land) of the aforesaid houses. 11. The trial Court even though referred to the aforesaid evidence of the defendant respondent in the judgment but concluded otherwise by ignoring the aforesaid material evidence which were sufficient to hold that the successors of Shamsuddhin and Badruddin were jointly living throughout in House Nos. 21, 22 and 24 and the disputed land was the appurtenant land of the said house as per the own admission of the defendant in his deposition referred to above. In view of the aforesaid admission of the defendant no further evidence was required to hold that the aforesaid houses were jointly owned and possessed by Shamsuddhin and Badruddin, especially in absence of any other contrary evidence on record to explain the admitted possession of plaintiff the son of Shamsuddin. 12. Literally the word “appurtenant to” means “pertaining to” or “belonging to”. 12. Literally the word “appurtenant to” means “pertaining to” or “belonging to”. The word does not, however, mean adjacent to and from this it could be easily inferred that proximity of the appurtenant land is not essential. What is essential is the concept of belonging for more beneficial enjoyment of parent property. The land in question being just in front of the plaintiff’s house could be land appurtenant to the plaintiff’s house if it was shown that it was being used for the more beneficial enjoyment of the plaintiff’s houses. More or less in a similar matter in the case of Harnam Singh and others v. Bhikhambar Singh and others, AIR 1980 All 50 , this Court while interpreting Section 4 of Easement Act, 1882 expressed the same view and held that the land in question being just in front of the plaintiff’s house though across a narrow lane could still be land appurtenant to the plaintiff’s house if it was shown that it was being used for the more beneficial enjoyment of the plaintiff’s house. Therefore, evidence oral and documentary adduced by the parties firmly establish that the land in dispute was a land appurtenant to the house Nos. 21, 22 and 24 which was jointly possessed by the plaintiff and his uncle Badruddin from where the defendant is claiming his right, title and interest through Smt. Aqeela on account of the aforesaid registered sale-deed and it was not a self acquired property of Badruddin alone. Ignoring the aforesaid material evidence on record the trial Court dismissed the suit. The lower appellate Court which is the final Court of fact mechanically confirmed the finding and upheld the judgment of the trial Court dismissing the suit which needed this Court to interfere with the concurrent finding of both the Courts below on the strength of cogent and convincing reason recorded above. The gist total is that the concurrent findings recorded by both the Courts below that the land in suit is self acquired property of Badruddin being perverse is not tenable in the eyes of law. In case law Dinesh Kumar v. Yusuf Ali, AIR 2010 SC 2679 and Union of India v. Ibrahim Uddin and another, 2012 (2) RJ 1347, Hon’ble the Supreme Court of India has held that perversity raises substantial question of law and on this ground second appeal can be allowed. In case law Dinesh Kumar v. Yusuf Ali, AIR 2010 SC 2679 and Union of India v. Ibrahim Uddin and another, 2012 (2) RJ 1347, Hon’ble the Supreme Court of India has held that perversity raises substantial question of law and on this ground second appeal can be allowed. Therefore, this substantial question of law is answered accordingly. Substantial question of law No. 3. 13. Section 101 of Indian Evidence Act, 1872 reads as under : “S. 101. 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. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.” Section 102 of the aforesaid Act reads as under : “The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. “ 14. In Raghavamma v. Chenchamma, AIR 1964 SC 136 , In SENGUPTA on Evidence, Page : 715, it is observed: “Onus of proof in its primary sense means the duty of establishing a case. This remains throughout the entire case exactly where the pleadings originally placed it. It never shifts. It is a question of law. In its secondary sense onus means no more than the duty of adducing evidence and in this sense, the burden may shift constantly throughout the trial. This involves no question of law but one of fact only. 15. In the case of Koppula Koteshwara Rao v. Koppula Hemantha Rao, 2002 ALHIC 4950, 4953 (PARA 10) (AP) it was held that “........... but while appreciating the question of burden of proof, misplacing of burden of proof on a particular party and recording findings in a particular way will definitely vitiate the judgment.” 16. In P.R. Jogi Reddy v. Chinnabhai Reddi, AIR 1929 PC 13; it was held by the Privy Council that where the burden of proof was wrongly placed on a party by the Court, a serious prejudice would be caused to the party concerned and it is open to the superior Court to decide the case by placing the correct burden of proof on the proper party. In V. Ramachandra Ayyar v. Ramalingam Chettiyar, AIR 1963 SC 302 , it was held by the Supreme Court that an error in placing the onus of proof is a serious defect of procedure of sufficient gravity to justify interference by the appellate Court if it is found that the finding of fact was the result of such a wrong approach. 17. In the case of Rama Chandra Panda v. K. Dandapani Dorr, ILR (1966) it was held that in a suit for restraining defendants from entering upon disputed land and interfering with cultivation of plaintiffs, the onus of proving acquisition of permanent occupancy interest was on defendants who claimed that they had acquired occupancy rights over suit land under Madras Act. 18. In the appeal in hand defendant would loose if he does not prove that the property in suit was self acquired property of Badruddin therefore the burden of proof lies on him especially when the initial burden of proving the case has been discharged by the plaintiff appellant. This substantial question of law is answered accordingly. Substantial question of law No. 2 : 19. Since the plaintiff himself has admitted half share of Badruddin in the house Nos. 21, 22 and 24 and also in the land appurtenant to it which is subject-matter of the suit and forms part of the houses, therefore, the transfer of the land appurtenant to the aforesaid houses made by Badruddin in favour of his daughter Aqeela is valid upto the extent of his half share and that could have been transferred by Smt. Aqeela by way of registered sale-deed dated 2.2.1999 in favour of defendant respondent. In other words, on the basis of registered sale-deed executed in his favour defendant respondent is entitled to one half share in the property in suit. The trial Court itself considered the question of sale-deed being valid to the extent of half share of Badruddin. 20. The legal position herein is that an undivided share of co-sharer may be a subject matter of sale but possession cannot be handed over to the vendee unless the property is partitioned by metes and bounds amicably and through mutual settlement or by a decree of the Court. By virtue of Section 44 T.P.Act such transferee is not entitled even to joint possession if transferred property is dwelling house. 21. By virtue of Section 44 T.P.Act such transferee is not entitled even to joint possession if transferred property is dwelling house. 21. Section 44 of the Transfer of Property Act, 1882 reads as under : “44. Transfer by one co-owner.—Where one of two or more co-owners of immoveable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give, effect to the transfer, the transferor’s right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred. Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house.” 22. As pointed out above that the property in dispute is the land appurtenant to house Nos. 21, 22 and 24 and all these properties are in the joint co-ownership with possession of plaintiff and his brother Badruddin, the second part of Section 44 of the Transfer of Property Act, 1882 is fully attracted in the facts and circumstances of the case which lays down that where the transferee of a share of a dwelling house belonging to an undivided family is not the member of the family, nothing in this section would be deemed to entitle him to joint possession or other common or part enjoyment of the house. Undisputedly the defendant is stranger to the family of the plaintiff. The remedy open to him is partition. 23. Undisputedly the defendant is stranger to the family of the plaintiff. The remedy open to him is partition. 23. In case law Hariharayyar and another ...Appellants v. Ahammadunni and others, AIR 1940 Mad 491 , it was held that where one of two or more co-owners of immovable property, legally competent in that behalf, transfers his share of such property or any interest therein, the transferee acquires, as to such share or interest, and so far as is necessary to give effect to the transfer, the transferor’s right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting, at the date of the transfer, the share of interest so transferred. 24. Likewise in case law Chhote Khan and others, Appellants v. Mal Khan and others, Respondents, AIR 1954 SC 575 (Vol. 41, C.N. 132) it was held in para 21 of the judgment as under : “ (21) We agree with the High Court in holding that partition is a right incident to the ownership of property and once the defendants are held as co-owners, their right to partition cannot be resisted. “ 25. The appraisal of evidence on record, in the light of the aforesaid legal position on the point of burden of proof, it is clear as pointed out above while answering the substantial question of law No. 1 that plaintiff has discharged his initial burden to prove his case and the defendant respondent failed to prove that the land in suit alongwith dwelling house Nos. 22, 23 and 24 was self acquired/exclusive property of Badruddin. There is no evidence to that effect adduced by the defendant respondent to show that the property was acquired by Badruddin and for want of evidence to this effect it is the defendant who is the looser, therefore, the burden to prove lies on him. This second substantial question of law is answered accordingly. 26. The concurrent findings recorded by both the Courts below are not tenable under the law. Therefore, judgment and decree passed by the trial Court as well as appellate Court are hereby set aside and the Original Suit No. 234 of 1999 instituted by plaintiff before the trial Court is decreed. This second substantial question of law is answered accordingly. 26. The concurrent findings recorded by both the Courts below are not tenable under the law. Therefore, judgment and decree passed by the trial Court as well as appellate Court are hereby set aside and the Original Suit No. 234 of 1999 instituted by plaintiff before the trial Court is decreed. In the result, defendant/respondent is restrained from making any kind of interference in the peaceful possession of plaintiff and raising construction over the land in suit without getting it partitioned by a competent Court of law. Second appeal stands allowed accordingly. ——————