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2017 DIGILAW 281 (MAD)

Naina Mohammed v. Mohammed Labbai Gani

2017-02-01

TEEKAA RAMAN

body2017
JUDGMENT : The defeated defendants are the appellants herein. 2. The respondent/plaintiff filed the suit in O.S.No.409 of 1991, before the learned District Munsif, Pattukottai, for the relief of declaration of title to the suit property, recovery of possession and also for mesne profits. 3. After contest, the learned District Munsif, Pattukottai, by Judgment and Decree, dated 24.11.1997, dismissed the suit with costs. 4. Aggrieved by the Judgment and Decree passed by the learned District Munsif, Pattukottai, the respondent/plaintiff preferred an appeal, in A.S.No.5 of 1998, before the learned Subordinate Judge, Pattukottai. 5. On re-appreciation of the entire oral and documentary evidence, the learned Subordinate Judge, Pattukottai, by Judgment and Decree, dated 26.06.1998, allowed the appeal, set aside the Judgment and Decree passed by the learned District Munsif, Pattukottai, and decreed the suit. 6. Challenging the correctness of the Judgment and Decree passed by the learned Subordinate Judge, Pattukottai, the defeated defendants have preferred the present second appeal. 7. The brief averments of the plaint that are necessary to decide this appeal are as follows: The suit property is situated in Thiruvathevan Village, comprised in Survey No.335, measuring an extent of 13.64.5 Ares. The suit property comprised in Survey No.335 and the lands comprised in Survey Nos.336 and 337 were originally in possession of one Sundaram Pillai. On 11.04.1977, the plaintiff's wife, namely, Rasul Beevi purchased northern portion of the land comprised in Survey No.335, measuring an extent of 6 Acres and 57 Cents, from the said Sundaram Pillai. Prior to the said purchase, the southern portion of the said Survey No.335, measuring an extent of 5 Acres was purchased by one Pathamuthu Ammal, from the said Sundaram Pillai. Thereafter, on 13.10.1982, from the said Pathamuthu Ammal, the plaintiff purchased the said southern portion measuring an extent of 5 Acres. There is a balance land in Survey No.335 adjacent to the southern portion of 5 Acres and the same has been purchased by the fifth defendant. There is a pathway between the lands purchased by the plaintiff and the fifth defendant. The plaintiff's land is situated on the northern side and the fifth defendant's land is situated on the southern side of the pathway. Since the plaintiff always goes abroad and his wife is also a Kosha woman, the fifth defendant managed the lands purchased by them. The plaintiff's land is situated on the northern side and the fifth defendant's land is situated on the southern side of the pathway. Since the plaintiff always goes abroad and his wife is also a Kosha woman, the fifth defendant managed the lands purchased by them. Taking advantage of the absence of the plaintiff, during the year 1985, the fifth defendant shifted the pathway towards northern side and destroyed the old pathway. The land situated between the old pathway and the newly formed pathway by the fifth defendant is the suit property. When Patta was given under UDR Scheme, the land situated on the northern side of the pathway was renumbered as Survey No.335/1 and accordingly UDR Patta was given to the plaintiff and the pathway land was renumbered as Survey No.335/2 and its extent is 22 Ares. The land situated on the southern side of the pathway was renumbered as Survey No.335/3 and for which, UDR Patta was given to the fifth defendant. The total extent of the land purchased by the plaintiff and his wife is 11 Acres and 57 Cents. But, as per UDR Patta, there is a shortage of 2 Acres and 18 Cents in respect of the land in Survey No.335/1 and at the same time, there is excess of land in Survey No.335/3 belongs to the fifth defendant. The shortage land and the excess land has been shown as ABCDE in the Sketch and it belongs to the plaintiff. Therefore, he raised an objection before the Tahsildar concerned objecting the shortage of land. But, the Tahsildar informed the plaintiff to seek remedy before the Civil Court by filing civil suit. In the meantime, the fifth defendant had also put up fencing on the northern side of the newly formed pathway. The plaintiff is entitled to an extent of 11 Acres and 57 Cents in Survey No.335 and the remaining 22 Acres and 50 Cents alone is entitled to the fifth defendant. However, the fifth defendant sold the land in excess to the said extent to the defendants 1 to 4. Therefore, the plaintiff is entitled to the reliefs sought for. 8. The brief averments of the written statement filed by the fifth defendant and adopted by the defendants 1 to 4 are as follows: The plaintiff's pleas are utter false. However, the fifth defendant sold the land in excess to the said extent to the defendants 1 to 4. Therefore, the plaintiff is entitled to the reliefs sought for. 8. The brief averments of the written statement filed by the fifth defendant and adopted by the defendants 1 to 4 are as follows: The plaintiff's pleas are utter false. The alleged sale said to have been executed by Sundaram Pillai in favour of the plaintiff's wife in respect of the land in Survey No.335 is false. They refused the extent of the land i.e., 11 Acres and 57 Cents. The pathway, which is situated between the lands purchased by the plaintiff and the fifth defendant, is the original pathway. There is a fencing on the northern side of the pathway. The land situated on the northern side of the fencing belongs to the plaintiff. The defendants left ten feet land on the southern side of the fencing as vacant. On the northern side of the fencing only, the plaintiff had planted coconut trees. The fifth defendant had never encroached the plaintiff's land taking advantage of the plaintiff's absence. The fifth defendant purchased the land in Survey No.335 from one Kunjammal and thereafter, sold the same to the defendants 1 to 4. In the total extent of land, during 1986-1987, coconut trees had been planted. The sketch filed along with the plaint is incorrect. The alleged purchase of 11 Acres and 57 Cents of land by the plaintiff is incorrect. Patta has been given to the possession of the plaintiff. Since the fifth defendant is working in abroad, he himself is in need of assistance of others. In such circumstances, the alleged encroachment by the fifth defendant is incorrect. The land in Survey No.337/1 belongs to the fifth defendant and in which somebody had formed huts and they were vacated by the fifth defendant. The suit filed against the fifth defendant as well as the defendants 1 to 4 at the same time is not maintainable. The plaintiff is not entitled to the relief sought for. Therefore, the suit filed by the plaintiff is liable to be dismissed. 9. Based upon the above pleadings, the Trial Court had framed as many as many as six issues for consideration. 10. The plaintiff is not entitled to the relief sought for. Therefore, the suit filed by the plaintiff is liable to be dismissed. 9. Based upon the above pleadings, the Trial Court had framed as many as many as six issues for consideration. 10. The respondent/plaintiff, in order to substantiate his plea, had examined himself as P.W.1 and examined one Ramu as P.W.2 and marked Exs.A1 to A20 and on the side of the appellants/defendants, the fifth defendant Ramanan was examined as D.W.1 and on the side of the appellants/defendants Exs.B1 to B9 were marked and the reports of the Advocate Commissioner and Sketch of the Advocate Commissioner and the Surveyor were marked as Exs.C1 to C5 respectively. 11. Based upon the pleadings of the parties and the evidence in both oral and documentary, the Trial Court came to the conclusion that the respondent/plaintiff is not entitled to the suit property and dismissed the suit with costs. 12. As stated supra, the unsuccessful respondent/plaintiff preferred first appeal in A.S.No.5 of 1998, before the learned Subordinate Judge, Pattukottai and the learned First Appellate Judge, on re-appreciation of entire oral and documentary evidence, came to the conclusion that the respondent/plaintiff is entitled to the suit property and accordingly, allowed the appeal, set aside the Judgment and Decree of the learned Trial Judge and decreed the suit. Hence, the second appeal. 13. Heard both sides. Perused the materials and the notes of arguments filed by the learned counsel for the respondent/plaintiff on 27.01.2017. 14. At the time of admission, the following substantial questions of law were framed for consideration: i. Whether the boundaries given in the sale deeds of the respondent/plaintiff will prevail over the extent of land given in the sale deeds of the appellants/defendants? And ii. Whether the first appellate court misread the evidence and failed to consider the materials on record in decreeing the suit of the respondent/plaintiff for the relief of declaration and possession in respect of the suit property? 15. As stated above, the respondent/plaintiff filed the above suit in O.S.No.409 of 1991, before the learned District Munsif, Pattukottai, seeking the relief of declaration of title to the suit property, recovery of possession and also for mesne profits. 16. 15. As stated above, the respondent/plaintiff filed the above suit in O.S.No.409 of 1991, before the learned District Munsif, Pattukottai, seeking the relief of declaration of title to the suit property, recovery of possession and also for mesne profits. 16. The plaint proceeds on the basis that originally, the suit property comprised in Survey No.335 and other lands in Thiruvathevan were in possession of one Sundaram Pillai and from whom, the respondent/plaintiff's wife Rasul Beevi purchased the northern portion of the land comprised in Survey No.335, measuring an extent of 6 Acres and 57 Cents, on 11.04.1977. Prior to the said sale, on 27.12.1975, the southern portion of the same survey number, measuring an extent of 5 Acres, was purchased by Pathamuthu Ammal, from whom, the respondent/plaintiff purchased the same on 13.10.1982 and thereby he owned 11 Acres and 57 Cents of land in Survey No.335. However, in the UDR Patta issued in the year 1988 in favour of the respondent/plaintiff, there was a shortage of 2 Acres and 18 Cents and when he approached the Tahsildar concerned for correction, he was informed to seek remedy before the Civil Court by filing a civil suit and accordingly, he has filed the present suit. 17. The respondent/plaintiff further stated that since he was working in abroad, he had entrusted the work to the fifth appellant/fifth defendant, namely, Ramanan. But, the fifth appellant/fifth defendant taking advantage of the respondent/plaintiff's absence had shifted the pathway situated between their respective lands towards northern side and encroached upon the respondent/plaintiff's 2 Acres and 18 Cents of land and hence, he sought for the relief of recovery of possession. 18. According to the fifth appellant/fifth defendant, he has purchased 22 Acres and 36 Cents of land in Survey No.335, from Kunjammal, under Exs.A17 to A20 and the alleged pathway stated by the respondent/plaintiff is available and hence, he sought for rejection of the relief sought for by the respondent/plaintiff. 19. Before the Trial Court, in view of the dispute with regard to the extent of land mentioned in the UDR Patta with that of the claim of the respondent/plaintiff, he had moved an interim application for appointment of Advocate Commissioner and consequently, an Advocate Commissioner was appointed and he inspected the suit property and filed his report and sketch, which were marked as Exs.C1 and C2 respectively. However, in view of certain internal deficiencies, the same Advocate Commissioner re-inspected the suit property and filed his further reports and sketch, which were marked as Exs.C3 to C5 respectively. 20. On considering both the oral and documentary evidence, the Trial Court came to the conclusion that the respondent/plaintiff had not proved his claim in respect of the land, comprised in Survey No.335, measuring an extent of 11 Acres and 57 Cents and therefore, non-suited the respondent/plaintiff and aggrieved by the same, the respondent/plaintiff preferred an appeal in A.S.No.5 of 1998, before the learned Subordinate Judge, Pattukottai and the Lower Appellate Court, on re-appreciation of the evidence both oral and documentary and also taking into consideration the facts and circumstances of the case, came to the conclusion that the respondent/plaintiff, has proved his case and therefore, allowed the appeal, set aside the Judgment and Decree of the Trial Court and decreed the suit. Therefore, the appellants/defendants are before this Court. 21. The undisputed facts are as follows: The land comprised in new Survey No.335/2, measuring an extent of 0.22.00 Ares and the northern portion of Survey No.335/2, measuring an extent of 0.63 Ares are the suit property. Originally, the entire extent of land comprised in Survey No.335, measuring an extent of 33 Acres and 72 Cents equivalent to 13.64.5 Hectares, was in possession of one Sundaram Pillai and he is the common vendor for both the respondent/plaintiff as well as the fifth appellant/fifth defendant. Under Ex.A1 Sale Deed, dated 11.04.1977, Sundaram Pillai sold northern portion of the land measuring an extent of 6 Acres and 57 Cents to the respondent/plaintiff's wife, namely, Rasul Beevi and prior to the said sale, the southern portion of the said survey number, measuring an extent of 5 Acres of land was already sold by the said Sundaram Pillai in favour of one Pathamuthu Ammal, on 27.12.1975, under Ex.A2 and the same was purchased by the plaintiff under Ex.A3 Sale Deed, dated 13.10.1982. Thus, under Exs.A1 to A3, 11 Acres and 57 Cents of land in Survey No.335 was purchased by the plaintiff. From and out of the remaining land to an extent of 22 Acres and 15 Cents, Sundaram Pillai sold an extent of 11 Acres of land to one Kunjammal and from whom, the same was purchased by the fifth appellant/fifth defendant Ramanan. 22. From and out of the remaining land to an extent of 22 Acres and 15 Cents, Sundaram Pillai sold an extent of 11 Acres of land to one Kunjammal and from whom, the same was purchased by the fifth appellant/fifth defendant Ramanan. 22. The case of the appellants 1 to 4/defendants 1 to 4 is that under Exs.B1 and B2, they have purchased 22 Acres and 32 Cents of land in Survey No.335 from the fifth appellant/fifth defendant. If we club together all the sale deeds executed in favour of the respondent/plaintiff and the fifth appellant/fifth defendant by the common vendor Sundaram Pillai, the total extent goes to 33 Acres and 89 Cents, which is excess to the actual extent of land. The attention of the Court was drawn to the evidence of D.W.1, namely, Ramanan, who deposed evidence that the appellants 1 to 4/defendants 1 to 4 have purchased 22 Acres and 32 Cents of land in Survey No.335, under Exs.B1 and B2 Sale Deeds. Admittedly, the fifth appellant/fifth defendant Ramanan has purchased the said land from one Kunjammal, who had purchased the same from the common vendor Sundaram Pillai. In other words, the appellants 1 to 4/defendants 1 to 4 derived their title over the said land from the fifth appellant/fifth defendant and Kunjammal, who is said to have purchased the said land from Sundaram Pillai. 23. On close scanning and scrutiny of Exs.A1 to A3 it is seen that the total extent of the land in the disputed survey number is only 11 Acres and 57 Cents. The core contention of the fifth appellant/fifth defendant is that the northern portion of his land is situated on the southern side of the respondent/plaintiff's land and admittedly, there was a pathway leading to the seashore. As observed earlier, if the sale deeds executed in favour of both the parties are clubbed together, the extent of land conveyed exceeds to the total extent of land stated in the said survey number. As observed earlier, if the sale deeds executed in favour of both the parties are clubbed together, the extent of land conveyed exceeds to the total extent of land stated in the said survey number. At the risk of repetition and for the purpose of clarity, it is necessary to state once again that the fifth appellant/fifth defendant was having his land on the southern side of the respondent/plaintiff's property and since the respondent/plaintiff was staying in abroad and his wife was a kosa woman, the fifth appellant/fifth respondent looking after their property and taking advantage of their absence, he had shifted the pathway, which is segregating their property, towards northern side and thereby he had encroached upon the respondent/plaintiff's land and resulting in shortfall in the Patta to an extent of 2 Acres and 18 Cents and therefore, the respondent/plaintiff sought the relief of declaration of title to an extent of 11 Acres and 57 Cents of land. 24. Though the appellants 1 to 4/defendants 1 to 4 claimed title to the suit property based upon Exs.A17 to A20, for the reasons best known, they have not produced the original sale deeds said to have been executed in favour of the fifth appellant/fifth defendant by Kunjammal. Besides, the appellants 1 to 4/defendants 1 to 4 had not entered the witness box. However, on their side, the fifth appellant/fifth defendant was examined as P.W.1. Though he has filed Exs.B1 and B2, which are sale deeds executed by him in favour of the appellants 1 to 4/defendants 1 to 4 respectively, he has not filed his parent documents, namely, sale deeds said to have been executed in his favour by Kunjammal or the sale deed executed in favour of Kunjammal by Sundaram Pillai. Before the Trial Court, the respondent/plaintiff has adopted the much old technique of marking of documents in the cross-examination of D.W.1, who has omitted to place those documents before the Court on deliberate action. It remains to be stated during the cross- examination of D.W.1 (fifth appellant/fifth defendant) with regard to execution of Exs.A17 to A20, on 10.11.1978, 12.12.1978, 07.04.1979 and 16.06.1980 respectively by Kunjammal in favour of the fifth appellant/fifth defendant. On a close perusal of those documents, it is seen that the total extent of land covered therein comes to only 16 Acres. 25. On a close perusal of those documents, it is seen that the total extent of land covered therein comes to only 16 Acres. 25. At this juncture, it would be more relevant to refer the admission made by D.W.1, in his cross-examination, which reads as follows: --- in other language -------- 26. Further, Exs.A17 to A20 are all sale deeds executed by Kunjammal in favour of the fifth appellant/fifth defendant (D.W.1). Since the D.W.1 has admitted that these are all sale deeds executed in his favour, the same were rightly marked by the Trial Court during the cross-examination of D.W.1 as Exs.A17 to A20. Further, for the reasons best known, D.W.1 has chosen to suppress those documents from placing it before the Court to advance his case that his vendor has sold 22 Acres and 34 Cents of land. D.W.1, in his cross- examination, has admitted that -- in other language ----- Thus, in view of the specific admission in the cross-examination of D.W.1 relating to Exs.A17 to A20, it is crystal clear that he had purchased only an extent of 16 Acres from Kunjammal, who had purchased the same from Sundaram Pillai. However, he had sold 22 Acres and 34 Cents to the appellants 1 and 2/defendants 1 and 2 i.e., he has sold more extent of land in the said survey number than he has purchased from the said Kunjammal. 27. Furthermore, though the said Kunjammal purchased only an extent of 16 Acres of land, the fifth appellant/fifth defendant sold larger extent of 22 Acres 34 Cents of land to the appellants 1 to 4/defendants 1 to 4, under Exs.B1 and B2 and for which there is a recital saying that the fifth appellant/fifth defendant has purchased certain lands by way of unregistered documents. This Court is unable to affix the seal of approval to the said recital, since the same is not placed before the Court and it is not passed the test of legal scrutiny. The similar finding, on different analysis, by the Lower Appellate Court is well considered and well merited and it does not warrant any interference by this Court. 28. The similar finding, on different analysis, by the Lower Appellate Court is well considered and well merited and it does not warrant any interference by this Court. 28. Admittedly, the vendor of the appellants 1 to 4/defendants 1 to 4 is the fifth appellant/fifth defendant, who has purchased the property from Kunjammal, while she has purchased 16 Acres of land in the suit survey number as it could be seen from Exs.A17 to A20. However, the fifth appellant/fifth defendant, who had chosen to convey more extent of land than he purchased under those documents, has come forward with a legally un- sustainable plea that he has purchased more extent of land by way of unregistered documents and hence, this Court holds that the respondent/plaintiff has successfully demonstrated the total extent of land covered under those sale deeds Exs.A1 to A3 and the excess of land conveyed by the fifth appellant/fifth defendant by a camouflage manner to the appellants 1 to 4/defendants 1 to 4 by showing more extent of land i.e., 2 Acres and 18 Cents in the manner known to law and the similar finding arrived at by the Lower Appellate Court, on a different reasoning, is hereby confirmed. 29. Now, let us deal with the aspect that whether the excess of land i.e., 2 Acres and 18 Cents is the suit property. It is the case of both the parties that between their respective properties, there was a pathway. The land situated on the northern side of the pathway belongs to the respondent/plaintiff and the land situated on the southern side of the pathway belongs to appellants/defendants. It is the case of the respondent/plaintiff that during his absence, the fifth appellant/fifth defendant was entrusted to look after his property and taking advantage of such situation, the fifth appellant/fifth defendant has moved forward on the northern side and created a pathway and thereby encroached upon 2 Acres and 18 Cents of land. Since UDR Patta was based upon UDR Scheme for levy of land tax, an error was occurred and taking advantage of the error in the UDR Scheme, the fifth appellant/fifth defendant has sold the land to the appellants 1 to 4/defendants 1 to 4 and for which, he has no title to convey. 30. Since UDR Patta was based upon UDR Scheme for levy of land tax, an error was occurred and taking advantage of the error in the UDR Scheme, the fifth appellant/fifth defendant has sold the land to the appellants 1 to 4/defendants 1 to 4 and for which, he has no title to convey. 30. With regard to the existence of alleged pathway as stated by the respondent/plaintiff in the plaint, he had examined the Ex-President of Thiruvathevan Village Panchayat, namely, Ramu, as P.W.2. He has deposed that during his tenure, there was a dispute between the respondent/plaintiff and the fifth appellant/fifth defendant. He has further deposed that --in other language ----- In the cross-examination, he has specifically stated that ---- in other language ---- Thus, it is categorically clear that when the original pathway has been shifted towards northern side, the Village Panchayatars had raised objection for the same and therefore, the fifth appellant/fifth defendant has given a pathway on the northern side of the old pathway and converted the original pathway into that of a Coconut Grove. The said evidence of P.W.2 in the cross-examination duly stands corroborated with the sketch of the Advocate Commissioner marked as Exs.C2 and C4 and thus, this Court finds that the respondent/plaintiff has successfully demonstrated before the Court that the fifth appellant/fifth defendant has unlawfully trespassed into his property from the southward to northward and converted the existing pathway into a Coconut Grove and formed a pathway on the northern side of the old pathway that is now in the suit property of the respondent/plaintiff. 31. On a combined reading of the independent evidence of P.W.2, who is Ex- President coupled with the Advocate Commissioner's reports and sketch marked as Exs.C1 to C4, this Court comes to the conclusion that the fifth appellant/fifth defendant had shifted the existing pathway on the northern side by encroaching upon the respondent/plaintiff's land. 32. The learned counsel appearing for the appellants/defendants has strongly relied upon Ex.A13 UDR Patta granted in favour of the respondent/plaintiff and his wife. 33. It is a settled proposition of law that under UDR Scheme (Up Dating Revenue Record Scheme), the Gramanatham lands were surveyed and survey numbers have been assigned. There was an attempt by the Government to levy tax (Natham Nilavari Thittam). Therefore, under that scheme, the Natham lands were surveyed and resurvey numbers were assigned and pattas were issued. 33. It is a settled proposition of law that under UDR Scheme (Up Dating Revenue Record Scheme), the Gramanatham lands were surveyed and survey numbers have been assigned. There was an attempt by the Government to levy tax (Natham Nilavari Thittam). Therefore, under that scheme, the Natham lands were surveyed and resurvey numbers were assigned and pattas were issued. Since Gramanatham is the habitation where the land owners may build houses and reside they were known as house sites. They were classified as Gramanatham to differentiate the land from Inam lands Ryotwari lands, pannai lands and waste lands. While the lands under the other classifications vested with the Government, the Gramanatham never vested with the State. However, under the UDR Scheme, to enforce a tax on the Natham lands, a Thoraya Patta, for tax purpose was issued to those persons who claimed to be the land holders. The land holding is based on the title through the predecessor-in-title. Therefore, the Patta issued under UDR scheme is not the Patta under the Land Encroachment Act and there is no bar of the jurisdiction of the Civil Court under Section 14 of the Land Encroachment Act. 34. The learned counsel appearing for the appellants/defendants submitted that the respondent/plaintiff is entitled only to the extent mentioned in Ex.A13 Patta and not more. 35. As stated in the preceding paragraphs, under Exs.A1 to A3 Sale Deeds, the respondent/plaintiff has acquired title to the full extent of the land. Since the respondent/plaintiff was working in abroad, he engaged the fifth appellant/fifth defendant to look after the land as he being the adjacent land owner. But, the fifth appellant/fifth defendant had taken advantage of the situation and obtained Patta in his name for a larger extent than the extent to which he is entitled to. Issuance of Patta under UDR Scheme is only for the purpose of imposing tax on Natham lands and that will not confer any title to the fifth appellant/fifth defendant unless he proves that he is the land owner. Admittedly, the vendor of the appellants 1 to 4/defendants 1 to 4, namely, fifth appellant/fifth defendant, in his cross-examination, has categorically admitted that though he has purchased lesser extent, he had chosen to sell a larger extent, which goes against the case of the appellants/defendants with regard to their title. Admittedly, the vendor of the appellants 1 to 4/defendants 1 to 4, namely, fifth appellant/fifth defendant, in his cross-examination, has categorically admitted that though he has purchased lesser extent, he had chosen to sell a larger extent, which goes against the case of the appellants/defendants with regard to their title. Furthermore, merely because Ex.A13 Patta issued under UDR Scheme in favour of the respondent/plaintiff is for lesser extent than the extent he purchased, in view of his title as explained under Exs.A1 to A3 Sale Deeds, that will not extinguish his title to the suit property. Therefore, the contention of the appellants/defendants that whether issuance of Patta under UDR Scheme in favour of the appellants/defendants would extinguish the right of the respondent/plaintiff is not sustainable and besides, the respondent/plaintiff has successfully demonstrated his title to the suit property by registered documents. 36. The learned counsel for the appellants/defendants further submitted that without setting aside the Patta issued under UDR Scheme, the respondent/plaintiff cannot claim title over the disputed area of 2 Acres and 18 Cents. 37. As stated supra, issuance of Patta under UDR Scheme in favour of the fifth appellant/fifth defendant for a larger extent and issuance of Patta under UDR Scheme in favour of the respondent/plaintiff for a lesser would not extinguish the right of the respondent/plaintiff acquired by him under Exs.A1 to A3 Sale Deeds. The nature and scope of the Patta issued under UDR Scheme is only to the limited extent of levying tax on the land for revenue purpose, in short, Patta under UDR Scheme is issued only to impose land tax and the same is not the Patta issued under the Land Encroachment Act and that will not confer any title over the property. 38. With regard to the scheme of the suit instituted by the plaintiff is concerned, in Anathula Sudhakar v. P.Buchi Reddy (Dead), reported in 2008 (6) CTC 237, the Hon'ble Supreme Court has held as follows: “11. The general principles as to when a mere Suit for permanent injunction will lie, and when it is necessary to file a Suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly. 11.1. The general principles as to when a mere Suit for permanent injunction will lie, and when it is necessary to file a Suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly. 11.1. Where a plaintiff is in lawful or peaceful possession of a suit property and such possession is interfered or threatened by the defendant, a Suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner. 11.2. Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a Suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession. 11.3. Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a Suit for declaration, possession and injunction.” 39. In the instant case on hand, the respondent/plaintiff filed the suit for the relief of declaration of his title and recovery of possession along with mesne profits. Therefore, this Court finds that the prayer of the suit/scheme of the suit filed, under Section 37 and 38 of the Specific Relief Act, is in accordance with law laid down by the Hon'ble Supreme Court in Anathula Sudhakar (cited supra). 40. With regard to proving of possession is concerned, it is to be stated that in a situation where the property is building or building with appurtenant land, there may not be much difficulty in establishing possession. The plaintiff has to prove his physical or lawful possession, either by himself or through his family members/agents/lessees/licencsees. 40. With regard to proving of possession is concerned, it is to be stated that in a situation where the property is building or building with appurtenant land, there may not be much difficulty in establishing possession. The plaintiff has to prove his physical or lawful possession, either by himself or through his family members/agents/lessees/licencsees. Even in respect of land without structures like agricultural land, possession may be established with reference to actual use and cultivation. But, if the property is vacant site which is not physically possessed, used or enjoyed, the principle is that possession follows title. If two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered to be in possession, as against the person who is not able to establish the title. 41. In the instant case on hand, for the reasons recorded in the preceding paragraphs, based upon the oral evidence of P.W.1 and Ex.A17, the old pathway as pleaded by the respondent/plaintiff is found to be in existence and furthermore, it is also duly corroborated by Exs.C1 and C2/Advocate Commissioner's Report and Sketch. Further, P.W.2/Ex-President of Thiruvathevan Village Panchayat, who is an independent witness, has also spoken about the shifting of pathway towards northern side from its original position, which lends support to the version of P.W.1 and substantiates the case of the respondent/plaintiff. 42. At this juncture, it has to be stated that initial burden of proof would be on the plaintiff in view of Section 101 of the Evidence Act, which reads as under: “Burden of proof.- 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.” 43. In terms of the said provision, the burden of proving fact rests on the person, who substantially asserts affirmative issues and not party who denies it. 44. In the instant case on hand, the respondent/plaintiff has specifically pleaded about the purchase of the suit property along with other properties under Exs.A1 to A3 and the entrustment of the land for maintenance by the fifth appellant/fifth defendant and also about the shortage of extent in Ex.A13 Patta issued in his name. 44. In the instant case on hand, the respondent/plaintiff has specifically pleaded about the purchase of the suit property along with other properties under Exs.A1 to A3 and the entrustment of the land for maintenance by the fifth appellant/fifth defendant and also about the shortage of extent in Ex.A13 Patta issued in his name. Further, he has marked his Passport as Ex.A4 in order to substantiate the fact that during the relevant point of time, he was in abroad and thereby, he has proved his pleadings and discharged the initial burden rests on his shoulder. 45. At this juncture, it is relevant to state that there is a distinction between ‘burden of proof’ and ‘onus of proof’. The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is which party is to begin. Burden of proof is used in three ways. They are: (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later; (ii) to make that of establishing a proposition as against all counter evidence; and (iii) an indiscriminate use in which it may mean either or both of the others. The elementary rule in Section 101 is inflexible. 46. In terms of Section 102 of Evidence Act, the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same. 47. In R.V.E.Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P.Temple and Anr., reported in JT 2004 (6) SC 442, the law is stated in the following terms: “29. 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 defendant from his possession over the suit property and for the possession to be restored to him. However, as held in A.Raghavamma v. A.Chenchamma there is an essential distinction between burden of proof and onus of proof; burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. However, as held in A.Raghavamma v. A.Chenchamma there is an essential distinction between burden of proof and onus of proof; burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. In our opinion, in a suit for possession based on title once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant it is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiff's title.” 48. As discussed supra, at the risk of repetition, however for the sake of clarity, it has to be stated that by adducing documentary evidence under Exs.A1 to A3 and A17, the respondent/plaintiff has pleaded his case, which stands duly corroborated by the independent evidence of D.W.1/fifth defendant, who is the vendor of the appellants 1 to 4/defendants 1 to 4, to the effect that he had effected sale over and above the extent he has purchased from Kunjammal. Further, the contesting defendants, namely, defendants 1 to 4 have not entered the witness box and they have not examined themselves, which assumes more significance. The yet another issue is that D.W.5, has admitted in his cross-examination, that he had purchased lesser extent of land under Exs.A17 to A20, but, he has not marked those documents and the respondent/plaintiff had marked those documents during the cross- examination of D.W.1. When D.W.5 confronted with the extent of land covered under Exs.A17 to A20, he has given a categorical admission that he has purchased only 16 Acres of land, however, sold more extent of land to the appellants 1 to 4/defendants 1 to 4. 49. As held in Sherwood Educational Society v. Abid Namazie and two others, reported in 1997 (1) MLJ 445 , the best piece of evidence in a case is the admission of the opposite party. 49. As held in Sherwood Educational Society v. Abid Namazie and two others, reported in 1997 (1) MLJ 445 , the best piece of evidence in a case is the admission of the opposite party. D.W.1 is none other than the vendor of the appellants 1 to 4/defendants 1 to 5 and hence, this Court holds that the respondent/plaintiff has successfully discharged the burden of proof rests on his shoulder to substantiate the fact that he has purchased the suit property and he is the real owner. However, the appellants 1 to 4/defendants 1 to 4, who have purchased the property from the fifth appellant/fifth defendant, have not let in any piece of evidence to discharge their burden as to how they are entitled to the excess land. As stated supra, the appellants 1 to 4/defendants 1 to 4 have not entered the witness box to depose evidence and hence an adverse inference has to be drawn as per Sections 145 and 114(g) of the Evidence Act and the presumption that the respondent/plaintiff set up the case is not correct and hence, this Court holds that in view of overwhelming evidence adduced by the respondent/plaintiff, the Lower Appellate Court is quite right in holding that even though there is a shortage of extent in the UDR Patta, but as per Exs.A1 to A3 Sale Deeds, the respondent/plaintiff has established his title to the suit property, which is just and proper and in view of the specific admission of D.W.1, in his cross-examination and non-examination of appellants 1 to 4/defendants 1 to 4, the Lower Appellate Court has correctly come to the conclusion that the respondent/plaintiff has proved the case and decreed the suit. In this view of the matter, the findings of the Lower Appellate Court are just and proper and does not warrant any interference of this Court. Even though two substantial questions of law have been formulated at the time of admission of this appeal, they do not emerge to the facts and circumstances of the case and hence, both are negatived against the appellants/defendants. 50. Even though two substantial questions of law have been formulated at the time of admission of this appeal, they do not emerge to the facts and circumstances of the case and hence, both are negatived against the appellants/defendants. 50. In the result, the second appeal is dismissed with cost of Rs.3,000/- (Rupees three thousand only) and the Judgment and Decree, dated 26.06.1998, made in A.S.No.5 of 1998, by the learned Subordinate Judge, Pattukottai, reversing the Judgment and Decree, dated 24.11.1997, made in O.S.No.409 of 1991, by the learned District Munsif, Pattukottai, are confirmed.