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2019 DIGILAW 563 (MAD)

K. S. Krishna Chetty v. Chinna Pappammal

2019-03-01

C.V.KARTHIKEYAN

body2019
JUDGMENT : C.V. Karthikeyan, J. 1. The defendant in O.S. No. 70 of 1982 on the file of the Sub Court, Krishnagiri is the appellant herein. 2. O.S. No. 70 of 1982 had been filed by the plaintiff Chinnapappammal, against the defendant K.S. Krishna Chetty, seeking a judgment and decree to declare her title to the suit property and also to restrain the defendant by an order of permanent injunction from trespassing or interfering with her peaceful possession and also to grant costs of the suit. By judgment dated 12.05.1987, the learned Sub Judge, Krishnagiri, decreed the suit. 3. The defendant then filed A.S. No. 68 of 1987 before the District Court, Dharmapuri at Krishnagiri. By judgment and decree dated 11.05.1994, the learned District Judge at Krishnagiri, confirmed the Judgment of the learned Sub Judge and dismissed the appeal. 4. The defendant had then filed the present Second Appeal. The Second Appeal had been admitted on the following two substantial questions of law: 1. Whether the Courts below erred in law in granting a decree in favour of the plaintiff in respect of the suit property in view of the fact that the predecessors in title of the plaintiff and the defendant were entitled to half share in 1.63 acres of land in S. No. 666/2 respectively and in view of the fact that the Government of Tamil Nadu had acquired the extent of 88 cents in S. No. 666/2? 2. Whether the courts below erred in law in placing the burden of proof with regard to the title of the property on the defendant, when it is for the plaintiff to establish the title to the suit property? 5. Pending the appeal, defendant/appellant died and his legal representatives were originally brought on record. The plaintiff/respondent also died and her legal representatives were also brought on record. O.S. No. 70 of 1982 (Sub Court, Krishnagiri):- 6. The plaintiff claimed that she had purchased 1.10 acres in S. No. 666/2, Bargur Village, Krishnagiri, by sale deed dated 25.11.1953. The Government had later acquired 88 cents for the construction of a Police Station Quarters, leaving out 22 cents. It was stated that the said 22 cents was South of a percolation pond known as Kasam Kuttai and west of the Kasam and channel. It was claimed that these are permanent features. The Government had later acquired 88 cents for the construction of a Police Station Quarters, leaving out 22 cents. It was stated that the said 22 cents was South of a percolation pond known as Kasam Kuttai and west of the Kasam and channel. It was claimed that these are permanent features. The defendant owned lands to the East of the said pond and channel. He has no manner of right or interest in the suit property. The plaintiff claimed to be in possession. It was further claimed that the defendant attempted to trespass on 19.09.1982 necessitating institution of the suit seeking declaration of title and permanent injunction. 7. The suit property was described as 22 cents in S. No. 666/2B, Bargur Village, situated East of Police Station area, South of Kasam Kuttai, West of kasam channel and North of S. No. 667. 8. In the written statement, the averments in the plaint, particularly the claim that the plaintiff was owner of 22 cents and was in possession of the suit property were denied. It was stated that S. No. 666/2, Bargur Village, originally measured a total area of 1.63 acres. The vendors of the plaintiff and their predecessors in title were entitled only to one half of the said 1.63 acres, namely, 81 1/2 cents. However, they had claimed to be in possession of 88 cents. The remaining portion of 75 cents was in the possession and enjoyment of the vendors of the defendant and their predecessors in title. The defendant purchased the said property by two sale deeds dated 12.06.1958 and 06.02.1961. It was stated that the vendors of the plaintiff had title only to 81 1/2 cents and consequently could not have conveyed 1.10 acres. 9. It was stated that it was improbable that the Government would have acquired 88 cents, leaving out 22 cents, since the Government had acquired further lands to the South of the lands acquired. It was also stated that the lands in S. No. 666/2 was also the subject matter of an earlier suit in O.S. No. 3 of 1919 on the file of the District Munsif Court, Krishnagiri. That suit had been filed by Chen-nappa Chetti who was then a minor against his father Rami Chetty for partition and separate possession of one half share. That suit had been filed by Chen-nappa Chetti who was then a minor against his father Rami Chetty for partition and separate possession of one half share. The vendors of the plaintiff and their predecessor in title Karathar Chennappa Chetty son of Mari Chetty also owned one half share in the lands in S. No. 666/2 and was also a party in the said suit. 10. It was stated that the predecessor in title of the vendors of the plaintiff could have title only to 81 1/2 cents. It was further stated that S. No. 666/2 measuring 1.63 acres was subdivided as S. No. 666/2A and S. No. 666/2B. The entire lands in S. No. 666/2B was claimed to be belonging to the defendant. The patta for S. No. 666/2B was Patta No. 444 and the patta for the lands in S. No. 666/2A was Patta No. 116. It was claimed that the defendant was the absolute owner of the entire sub-division in S. No. 666/2B. He had sold two cents to the Postal and Telegraph Department under registered sale deed dated 01.07.1977. They have also put up a construction. The revenue records also establish the title of the defendant to 75 cents including the suit property of 22 cents in S. No. 666/2B. 11. It was denied that the defendant owned lands only to the East of Kayam and Channel. It was also denied that the defendant attempted to trespass on 19.09.1982. It was specifically stated that the plaintiff trespassed into the suit property and put up a thatched shed and put up fence on all sides after obtaining an ex-parte order of injunction and had thus created evidence to lay a false claim. It was stated that the plaintiff had put up a hut in the suit property after the institution of the suit with intention to grab the land. It was further claimed that the suit should be dismissed. 12. The plaintiff then filed a reply statement. In the reply statement, the averments in the written statement were denied. New facts were given tracing the title of the suit property. However, explanation was not given as to why these facts were not pleaded in the plaint. It was further claimed that the suit should be dismissed. 12. The plaintiff then filed a reply statement. In the reply statement, the averments in the written statement were denied. New facts were given tracing the title of the suit property. However, explanation was not given as to why these facts were not pleaded in the plaint. It was claimed that Chennappa Chetty sold 1.09 acres in S. No. 666/2 describing it as situated West of the Kayam and Kayam channel to Subbu Chetty in the year 1921, who inturn sold the said 1.09 acres to Vadigi Chetty in 1925 again describing the lands as lying West of Kayam and Kayam channel. Vadigi Chetty and his son enjoyed the said 1.09 acres till 1935. The suit property, in a family partition was allotted to Alappa Chetty who sold it to his brother B.V. Thimmaraya Chetty in 1938 again describing it as lying to the West of the lands of the predecessor in title of the defendant. B.V. Thimmaraya Chetty then sold 1.10 acres to the plaintiff on 15.12.1953, mentioning the Eastern boundary as Kayam and Kayam channel. It was therefore claimed that the defendant has no manner of right over the suit property. It was also claimed that the defendant could not claim ownership to 75 cents as his vendors did not own the said extent of land in S. No. 666/2. It was stated that the land measuring 1.09 acres had been sold in 1921, even before the decree in O.S. No. 3 of 1919. It was claimed that it was false to state that the plaintiff had taken possession subsequent to the institution of the suit and on the strength of the ex-parte injunction. It was stated that the shed was already in existence for a long time and that the non mentioning of it in the schedule was a mistake. 13. On the basis of the above pleadings, the learned Sub Judge, Krishnagiri, framed the following issues for trial: 1. Whether the plaintiff is entitled for declaration of title with respect to the suit property? 2. Whether the plaintiff was in possession on the date of institution of the suit? 3. Whether the defendant was estopped from denying the title of the plaintiff? 4. Whether the plaintiff had prescribed title by adverse possession? 5. To what other reliefs? The following additional issue was also framed: 1. 2. Whether the plaintiff was in possession on the date of institution of the suit? 3. Whether the defendant was estopped from denying the title of the plaintiff? 4. Whether the plaintiff had prescribed title by adverse possession? 5. To what other reliefs? The following additional issue was also framed: 1. Whether the defendant had prescribed title by adverse possession? 14. During trial, B.T. Thimmi Chetty the husband of the plaintiff was examined as PW1 and another independent witness RE. Munusamy was examined as PW2. The plaintiff marked Exs. A1 to A17. Ex. A1 was the sale deed in favour of the plaintiff dated 25.11.1953. Ex. A2 was the sale deed in favour of Subbu Chetty dated 20.09.1921. Ex. A3 was the sale deed in favour of Vadigi Chetty dated 13.04.1925. Ex. A4 was the sale deed in favour of Thimmaraya Chetty dated 22.06.1938. Ex. A5 dated 03.09.1960 was the order of the Additional Collector, Hosur for survey of the lands. Ex. A6 was the sale deed in favour of the defendant dated 06.02.1961. Ex. A7 was the joint patta in S. No. 666/2 in the name of the plaintiff and the defendant. Ex. A10 was the copy of the judgment in O.S. No. 49 of 1983. Ex. A12 was the copy of the Advocate Commissioner's report and sketch in the said suit. Ex. A17 was the sale deed in favour of Vendi Chetti dated 17.02.1930. Exs. A8, A9, A15 and A16 were tax receipts. 15. On the side of the defendant, K.S. Krishna Chetty examined himself as DW1. The Advocate Commissioner S. Kasilingam was examined as DW2 and another witness P.C. Sathyanarayanan was examined as DW3. The defendant marked Exs. B1 to B31. Ex. B1 was the suit register extract in relation to O.S. No. 3 of 1919 on the file of the District Munsif Court, Krishnagiri. Ex. B2 was the sale deed in favour of the defendant dated 12.06.1958. Ex. B3 was the another sale deed in favour of the defendant dated 06.02.1961. Exs. B4 to B7 were the tax receipts for fasli 1378, 1376, 1390 and 1391. Exs. B8 and B9 were Adangal extracts for fasli 1379 to 1392 for S. No. 666/2 and for fasli 1392 to 1395 for S. No. 666/2B. Ex. B10 was the sale deed in favour of Chinnamma and Salamma dated 02.05.1927. Exs. Exs. B4 to B7 were the tax receipts for fasli 1378, 1376, 1390 and 1391. Exs. B8 and B9 were Adangal extracts for fasli 1379 to 1392 for S. No. 666/2 and for fasli 1392 to 1395 for S. No. 666/2B. Ex. B10 was the sale deed in favour of Chinnamma and Salamma dated 02.05.1927. Exs. B 11 to B20 were also tax receipts for fasli 1382, 1385 to 1388, 1390 to 1393 and 1372. Ex. B22 was the order of the Additional Collector for survey of lands in S. No. 666/2 A and 667/2. Ex. B27 was the copy of the judgment in O.S. No. 3 of 1919. 16. During trial, Exs. C1 to C4 being the reports and sketch of the Advocate Commissioner were also marked. 17. On the basis of the oral and documentary evidence, by judgment dated 12.05.1987, the learned Sub Judge, Krishnagiri, took up for consideration issue Nos. 1 and 2, namely, whether the plaintiff was entitled for declaration of title and for permanent injunction. It was observed that by Exs. B1 and B27 which related to O.S. No. 3 of 1919, Chennappa Chetty son of Rami Chetty took possession on 17.10.1930. It was further observed that in the said suit under Ex. B27 which was the order in the final decree in the said suit one half share of 1.63 acres had been allotted to Chennappa Chetty son of Mari Chetty. It was therefore observed that 81 1/2 cents alone could have been thus allotted. It was also observed that Chennappa Chetty was entitled to 31 1/2 cents. It was also observed that since the suit document were not filed in entirety, it cannot be stated with definiteness whether the suit related to 1.13 1/2 acres or 81 1/2 cents. It was also found that there was no receipt to reflect that possession was taken by the defendant in that suit. It was also found that Ex. B25 could not be related to B26. It was also found that by the plaint document, by Ex. A1 Subbu Chetty had purchased the lands measuring 1.09 acres on 20.09.1921. He had sold these lands to Vadiki Chetty on 13.04.1925 by Ex. A3. Vadiki Chetty had two sons, namely, Azhagappa Chetty and Thimmirayan Chetty. In a partition among them the 1.09 acres was allotted to Azhagappa Chetty. It was also found that by the plaint document, by Ex. A1 Subbu Chetty had purchased the lands measuring 1.09 acres on 20.09.1921. He had sold these lands to Vadiki Chetty on 13.04.1925 by Ex. A3. Vadiki Chetty had two sons, namely, Azhagappa Chetty and Thimmirayan Chetty. In a partition among them the 1.09 acres was allotted to Azhagappa Chetty. It was observed that the defendant had not denied this fact. Thereafter, Azhagappa Chetty had sold 1.09 acres to his brother Thimmirayan Chetty by sale deed dated 22.06.1938 marked as Ex. A4. The plaintiff had purchased 1.10 acres by sale deed dated 25.11.1953 from Thimmirayan Chetty by Ex. A1. It was therefore stated the title of the plaintiff had been established. The contentions of the defendant that Chennappa Chetty had only one half share in the suit survey number which meant that he had 81 1/2 cents alone and could not have conveyed a larger extent of land to the purchaser and consequently, the plaintiff could not have been conveyed more than 81 1/2 cents had been rejected. 18. The learned Sub Judge relied on Exs. A1 to A4 to hold that the plaintiff had established title to 1.09 acres. Reliance was also placed on Exs. C1 and C2, the sketch and report of the Advocate Commissioner. These documents showed that there was a Kayam Kuttai in the Northern-Western of corner of S. No. 666/2B and that there was also a channel running from West to South. Even though, the defendant denied the existence of Kayam, Kuttai and channel, the learned Sub Judge placed reliance on the report of the Advocate Commissioner to establish that there was a Kayam, Kuttai and channel. It was also observed that the Government had acquired 88 cents out of 1.63 acres in S. No. 666/2. The plaintiff claimed title to 22 cents. These lands were to the West of the Kayam and Kuttai. Reliance was placed by the learned Sub Judge on the evidence of PW2, Munusamy, to hold that plaintiff was in possession. 19. It was however, observed that both the plaintiff and defendant had produced revenue records to prove their respective possession. The Advocate Commissioner had however stated that on measurement the land was only 13 1/2 cents. Reliance was placed by the learned Sub Judge on the evidence of PW2, Munusamy, to hold that plaintiff was in possession. 19. It was however, observed that both the plaintiff and defendant had produced revenue records to prove their respective possession. The Advocate Commissioner had however stated that on measurement the land was only 13 1/2 cents. It was however held that, even though plaintiff claimed title and possession to 22 cents, the Advocate Commissioner, examined as DW2 had stated that actual area available was 13 1/2 cents that even otherwise since the plaintiff had given the four boundaries, the plaintiff was entitled for declaration of title and permanent injunction over of the lands, within the four boundaries has given in the plaint. Holding as above, the suit was decreed. A.S. No. 68 of 1987 (District Court, Dharma-puri at Krishnagiri):- 20. The defendant then filed the said first appeal. The plaintiff also filed a cross objection challenging the finding for issue No. 3 namely, whether the defendant was estopped from questioning the title of the plaintiff. By judgment dated 11.05.1994, the learned District Judge, framed the following points for consideration: 1. Whether it had been proved that the plaintiff was entitled for declaration of title for 22 cents or for whatever correct area and was also in possession of the same? 2. Whether the plaintiff had prescribed title by adverse possession? 3. Whether the defendant had established title or had established adverse possession? 4. Whether the defendant was estopped from questioning the title of the plaintiff? 5. Whether the judgment and decree of the Trial Court requires interference? 21. Along with the appeal, the defendant had also filed I.A. No. 570 of 1987 under Order 41 Rule 27 CPC. The defendant sought to produce documents of the years 1935, 1945 and 1959. The defendant also filed another application in I.A. No. 252 of 1990 under Order 41 Rule 27 to produce the order of the RDO, Krishnagiri, dated 13.03.1987, whereby the plaintiff Chinnapappammars name was removed as joint pattadar of the suit property. Yet another application in I.A. No. 28 of 1993 had been filed under Order 41 Rule 27 CPC seeking permission to produce chitta for fasli 1398. Yet another application in I.A. No. 28 of 1993 had been filed under Order 41 Rule 27 CPC seeking permission to produce chitta for fasli 1398. The plaintiff had filed I.A. No. 145 of 1992 under Order 41 Rule 27 CPC to produce the statements given by Venkatarama Chetty son of Govinda Chetty and Chinnaa Chetty son of Venkatappa Chetty. 22. By judgment dated, 11.05.1994, the learned District Judge observed that there was no dispute over the fact that the Government had acquired 88 cents of land in S. No. 666/2 in the year 1960. Further at that time, the S. No. 666/2 was sub-divided in S. No. 666/2A and the balance of 75 cents was surveyed. It was also found that the lands S. No. 666/2 measuring 1.63 acres was the subject matter of suit in O.S. No. 3 of 1919 regarding which Ex. B1, B26 and B27 had been produced. 23. In the said suit, the lands in S. No. 666/2 was shown as the eighth item in A-schedule. There was a compromise entered into in that suit. It was also found that the suit was filed for possession of 1/4th share of 1.63 acres. It was also observed that the five documents produced in I.A. No. 570 of 1987 were relevant to determine the issues and they were taken on record and marked as Exs. B28 to B32. It was stated that oral evidence was not required to prove the Exs. B28 to B30. It was also found that by Ex. B10, Ramichetty had sold to his daughters Chinnammal and Salam-mal, 40 cents in S. No. 666/2 by sale deed dated 02.05.1927. Subsequently, by Ex. B30, Chinnammal had sold the said land to Kulla Chetty by sale deed dated 18.06.1945. The said 29 cents was later sold by Kulla Chetty to his brother the defendant by Ex. B2 by sale deed dated 12.06.1958. 24. It was also observed that much confusion had been created over the description of the properties. It was also found that there was another document in Ex. B28 dated 10.11.1935 for the land measuring 41 cents in favour of Theerthagiri Chetty. It was also found that since in Ex. B28 there was no mentioning about Kayam and Kay am Vaaikal, there was further confusion over the identity of the property. It was also found that there was another document in Ex. B28 dated 10.11.1935 for the land measuring 41 cents in favour of Theerthagiri Chetty. It was also found that since in Ex. B28 there was no mentioning about Kayam and Kay am Vaaikal, there was further confusion over the identity of the property. The learned District Judge also allowed I.A. No. 252 of 1990 and marked the documents as Exs. B33 and B34. The learned District Judge also allowed I.A. No. 28 of 1993 and marked Ex. B35. The learned District Judge however dismissed I.A. No. 145 of 1992 filed by the plaintiff. It was also observed that even though the area of the land was not defined, since the boundaries had been given the identity of the land can be determined. It was also observed that under Exs. A10 and A11, the plaintiff had filed the suit against the Government in O.S. No. 49 of 1983 and had also obtained order of injunction with respect to 22 cents. The learned District Judge relied on Ex. A12 which was the report of the Commissioner in that particular suit. It was finally held that the plaintiff was entitled to either 22 cents or to area lesser than that. The cross objection was dismissed holding that the defendant was not estopped from questioning the title of the plaintiff. Finally the learned District Judge, accepted the findings of the Trial Courts and dismissed the appeal. S.A. No. 1074 of 1994:- 25. The defendant in O.S. No. 70 of 1982 is the appellant herein. He had suffered a decree in O.S. No. 70 of 1982 by judgment dated 12.05.1987 on the file of the Sub Court, Krishnagiri. The appeal which he filed in A.S. No. 68 of 1987 before the District Court, Dharmapuri at Krishnagiri was also dismissed by judgment dated 11.05.1994. 26. The Second Appeal had been admitted on the following two substantial questions of law: 1. The appeal which he filed in A.S. No. 68 of 1987 before the District Court, Dharmapuri at Krishnagiri was also dismissed by judgment dated 11.05.1994. 26. The Second Appeal had been admitted on the following two substantial questions of law: 1. Whether the Courts below erred in law in granting a decree in favour of the plaintiff in respect of the suit property in view of the fact that the predecessors in title of the plaintiff and the defendant were entitled to half share in 1.63 acres of land in S. No. 666/2 respectively and in view of the fact that the Government of Tamil Nadu had acquired the extent of 88 cents in S. No. 666/2? 2. Whether the courts below erred in law in placing the burden of proof with regard to the title of the property on the defendant, when it is for the plaintiff to establish the title to the suit property? 27. For the sake of convenience the parties would be referred as plaintiff and defendant. 28. The entire suit revolves around the lands in S. No. 666/2 in Bargur Village, Krishnagiri. The entire area in S. No. 666/2 measured 1.63 acres. The plaintiff claimed title to 1.10 acres. It had been further stated in the plaint that out of the said 1.10 acres, the Government had acquired 88 cents leaving behind 22 cents. This 22 cents was the suit property. In the plaint, the plaintiff had merely mentioned that she had purchased 1.10 acres by sale deed dated 25.11.1953 and was in possession. It was also stated that out of the said land, 88 cents had been acquired by the Government leaving behind 22 cents. It was further stated that the said 22 cents was to the South of the percolation pond called Kasam Kuttai and West of the Kasam and channel. It had been further stated that the defendant owned lands to the East of the said pond and channel. It was claimed that the defendant attempted to trespass in the suit property necessitating institution of the suit seeking declaration of title and permanent injunction. 29. In the written statement, the defendant had denied all the averments. On the other hand the defendant also stated that the vendors of the plaintiff could not have conveyed 1.10 acres since they had title only to 81 1/2 cents. 29. In the written statement, the defendant had denied all the averments. On the other hand the defendant also stated that the vendors of the plaintiff could not have conveyed 1.10 acres since they had title only to 81 1/2 cents. It was claimed that there was an earlier suit in O.S. No. 3 of 1919 on the file of the District Munsif Court, Krishnagiri, which was a suit for partition filed by Chennappa Chetty who was a minor against his father Rami Chetty. The relief sought was for partition and separate possession of one half share. Consequently, the entire lands in S. No. 666/2 which measured 1.63 acres had been divided into two equal halves of 81 1/2 cents each. The plaintiff claimed title through Karathar Chennappa Chetty son of Mari Chetty who was also a party in the said suit. These facts have not been denied by the plaintiff and have also been found as facts relevant and established by both the Trial Court and First Appellate Court. 30. It is also to be mentioned that there had been sub-division of S. No. 666/2 into S. No. 666/2A and S. No. 666/2B. The defendant claimed possession and title over the S. No. 666/2B. One peculiar aspect to be pointed out in the judgment of the Trial Court is that, even though the plaintiff claimed 22 cents, the Advocate Commissioner who was examined as PW2, stated that the lands within the four boundaries mentioned in the plaint actually measured only 13 1/2 cents. 31. A disturbing factor in the judgment under appeal rendered by the First Appellate Court is that Interlocutory Applications filed under Order 41 Rule 27 have been allowed, but further recourse to Order 41 Rule 27 CPC which mandatorily required evidence to be let in over the documents to prove its admissibility and proof had not been undertaken. This step was not taken but, on the other hand the documents were marked on the side of the defendant. No opportunity had been granted to test the admissibility and proof of the documents. I hold that, the entire procedure adopted is flawed. 32. In the judgment, very surprisingly, the Trial Court, after stating the evidence on record, proceeded to render a findings on presumptions. No opportunity had been granted to test the admissibility and proof of the documents. I hold that, the entire procedure adopted is flawed. 32. In the judgment, very surprisingly, the Trial Court, after stating the evidence on record, proceeded to render a findings on presumptions. In paragraph 9 of the judgment, the learned Sub Judge, Krishnagiri, whose judgment have been affirmed by the District Court, Krishnagiri, had observed as follows: Any Other Language The above clearly shows that the learned Sub Judge had stated that it was not clear whether the predecessors in title of the plaintiff were entitled to 81 1/2 cents or 1.09 acres. However, he had held that the predecessors were actually entitled to 1.09 acres since Exs. A1 to A4 conveyed 1.09 acres. That premise cannot be accepted since originally in O.S. No. 3 of 1919 the entire lands had been partitioned into two equal halves of 81 1/2 cents each. 33. The learned Sub Judge, further justified grant of declaration of title to the plaintiff by stating in paragraph 25 as follows: Any Other Language It is seen that the learned Sub Judge had proceeded on assumption that possession would follow title, without examining the evidence on that fact. Adangal is a material document. The plaintiff had not produced it. 34. The learned Sub Judge had further erred on the finding on facts when he held that even the plaintiff's predecessors could have title for 1.10 acres or 81 1/2 cents, but since the four boundaries have been mentioned, the plaintiff is entitled for declaration of title. It had been observed in paragraph 27 as follows: Any Other Language 35. The learned Sub Judge, further emphasised that the plaintiff had prescribed title by adverse possession in paragraph 27, he concluded as follows: Any Other Language The plaintiff in a suit cannot seek declaration of title based on adverse possession. Adverse possession can only be taken as a defence in a suit seeking declaration of title. It was very strange the relief sought by the plaintiff was also granted on the ground of adverse possession. 36. There was a confusion over the area of the suit property, whether it actually measured 22 cents, since the Advocate Commissioner during his evidence as PW2 asserted that the suit lands measured only 13 1/2 cents. It was very strange the relief sought by the plaintiff was also granted on the ground of adverse possession. 36. There was a confusion over the area of the suit property, whether it actually measured 22 cents, since the Advocate Commissioner during his evidence as PW2 asserted that the suit lands measured only 13 1/2 cents. However, this was brushed aside by the learned Sub Judge in paragraph 29 of the judgment, wherein he had observed as follows: Any Other Language It is clear from the above passage that though the learned Sub Judge had accepted that actual area available was only 13 1/2 cents, but still held that declaration could be granted for 22 cents, since the four boundaries had been given in the plaint. The plaintiff cannot be granted relief for a larger area of land than actually available. 37. The learned District Judge, Krishnagiri, was also reconciled to the fact that there was confusion over the area available. In his judgment at paragraph 36, he had observed as follows: Any Other Language 38. The learned District Judge had further stated that, it was difficult to actually identify the lands and whether it was having the same physical features. In paragraph 37 of his judgment. He had stated as follows: Any Other Language 39. A reading of both the judgments show that very unfortunately, both the learned Sub Judge, Krishnagiri, and the District Judge, Krishnagiri, have arrived on conclusions based on presumptions and assumptions. They have simply brushed aside the fact that in reality, only 13 1/2 cents was available within the four boundaries mentioned in the schedule of the property in the plaint. It is a mystery how declaration of title could have been granted to a larger extent of 22 cents. 40. The first substantial question of law related to the area of land to which the plaintiff can seek title. As stated repeatedly above, the total area available in S. No. 666/2 was 1.63 acres. This had been the subject matter of the partition and division into two equal half in O.S. No. 3 of 1919. This meant that the entire area was divided into two equal halves of 81 1/2 cents each. As stated repeatedly above, the total area available in S. No. 666/2 was 1.63 acres. This had been the subject matter of the partition and division into two equal half in O.S. No. 3 of 1919. This meant that the entire area was divided into two equal halves of 81 1/2 cents each. It is the claim of the plaintiff that sale deeds have been effected before the final decree was passed in O.S. No. 3 of 1919 dividing the lands into two equal halves of 81 1/2 cents each. 41. That contention has to be rejected since that sale deeds would only be lis-pendens. Consequently, no right or title can flow from those sale deeds. A Court of law had partitioned 1.63 acres into two equal halves each measuring 81 1/2 cents. The Government had acquired 88 cents. Consequently, the only land available in S. No. 666/2 was to an extent of 75 cents. In this connection, in the report of the Advocate Commissioner who was examined as PW2 it was stated that 13 1/2 cents alone was available, assumes significance. The plaintiff cannot therefore granted be title for 22 cents when on the ground, 13 1/2 cents alone was available. Even for this area, the defendant has produced documents including patta, adangal and chitta. These documents reflect to a large extent, possession and recognition of possession by the Revenue Authorities. 42. Apart from all the above, the additional documents have been freely marked by the First Appellate Court without resorting to the procedure contemplated under Order 41 Rule 28 CPC. The plaintiff, in the plaint had not given any details. However, by way of reply statement, the plaintiff had built up her case. It is impermissible on the part of the plaintiff to built her case in reply statement. The plaintiff has to establish her case in her plaint. The facts pleaded in the reply statement are facts already known to the plaintiff. No explanation had given as to why they had not been pleaded in the plaint. At any rate, the plaintiff has to establish with definiteness not only the area for which she seeks declaration of title but also the boundaries. In this case, the plaintiff had not established the actual area for which she seeks declaration of title. No explanation had given as to why they had not been pleaded in the plaint. At any rate, the plaintiff has to establish with definiteness not only the area for which she seeks declaration of title but also the boundaries. In this case, the plaintiff had not established the actual area for which she seeks declaration of title. A court cannot presume that for all the lands within the four boundaries, declaration of title can be granted to the plaintiff. 43. I hold the Courts below had erred in granting a decree particularly when the predecessors in title of the plaintiff and defendant were entitled to equal one half share alone in the 1.63 acres of land in S. No. 666/2, Bargur Village. In the plaint, the plaintiff had claimed title to 1.10 acres. This had been conveyed to her predecessors in title, pending O.S. No. 3 of 1919 which was a suit for partition and in which final decree was passed, dividing the entire S. No. 666/2 into two equal half as 81 1/2 cents each. Consequently, the Court below could not have granted title to the plaintiff for the suit property measuring 22 cents which was part of the larger extent of 1.10 acres. I further hold that the predecessor of plaintiff in title could not claim right to more than 81 1/2 cents. It is significant to note that the plaintiff has not produced the Section 4(1) Notification under the Land Acquisition Act. The plaintiff has to establish her case. It has not been established how she could be granted declaration of title to 22 cents, when she was in possession of only 13 1/2 cents. The question of law is answered against the plaintiff. 44. The second substantial question of law was with respect to the shifting the burden of proof on the defendant to prove title. The plaintiff has to establish title. The documents which the plaintiff relied are on lis-pendens of O.S. No. 3 of 1919, District Munsif court, Krishnagiri. Those documents related to a larger extent. The vendor could not have conveyed a larger extent than 81 1/2 cents. In a suit for declaration of title, it is for the plaintiff to establish title. The plaintiff has to establish title. The documents which the plaintiff relied are on lis-pendens of O.S. No. 3 of 1919, District Munsif court, Krishnagiri. Those documents related to a larger extent. The vendor could not have conveyed a larger extent than 81 1/2 cents. In a suit for declaration of title, it is for the plaintiff to establish title. Merely because, the defendant's title is negatived or a cloud of suspicion is created over the claim of the defendants, it cannot automatically follow that the plaintiff has established his title. In this case that has been the approach of both the Courts below. They should have consciously examined the facts to determine the manner in which the plaintiff can claim title for 1.10 acres when her predecessors in title could convey only 81 1/2 cents. I hold that the plaint has to fail and it was wrong on the part of the Courts below to shift the burden of proof to prove title on the defendant. This question is also answered against the plaintiff. 45. In the result, I hold that the Second Appeal filed by the defendant has to be allowed and consequently, the Second Appeal is allowed with costs. The judgment and decree in A.S. No. 68 of 1987 dated 11.05.1994 on the file of the District Court, Dharmapuri at Krishnagiri, is set aside. The judgment and decree in O.S. No. 70 of 1982 dated 12.05.1987 on the file of the Sub Court, Krishnagiri, is set aside.