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2020 DIGILAW 803 (MAD)

T. Paneerselvan v. M. Natesa Mudaliar

2020-05-22

R.SUBRAMANIAN

body2020
JUDGMENT : R. SUBRAMANIAN, J. Prayer: Second Appeal filed under Section 100 of the Civil Procedure Code against the Judgment and Decree of the learned II Additional Sub Judge, Cuddalore made in A.S. No. 9 of 2015 dated 07.09.2015 confirming the judgment and decree of the learned Principal District Munsif, Cuddalore made in O.S. No. 233 of 2012 dated 11.11.2014. 1. The second Appeal is at the instance of the defendant in O.S. No. 223 of 2012. The said suit was laid by the plaintiff seeking a declaration of his title to the suit property measuring about 86½ cents in Survey No. 1928/1C of Karaiyeravittakuppam Village, Cuddalore Taluk and for a consequential injunction restraining the defendant from interfering with the plaintiff's possession of the same. 2. The case of the plaintiff in brief is as follows: The plaintiff and his father constituted a joint family. The said joint family owned properties in Karaiyeravittakuppam Village, Cuddalore Taluk in Survey No. 1927/1, 1928/1 and 1928/4. As per the village records, the total extent of the properties is as follows: T.S. No. 1927/1 - 78 cents T.S. No. 1928/1 - 2 acres and 71 cents T.S. No. 1928/4 - 1 acre and 22 cents However, on ground the land in Survey No. 1927/1 measured 84 cents. Even during the minority of the plaintiff, the plaintiff’s father for himself and as the guardian of the minor plaintiff sold the entire extent of land in Survey Nos. 1927/1 and 1928/4 to Thangavel Mudaliar, father of the defendant, under a registered Sale-Deed dated 05.12.1956. On the death of Thangavel Mudaliar, the defendant succeeded to those two items and he sold them to one Paneerselvam under a registered Sale-Deed dated 28.03.2012. It is also averred that the said Paneerselvam sold the said property measuring about 2 acres to R. Kumar under a Sale-Deed dated 02.04.2012. Thus, according to the plaintiff, the purchaser R. Kumar became the owner of 2 acres of land in Survey No. 1927/1, 1928/4 and there is no dispute regarding the said items. 3. The plaintiff would further claim that the suit property viz. the property situate in Survey No. 1928/1, as per the Revenue Records measured 2 acres 71 cents, out of which, 11 cents of land in South Western corner belonged to a third party, which is now been sub divided as 1928/1B. 3. The plaintiff would further claim that the suit property viz. the property situate in Survey No. 1928/1, as per the Revenue Records measured 2 acres 71 cents, out of which, 11 cents of land in South Western corner belonged to a third party, which is now been sub divided as 1928/1B. Thus, the family of the plaintiff owned 2 acres 60 cents in Survey No. 1928/1. According to the plaintiff, under the Sale-Deed dated 05.12.1956, the plaintiff’s father had sold only a portion measuring 1 acre 73½ cents, out of 2 acres 60 cents in Survey No. 1928/1 to the father of the defendant Thangavel Mudaliar, while drafting the said Sale-Deed the boundaries of the entire extent of the property was mistakenly shown. Even though the total extent of all the three Survey Numbers was given in the said Sale-Deed, according to the plaintiff, his father had sold only northern 3 acres and 73½ cents retaining the remaining 86½ cents on the south with him. Therefore, according to the plaintiff, the defendant is entitled to only 1 acre 73½ cents in Survey No. 1928/1 and the plaintiff is entitled to southern 86½ cents which has now been sub divided as Survey No. 1928/1C. According to the plaintiff, he is in possession of said property continuously and the defendant being a successor of the purchaser under the Sale-Deed dated 05.12.1956 is estopped from questioning the plaintiff’s title. Claiming that the defendant attempted to interfere with the plaintiff possession on 31.07.2012, the plaintiff came forward with the above suits seeking the reliefs as stated above. 4. The suit was resisted by the defendant contending that the plaintiff’s father Thangavel Mudaliar purchased the properties under a Sale-Deed dated 24.01.1949 and he sold the entire properties purchased by him, under the Sale-Deed dated 24.01.1949 (marked as Ex.B1) to the defendant’s father under the Sale-Deed dated 05.12.1956 (marked as Ex.A1). According to the defendant, the claim of the plaintiff that his father had retained 86½ cents in Survey No. 1928/1 from and out of the lands purchased by him under the Sale-Deed dated 24.01.1949 is false to the knowledge of the plaintiff. According to the defendant, the claim of the plaintiff that his father had retained 86½ cents in Survey No. 1928/1 from and out of the lands purchased by him under the Sale-Deed dated 24.01.1949 is false to the knowledge of the plaintiff. According to the defendant, the entire extent of 4 acres 59¾ cents was sold to the defendant’s father by the plaintiff’s father and the defendant’s father was in possession of the entire extent by mutating the Revenue Records and the Patta has also been granted to him in Patta Nos. 58, 59, and 60, as early as on 31.03.1971 by the Settlement Officer, Thanjavur. Therefore, according to the defendant, the plaintiff is not entitled to any land in Survey No. 1928/1. It is also claimed that Thangavel Mudaliar had executed a Will on 12.06.1980 bequeathing the properties to the defendant and the defendant has been in possession of the property as per the said Will. After the sale of 2 acres of land by the defendant in Survey No. 1927/1 and 1928/4 in favour of Paneerselvam on 28.03.2012, the defendant is in possession of the remaining extent. The defendant would also contend that the plaintiff is trying to take advantage of the wrong description made in the Sale-Deeds dated 24.01.1949 and 05.12.1956, after the lapse of nearly more than 60 years. 5. At trial, the plaintiff was examined as PW-1 and Exhibits A1 to A5 were marked on the side of the plaintiff. The defendant was examined as DW-1 and one Dhandapani was examined as DW-2 and Exhibits B1 to B8 were marked on the side of the defendant. 6. The Trial Court on an appreciation of evidence on record relied upon certain alleged admissions made during cross-examination of DW-1 to conclude that the plaintiff’s father had retained 86½ cents out of the land purchased by him under Ex.B1, while executing the Sale-Deed dated 05.12.1956. The Trial Court also rejected the claim of the defendant that boundaries will prevail over the measurement, when there is a dispute regarding the correctness of the measurement. The Trial Court concluded that under Ex.A1 dated 05.12.1956, the defendant’s father had purchased only an extent of 3 acres and 73½ cents and therefore he cannot claim anything more than what he has actually purchased. 7. The Trial Court concluded that under Ex.A1 dated 05.12.1956, the defendant’s father had purchased only an extent of 3 acres and 73½ cents and therefore he cannot claim anything more than what he has actually purchased. 7. The Trial Court also found that the Sale-Deed dated 05.12.1956 conveys only an extent of 3 acres 73½ cents to the defendant’s father. The Trial Court relied upon Section 92 of the Evidence Act, to reject the claim of the defendant that the plaintiff’s father had sold the entire extent of 4 acres 60 cents under Ex.A1 Sale-Deed. Though the plaintiff did not produce any document to establish his possession of the property, the Trial Court, as I already pointed out, relied upon certain admissions said to have been made in the cross-examination by DW-1, to the effect that, if the Court finds the plaintiff is entitled to 86½ cents, he has no objection in granting a decree in favour of the plaintiff, to conclude that the plaintiff is in possession of 86½ cents of land which is shown as the suit property. On the above conclusions, the learned Trial Judge decreed the suit. Aggrieved the defendant preferred an appeal in A.S. No. 9 of 2015. 8. Pending Appeal, the appellant/defendant also filed two applications in I.A. No. 10 of 2015 for interlocutory order of injunction and I.A. No. 120 of 2015 seeking leave to produce certain documents. The Lower Appellate Court upon a re-examination of evidence on record almost concurred with the findings of the Trial Court. The application for reception of additional evidence was also dismissed by the Lower Appellate Court. The Lower Appellate Court also relied upon the so called admissions made by the defendant during his examination as DW-1. The Lower Appellate Court also concluded that the mutation of the Revenue records would not amount to transfer of title. The Lower Appellate Court also found that the plaintiff has not established the title to the extent of 86½ cents of land, but it however directed the Inspector General of Registration to register the decree granted by the Trial Court, so as to confirm the plaintiff's title. On the above conclusions, the Lower Appellate Court dismissed the Appeal confirming the judgment and decree of the Trial Court. 9. Aggrieved the defendant has come up with this Second Appeal. 10. On the above conclusions, the Lower Appellate Court dismissed the Appeal confirming the judgment and decree of the Trial Court. 9. Aggrieved the defendant has come up with this Second Appeal. 10. The following questions of law were framed at the time of admission: (a) Having found that the plaintiff has no title to the suit property, is the lower Appellate Court correct in law in sustaining the judgment and decree of the Trial Court? (b) Whether the direction of the first Appellate Court directing the plaintiff to register the decree of the Trial Court to confirm his title as per the Circular No. 56710/C2/01 dated 26.10.2002 of the office of the Inspector General of Registration, Chennai 28 is sustainable in law? (c) Whether the Courts below are correct in law to come to a conclusion that the plaintiff is in possession, when plaintiff himself failed to produce any documentary evidence to prove his possession? (d) Whether the Courts below are correct in law in holding that the plaintiff is in possession of the suit property, even after PW-1 categorically admits in his evidence that defendant's father and defendant's family members are in possession of the suit property? (e) Have not the Courts below committed a grave error in law in granting a decree to the plaintiff, who has failed to prove his title and possession solely by picking up loop whole in the evidence of the defendant? 11. I have heard Mr. K.A. Vimalkumar, learned counsel appearing for the appellant and Mr. R. Gururaj, learned counsel appearing for the respondent. 12. Mr. K.A. Vimalkumar, learned counsel appearing for the appellant, while elaborating on the questions of law would contend that having held that the plaintiff has not established his title, the lower Appellate Court was not right in granting a decree for declaration of title and directing the decree to be registered thereby creating a title in respect of 86½ cents of land in Survey No. 1928/1C, which has been shown as the suit property. He would also further contend that once the plaintiff had not produced any documents or evidence to prove that he or his father was in possession of the property after alienation made under Ex.A1 dated 05.12.1956, the Courts below were not right in concluding that the plaintiff is in possession by misreading the evidence of DW-1. 13. He would also further contend that once the plaintiff had not produced any documents or evidence to prove that he or his father was in possession of the property after alienation made under Ex.A1 dated 05.12.1956, the Courts below were not right in concluding that the plaintiff is in possession by misreading the evidence of DW-1. 13. The learned counsel would also draw my attention to the evidence of the plaintiff as PW-1, wherein, he has specifically admitted the possession of the defendant and his family over the suit property. Taking me through the recitals in the description of property in Ex.A1 and Ex.B1, Mr. K.A. Vimalkumar would contend that the very description of property in those two documents would show that the plaintiff’s father has parted with whatever land he purchased under Ex.B1 in favour of the defendant’s father under Ex.A1 and there remained nothing in the hands of the plaintiff’s father after the sale under Ex.A1. The plaintiff has come up with the suit only to take advantage of the wrong description of property in both the documents, viz. Exs.A1 and B1. Mr. K. Vimalkumar would also rely upon Section 92 of the Evidence Act to contend that the plaintiff being a descendant of the executant of Ex.A1 cannot lead evidence against the contents of the said document and contend that his father had retained certain property with himself. 14. Contending contra Mr. R. Gururaj, learned counsel appearing for the respondent would submit that the plaintiff is not relying upon Ex.A1 to prove his title. According to him, a mistake has krept in, in the description of property in Ex.A1, which he has established by letting in enough evidence in the present suit. The learned counsel would also contend that the defendant, as DW-1, has admitted the plaintiff's possession of the property. Therefore, the Courts below were right in concluding that the plaintiff is entitled to the suit property. 15. I have considered the rival submissions. 16. The entire dispute relates to the description of property as found in Ex.A1 and Ex.B1. Ex.B1 is a Sale-Deed dated 24.01.1949 under which the plaintiff’s father had purchased the property. The description of property in Ex.B1 reads as follows: “TAMIL” 17. As per the description of property in Ex.B1, the total extent that is sold is converted into acres and cents works out to 4 acres and 59 cents. Ex.B1 is a Sale-Deed dated 24.01.1949 under which the plaintiff’s father had purchased the property. The description of property in Ex.B1 reads as follows: “TAMIL” 17. As per the description of property in Ex.B1, the total extent that is sold is converted into acres and cents works out to 4 acres and 59 cents. Admittedly, the plaintiff’s father has sold the property purchased by him under Ex.B1 to the defendant’s father on 05.12.1956 under Ex.A1. The description of property under Ex.A1 reads as follows: “TAMIL” 18. A reading of the description of property in both the Sale-Deeds would clearly show that what has been purchased under Ex.B1 on 24.01.1949 has been sold under Ex.A1 dated 05.12.1956. Of course, the description shows that out of 7 acres 47 cents in old Survey No. 63 Velyayuda Mudaliar was entitled to 3 acres 73½ cents, but while giving the extent of the new Survey numbers, it is very clearly stated that Survey Nos. 1927/1, 1928/1 and 1928/4 measure 4 acres 60 cents. There is no difference in the extent of property purchased under Ex.B1 and the extent of property sold under Ex.A1. Unfortunately, both the Courts below have overlooked this very vital aspect of the case. Both the Trial Court as well as the Lower Appellate Court have proceeded on the assumption that what has been sold under Ex.A1 is only 3 acres 73½ cents totally overlooking the extent of the property. The so called admission in the evidence of DW-1 which has been heavily relied upon by the Courts below is neither here nor there. All that the witnesses stated is that if I am found to be in possession and enjoyment of something more than what my father had purchased under Ex.A1, I have no objection for a decree being granted in favour of the plaintiff. This is very clear from the following evidence which has been extracted by the Lower Appellate Court: “TAMIL” 19. As rightly pointed out by Mr. K.A. Vimalkumar, learned counsel for the appellant, the evidence of PW-1 has been totally lost sight of the Courts below. It is the plaintiff who seeks a declaration and injunction, it is for him to prove his title. PW-1 in his Cross-examination has deposed as follows: “TAMIL” He would further admit in his evidence is as follows: “TAMIL” 20. K.A. Vimalkumar, learned counsel for the appellant, the evidence of PW-1 has been totally lost sight of the Courts below. It is the plaintiff who seeks a declaration and injunction, it is for him to prove his title. PW-1 in his Cross-examination has deposed as follows: “TAMIL” He would further admit in his evidence is as follows: “TAMIL” 20. Heavily relying upon the said oral evidence and the fact that the plaintiff had not taken any steps for rectification of the Revenue Records till the date of the filing of the suit, the learned counsel for the appellant would contend that both the Courts below have greviously erred in not adverting to the description of property as found in the two vital documents, viz. Exs.A1 and B1 and such omission rendered the findings of the Courts below perverse. 21. Adverting to the arguments of the learned counsel for the appellant under Section 92 of the Evidence Act, Mr. R. Gururaj, would contend that Section 92 of the Evidence Act could not be put against the plaintiff, inasmuch as, the plaintiff is not relying upon the document to prove his title. He would also draw my attention to the judgment of the Hon’ble Supreme Court in Gangabai vs. Chhabubai, AIR 1982 SCC 20 , wherein, the Hon’ble Supreme Court had held that Section 92 will not be attracted when it is the plea of the party that the transaction was not intended to be acted upon between the parties. 22. The learned counsel for the respondent would also rely upon the judgment of the Hon’ble Supreme Court in Uttam Singh Duggal and Co. Ltd. vs. United Bank of India, (2007) 7 SCC 120 , in support of his contention that once the defendant admits the title of the plaintiff, it is not necessary for the plaintiff to produce any further proof of his title. Reliance was also placed on the judgment of the learned Single Judge of this Court in Dina Malar Publications vs. The Tiruchirapalli Municipality, (1984) 2 MLJ 306 , in support of the principle that the boundaries would prevail over the extent of the property. Reliance was also placed on the judgment of the learned Single Judge of this Court in Dina Malar Publications vs. The Tiruchirapalli Municipality, (1984) 2 MLJ 306 , in support of the principle that the boundaries would prevail over the extent of the property. The learned counsel would also draw my attention to the judgment of the Hon’ble Supreme Court Sebastiao Luis Fernandes vs. K.V.P. Shastri, (2013) 15 SCC 161 to contend that sitting in Second Appeal this Court cannot interfere with the concurrent findings of fact recorded by the Courts below. 23. I have considered the rival submissions. 24. It is the plaintiff/respondent, who seeks a declaration of his title to the suit property and his case is based mainly on Ex.A1 Sale-Deed. According to him, while his father purchased a larger extent under Ex.B1 dated 24.01.1949, he sold only a lesser extent under Ex.A1 dated 05.12.1956 and therefore, he had retained the suit property for himself while executing Ex.A1 Sale-Deed dated 05.12.1956. Unless, the plaintiff proves the said plea made by him with acceptable evidence and in accordance with law, he would not be entitled to a decree of declaration and permanent injunction. 25. The description of property in both the documents have already been extracted. A perusal of the same would very clearly show that the subject matter of Ex.A1 Sale-Deed dated 05.12.1956 is the same as the subject matter of Ex.B1 Sale-Deed dated 24.01.1949. The extent of property and the description tallies word by word. This coupled with evidence of PW-1 where he deposed that there is nothing in Ex.A1 to show that the plaintiff’s father had retained some property in Survey No. 1928/1 would demolish the plea of the plaintiff that his father had retained 86½ cents while selling the property purchased by him under Ex.B1. There seems to have been a difference in the extent of property between the Revenue records and the actual extent available on ground and the same is recorded in both the Sale-Deeds. Therefore, the plaintiff cannot be heard to contend that his father had retained something out of the property purchased by him under Ex.B1 while selling under Ex.A1. 26. No doubt Mr. R. Gururaj, learned counsel would vehemently contend that being concurrent findings of the fact, I cannot interfere with the findings of the Courts below. Therefore, the plaintiff cannot be heard to contend that his father had retained something out of the property purchased by him under Ex.B1 while selling under Ex.A1. 26. No doubt Mr. R. Gururaj, learned counsel would vehemently contend that being concurrent findings of the fact, I cannot interfere with the findings of the Courts below. I do not think that the Second Appellate Court is absolutely barred from interfering with the concurrent findings of the fact recorded by the Courts below. In fact, Section 103 of the Code of Civil Procedure enables the Second Appellate Court to determine a question of fact which has not been determined by the Courts below or which has been wrongly determined by the Courts below by reason of a decision on such question of law as referred to under Section 100 of the Code of Civil Procedure. 27. In Hero Vinoth vs. Seshammal, (2006) 5 SCC 545 , the Hon’ble Supreme Court has pointed out that the scope term substantial question of law. The Hon’ble Supreme Court has held that the term substantial question of law would include interpretation of the document by the Courts below. On a perusal of Ex.A1 and Ex.B1, I am satisfied that the Courts below have not even adverted to the basic principles of law relating to interpretation of documents. I can say, without fear contradiction, that both the Courts below have not even adverted to the description of property found in both the documents. 28. The extracted description of property, supra, would show that the description of property is the same in both the documents except for a difference in a few words. The extent of property is exactly the same. A reading of those two documents together leaves no doubt in my mind that the plaintiff’s father has conveyed whatever he has purchased under Ex.B1 dated 24.01.1949 under Ex.A1 dated 05.12.1956 to the defendant’s father. This coupled to the fact that the Revenue Records have been mutated in favour of the defendant’s father, as early as in 1971, would show that the parties had reconciled with the fact that whatever was purchased under Ex.B1 was sold under Ex.A1. 29. Almost after 56 years, after the execution of Ex.A1 Sale-Deed, the plaintiff has come up with the present suit which in my opinion is only a speculative venture. 29. Almost after 56 years, after the execution of Ex.A1 Sale-Deed, the plaintiff has come up with the present suit which in my opinion is only a speculative venture. The very fact that PW-1 in his evidence has admitted that he had knowledge of mutation of the Revenue records in favour of the defendant’s father and he had not challenged the same would show that this suit is the speculative suit, ventured upon by the plaintiff to defeat the right of the defendants. Unfortunately, the Courts below have become victims to such speculation. 30. The Lower Appellate Court had in fact recorded a finding that the plaintiff has not proved his title to the extent of 86½ cents. It would, however, direct registration of the decree passed by the Trial Court, in order to confer title on the plaintiff, this action of the Lower Appellate Court is unknown to law. The Court cannot by its act invest title in a person who seeks a declaration of his title. 31. Mr. R. Gururaj, would contend that Section 92 cannot bar him from letting in evidence to show that what was conveyed under Ex.A1 was a lesser extent than what is reflected in the document. In support of his said contention, he would rely upon the judgment of the Hon’ble Supreme Court in Gangabai’s case, referred to supra. I am afraid the said judgment is of no help to him. In para-11 of the said judgment, the Hon’ble Supreme Court had observed as follows: “11........It is clear to us that the bar imposed by sub-section (1) of s. 92 applies only when a party seeks to rely upon the document embodying the terms of the transaction. In that event, the law declares that the nature and intent of the transaction must be gathered from the terms of the document itself and no evidence of any oral agreement or statement can be admitted as between the parties to such document for the purpose of contradicting or modifying its terms. The sub- section is not attracted when the case of a party is that the transaction recorded in the document was never intended to be acted upon at all between the parties and that the document is a sham. The sub- section is not attracted when the case of a party is that the transaction recorded in the document was never intended to be acted upon at all between the parties and that the document is a sham. Such a question arises when the party asserts that there was a different transaction altogether and what is recorded in the document was intended to be of no consequence whatever. For that purpose oral evidence is admissible to show that the document executed was never intended to operate as an agreement but that some other agreement altogether not recorded in the document, was entered into between the parties.” 32. In fact the law laid down by the Hon’ble Supreme Court militates against the arguments of the learned counsel for the respondent. The Hon’ble Supreme Court has made it very clear that a party to an instrument is debarred from projecting a case against the recitals in the document, unless he wants to plead that it is a mistake or that the document itself was not intended to be acted upon. I am therefore unable to accept the said contention of the learned counsel for the respondent. 33. On the contention of Mr. R. Gururaj, that the defendant has admitted the title of the plaintiff, I have already extracted the so called admissions in the evidence of DW-1, I am unable to see anything in the evidence to show that the defendant had admitted the title of the plaintiff to the suit property. All that he had said is, if the plaintiff is able to prove his title for the suit property, he has no objection in the Court granting a decree in favour of the plaintiff. As I have already pointed out the plaintiff has miserably failed to prove either his title or possession of the suit property. I find that the both the Courts below have miserably failed to advert to the two important documents, viz. Exs.A1 and B1. They have also failed to look into the evidence of PW-1, wherein PW-1 has specifically admitted that his father did not retain any property in the Village, after the sale under Ex.A1 dated 05.12.1956. The very fact that the Courts below have overlooked the said evidence renders their findings perverse. 34. In view of the above, the question of law No. (a) is answered in favour of the appellant. 35. The very fact that the Courts below have overlooked the said evidence renders their findings perverse. 34. In view of the above, the question of law No. (a) is answered in favour of the appellant. 35. As already pointed out that the Lower Appellate Court though has found that the plaintiff has no title to 86½ cents of land in Survey No. 1928/1, it has directed the plaintiff to register the decree to confer title on him. This in my considered opinion is beyond the scope of the suit. Once the plaintiff seeks a decree for declaration of his title, it is for the Court to see that he has proved his title or not, the court cannot go one step further and direct registration of the decree so as to confer title on the plaintiff. Hence the question of law No. (b) is also answered in favour of the appellant. 36. In fact the Trial Court as well as the Appellate Court have found that the plaintiff has not produced any documents to proved his possession, they would again rely upon the evidence of the defendant as DW-1 to conclude that the plaintiff has proved his possession. Admittedly, the suit has been filed 56 years after execution of Ex.A1, the Revenue records have been mutated in the name of the defendant’s father even in the year 1971, no steps have been taken by the plaintiff for having them altered or corrected. This has been admitted by the plaintiff in his evidence. This being so, the Courts below were not right in concluding that the plaintiff has proved his possession based on a wholly wrong interpretation of the evidence of DW-1. Hence the question of law No. (c) is answered in favour of the plaintiff. 37. As regards the question of law No. (d) also the Courts below were not right in concluding that the plaintiff is in possession of the property and the extracted portion of evidence of PW-1 would very clearly show that the PW-1 has admitted the possession of the defendant and his family over the suit property. 38. This leaves as with the question of law No. (e). As I already pointed out both the Courts below have not adverted to the oral and documentary evidence in a right perspective. They have not even read the description of property in Exs.A1 and B1 properly. 38. This leaves as with the question of law No. (e). As I already pointed out both the Courts below have not adverted to the oral and documentary evidence in a right perspective. They have not even read the description of property in Exs.A1 and B1 properly. Even in the appreciation of oral evidence there has been a total callousness on the part of the Courts below. There is no discussion of the evidence of the plaintiff, per contra the Courts below have relied upon the so called admissions found in the evidence of the defendant to grant a decree in favour of the plaintiff. This in my considered opinion is again against the law declared by this Court and the Hon’ble Supreme Court. The plaintiff cannot seek a decree on the basis of the weakness of the defence. Law to the effect is very clear and it debars the plaintiff from seeking the decree on the basis of the weakness of the defendant. Therefore, the question of law No. (e) is also answered in favour of the appellant. 39. In view of the answers to the questions of law as above, I find that the factual finding of the Courts below that Ex.A1 did not include the entire property purchased by the plaintiff’s father under Ex.B1 becomes perverse and it is liable to be set aside. Therefore the same is set aside. 40. I conclude that the plaintiff’s father had sold whatever he had purchased under Ex.B1 dated 24.01.1949 under Ex.A1 Sale-Deed dated 05.12.1956 and he had no property left with him, after the Sale dated 05.12.1956. I conclude that the plaintiff has not proved his title and he is not entitled to the reliefs of declaration and injunction. In view of the above, the Second Appeal is allowed, the decree of the Courts below are set aside and the suit in O.S. No. 233 of 2012 will stand dismissed with costs throughout. Consequently, the connected miscellaneous petition is closed.