Priority of sale deed, burden of proof in property disputes, requirement of evidence to support claims

The defendant, who had lost in both the Courts below, has filed this appeal challenging the judgment and decree passed in favour of the plaintiff for permanent injunction.

2. The case of the plaintiff is that she is the absolute owner of the suit property having purchased the same from one Sirguru Emam Alisha Kathari. The extent of the suit property is 17 cents. The vendor of the plaintiff, out of 22 cents, has sold 17 cents to the plaintiff. She is in possession of the same from the date of purchase i.e., on 17.08.1981. On 10.03.1983 one Samiayya has purchased an extent of 5 cents in the same Survey No.104/1B from the daughter of the vendor of the plaintiff. The property purchased by the said Samiayya is shown as ‘B’ schedule property in the plaint plan and the property purchased by the plaintiff is shown as ‘A’ schedule property in the plaint plan. The revenue records also stand in the name of the plaintiff.

3. The defendants, who are the legal heirs of the said Samiayya, had denied the title of the plaintiff contending that the vendor of the plaintiff had already settled the suit property in favour of certain third parties on 13.07.1964. Therefore, the sale deed in favour of the plaintiff is invalid. The father of the defendants purchased the suit property from the daughter of the vendor of the plaintiff. Thus, they prayed for dismissal of the suit.

4. Before the trial Court, on the side of the plaintiff, two witnesses were examined as PWs.1 and 2 and Exs.A1 to A9 were marked. On the side of the defendants, two witnesses were examined as DWs.1 and 2 and Exs.B1 to B9 were marked. On the above pleadings, the trial Court had decreed the suit and on appeal, the same was confirmed. Aggrieved by the same, the above appeal is filed by the defendants.

5. At the time of admission, only notice was ordered.

6. Heard the learned counsel for the appellants and the learned counsel appearing for the respondents.

7. So far as the plaintiff is concerned, the property has been purchased by her on 17.08.1981 from the original owner of the property. Whereas the father of the defendants have purchased a lesser extent of the property from the heirs of the same owner. In support of the case of the plaintiff, she has also filed chitta and the proceedings of the Tahsildar and the husband of the plaintiff was examined as PW1. The case of the defendants is that the suit property was settled in favour of the plaintiff's vendor's daughter from whom the defendants' father had purchased. Though the defendants mentioned about the settlement deed, dated 13.07.1964, their sale deed - Ex.B3, dated 10.03.1983, does not mention about the same. Admittedly, the settlement deed is of the year 1964 which is marked as Ex.B1. It is contended that Ex.B1 has been acted upon. Though it is stated that the deceased Samiayya, the father of the defendants, has been in continuous possession of the suit property from 1963 to 1991, there is no document produced to prove the possession. Both of them have also not chosen to examine any one of witnesses to speak about the title of the suit property. Admittedly, the plaintiff's sale deed is prior in point of time. The Courts below have felt that Exs.A2, A3, A5 to A9 are such documents to show the possession of the plaintiff, which are also not disputed by the defendants and hence, decreed the suit.

8. One another theory introduced by the defendants is that the property belonged to the Wakf Board and when the statutory tenants vacated the premises, the defendants' father occupied the same. However, the said fact has also not been established by the defendants. Admittedly, there were 22 cents of lands available of which the plaintiff had purchased 17 cents in the year 1981. It is not known whether the balance of 5 cents has been purchased by the defendants subsequently in the year 1983. But, Exs.B4 to B9 would go to show that the deceased Samiayya got patta for 5 cents. Though the defendants had pleaded that the properties belon