2019 Supreme(Mad) 1443

IN THE HIGH COURT OF JUDICATURE AT MADRAS
C.V. KARTHIKEYAN, J.
K.S. Krishna Chetty and Ors. - Appellants
Versus
Chinna Pappammal and Ors. - Respondents
S.A. No. 1074 of 1994
Decided On : 01-03-2019

Headnote:

Civil Procedure Code,1908 - Order 41 - Rule 27 and 28 - Land Acquisition Act,1894 - Section 4(1) - Suit for permanent injunction - Sale deed - Plaintiff claimed that she had purchased acres in Bargur Village Krishnagiri by sale deed - Government had later acquired cents for construction of a Police Station Quarters leaving out cents - It was stated that said cents was South of a percolation pond known as Kasam Kuttai and west of Kasam and channel - It was claimed that these are permanent features - Defendant owned lands to East of said pond and channel - He has no manner of right or interest in suit property - Plaintiff claimed to be in possession - It was further claimed that defendant attempted to trespass necessitating institution of suit seeking declaration of title and permanent injunction - Suit property was described as cents in Bargur Village situated East of Police Station area South of Kasam Kuttai West of kasam channel and North - In written statement averments in plaint particularly claim that plaintiff was owner of cents and was in possession of suit property were denied - It was stated that Bargur Village originally measured a total area of acres - Vendors of plaintiff and their predecessors in title were entitled only to one half of said acres namely cents - However they had claimed to be in possession of cents - Remaining portion of cents was in possession and enjoyment of vendors of defendant and their predecessors in title - Defendant purchased said property by two sale deeds - It was stated that vendors of plaintiff had title only to cents and consequently could not have conveyed acres - Whether Courts below erred in law in granting a decree in favour of plaintiff in respect of suit property in view of fact that predecessors in title of plaintiff and defendant were entitled to half share in acres of land in respectively and in view of fact that Government of Tamil Nadu had acquired extent of cents in? Whether courts below erred in law in placing burden of proof with regard to title of property on defendant when it is for plaintiff to establish title to suit property? - Whether plaintiff is entitled for declaration of title with respect to suit property? Whether plaintiff was in possession on date of institution of suit? Whether defendant was estopped from denying title of plaintiff? Whether plaintiff had prescribed title by adverse possession? To what other reliefs? Whether defendant had prescribed title by adverse possession? Whether it had been proved that plaintiff was entitled for declaration of title for cents or for whatever correct area and was also in possession of same? Whether plaintiff had prescribed title by adverse possession? Whether defendant had established title or had established adverse possession? Whether defendant was estopped from questioning title of plaintiff? Whether judgment and decree of Trial Court requires interference? Whether Courts below erred in law in granting a decree in favour of plaintiff in respect of suit property in view of fact that predecessors in title of plaintiff and defendant were entitled to half share in acres of land in respectively and in view of fact that Government of Tamil Nadu had acquired extent of cents in ?Whether courts below erred in law in placing burden of proof with regard to title of property on defendant when it is for plaintiff to establish title to suit property? - Held, It is clear from above passage that though Sub Judge had accepted that actual area available was only cents but still that declaration could be granted for cents since four boundaries had been given in plaint - Plaintiff cannot be granted relief for a larger area of land than actually available - Court hold Courts below had erred in granting a decree particularly when predecessors in title of plaintiff and defendant were entitled to equal one half share alone in acres of land in Bargur Village - In plaint plaintiff had claimed title to acres - This had been conveyed to her predecessors in title pending which was a suit for partition and in which final decree was passed dividing entire into two equal half as cents each - Consequently Court below could not have granted title to plaintiff for suit property measuring cents which was part of larger extent of acres - Court further hold that predecessor of plaintiff in title could not claim right to more than cents - It is significant to note that plaintiff has not produced Section 4(1) Notification under Land Acquisition Act - Plaintiff has to establish her case - It has not been established how she could be granted declaration of title to cents when she was in possession of only cents - Question of law is answered against plaintiff - Second Appeal is allowed second substantial question of law was with respect to shifting burden of proof on defendant to prove title - Plaintiff has to establish title - Documents which plaintiff relied are on lis-pendens of District Munsif court Krishnagiri - Those documents related to a larger extent - Vendor could not have conveyed a larger extent than cents - In a suit for declaration of title it is for plaintiff to establish title - Merely because defendants title is negatived or a cloud of suspicion is created over claim of defendants it cannot automatically follow that plaintiff has established his title - In this case that has been approach of both Courts below - They should have consciously examined facts to determine manner in which plaintiff can claim title for acres when her predecessors in title could convey only cents - Court hold that plaint has to fail and it was wrong on part of Courts below to shift burden of proof to prove title on defendant - This question is also answered against plaintiff - Second Appeal Allowed