1982 Supreme(MP) 308

P. D. Mulye, J.
Pannalal v. Bhawaniram.
S. A. No. 219 of 1972 (J); Decided on 24-6-1982.

Headnote:(1) Specific Relief Act, 1963- S. 34 -- suit for declaration of title burden lies on plaintiff to prove his case -- he cannot rely on defendants weakness.

        (2) Evidence Act, 1872 -- Ss. 101 and 102 -- burden of proof -- upon whom lies -- suit for declaration of title or right -- burden lies upon plaintiff -- he cannot rely on weakness of defendant.

        (3) Practice (Civil) -- appreciation of evidence -- trial Court giving cogent and detailed reasons for not accepting of witness -- appellate Court should discuss those reasons for forming contrary opinion.

        The short question involved in this appeal is whether the plaintiff and the defendants are entitled to have share in the well to irrigate their respective lands or whether the plaintiff is entitled to the relief of declaration of his 3/4th share in the said well, as according to him the defendants have only ¼th share therein and not half as decreed by the trial Court.

        Held : I find that the learned lower appellate Court has wrongly placed the burden of proof on the defendants. In a suit for declaration of title or such right claimed it is for the plaintiff to prove his case because the principle of law is that the plaintiff must succeed on the strength of his own case and not on the weakness of the defendants version. Therefore, in the present case I am of opinion that when in revenue records admitted1y share of plaintiff and the defendants had been shown to be half-half so far as the right of taking water from the well is concerned, when the plaintiff has claimed the relief of dec1aration contrary to that, it was for him to prove on what basis he is claiming 3/4th for himself and ¼th for the defendants as it is not in dispute that the defendants have a right or share to take water from the said well to their field. This right having been admitted by the plaintiff, it is for him to prove by satisfactory evidence that this right depended in proportion to the land purchased by him in comparison to the remaining land in possession of the defendants (please see AIR 1946 Privy Council, 59, Jagdish Narain v. Nawab Said Ahq1ed Khan and AIR 1954 Supreme Court 526 M. M. B. Catholioa v. M. Athanasius.

       In AIR 1972 Supreme Court 1706 (T. D. Gopalan v. Commr. of Hindu religious and Charitable Endowments, Madras it has been stated that the uniform practice in the matter of appreciation of evidence has been that if the trial Court has given cogent, and detailed reasons for not accepting the testimony of a witness he appellate Court in all fairness should deal with those reasons before proceeding to form a contrary opinion about accepting the evidence which has rejected by the trial Court. However, in the present case, it appear, as is apparent that the learned lower appellate Court proceeded on the assumption that the burden lay upon the defendants to prove their case. It is no doubt true that in civil cases the evidence has to be considered on the principle of preponderance of probabilities, but in this case as observed be the lower Court itself the plaintiff has unnecessarily created confusion on the question of relief of declaration claimed by him. Therefore it is not necessary nor quite material to consider whether the plaintiff was irrigating his land No. 1133 from the disputed well or the pit-type well. AIR 1946 PC 59, AIR 1964 SC 526 and AIR 1972 SC 1716 relied on. Appeal allowed.