1984 Supreme(MP) 563

R. K. Vijaywargiya, J.
Daryaosingh v. Siddhnath.
S. A. No. 67 of 1974 (I): Decided on 6-9-1984.

Headnote:(1) Evidence Act, 1872 -- S. 101 -- suit for declaration of title-plaintiff has to prove his title over disputed property -- cannot rely on weakness of defendants evidence.

        (2) Evidence Act, 1872 -- S. 31 -- admission contained in document not considered -- judgment is vitiated.

        (3) Civil P.C., 1908 -- S. 100 -- burden of proof wrongly placed -- admission not considered -- interference made in second appeal.

        The material facts giving rise to this appeal briefly stated are as follows:-- The defendants appellants are constructed their house in village Gadroli. While reconstructing the house they opened two doors and two windows shown in the plaint map as Aa, Ba, Sa, Da on the northern side of the wall of their house and they also projected girdars for supporting the gallery to be constructed by them. The plaintiffs case was that the open land shown in the plaint map as Ka, Da, Ja and E which is situated adjacent to the defendants house on the northern side belongs to the plaintiff and the defendants have no right to open doors and windows on his land or to construct a gallery projecting on his land. The plaintiff therefore filed the present suit for declaration of his title to the land in suit and for permanent injunction restraining the defendants from opening the doors and windows and projecting the gallery over it.

        The defendants resisted the suit. They pleaded that the disputed land is a public land lane and it does nut belong to the plaintiff. The plaintiff is therefore not entitled to object to the opening of the doors and windows by the defendants in their house and for projecting the gallery on a public lane.

        The trial Court held that it was not proved that the suit land belonged to the plaintiff and therefore dismissed the suit. On appeal by the plaintiff the appellate Court reversed the finding recorded by the trial Court and held that the suit land belonged to the plaintiff and the defendants have no right to open doors and windows which opened on the land of the plaintiff and for projecting a gallery over it. The appellate Court consequently decreed the plaintiffs suit. Aggrieved by the judgment and decree passed by the appellate Court the defendants have preferred this appeal.

        Held : It is well settled that in a suit for declaration of title to the suit property the burden to prove the fact that the property in suit belongs to the plaintiff, is upon him. In the present case the plaintiff alleged that the suit land belonged to him. The burden to prove the said fact therefore lay upon him. The appellate Court first held that the defendants failed to prove that the suit land was a public land. It also drew an inference against the defendants for non-production of the record from the panchayat to prove the fact that the suit land was a public land. This approach on the part of the appellate Court is patently erroneous, as it is well settled that in a suit based on title the plaintiff cannot succeed because of the weakness in the defendants case and that he has to prove his own title. The finding recorded by the appellate Court is therefore vitiated.

        That apart before constructing the house the defendants applied for permission from the panchayat. The plaintiff was the sarpanch of the Panchayat. Inspection of the site was made. Ex. D-1 is the application filed by the defendants with the inspection note of the panchayat and Ex. D-2 is also a record of the said inspection.

        Now in Ex. D-1 it is clearly stated that to the north of the defendants house there is an Aam Rasta 4-½ feet wide. This inspection note bears the signature of the plaintiff. Now the fact that to the north of the defendants house there is an Aam Rasta is an admission of the plaintiff. The plaintiff now wants to say that this Aamrasta is his land. It was for the plaintiff to explain his admission contained in Ex. D-1. The plaintiff has not explained the same. The appellate Court did not consider the effect of this admission made by the plaintiff. It brushed it aside saying that Ex. D-1 and D-2 are not the sanction granted by the panchayat and that they are only the record of the inspection of the site. This can hardly be a ground for brushing aside the admission of the plaintiff.

        No documentary evidence is led by the plaintiff to prove the fact that the suit land belongs to him. In the circumstances and in the face of the admission of the plaintiff contained in Ex. D-1 and D-2 that the suit land was an Aamrasta (Public thorough fare), the finding recorded by the appellate Court that the suit land belongs to the plaintiff is perverse and deserves to be set aside. The judgment and decree passed by the appellate Court therefore cannot be sustained in law and are set aside. Appeal allowed.