1995 Supreme(MP) 721

R.D. Shukla, J.
Dule Singh v. Jhujhar Singh
S.A. No. 348 of 1979 (I); Decided on 9.8.1995.

Headnote:(1) Title -- extract from panchayat register -- though maintained for collection of tax yet a relevant document of title even if not conclusive.

        (2) Possession -- none of the parties proving conclusive title -- party proving better title is entitled to possession.

        (3) Practice (Civil) -- plaintiff has to succeed on his own evidence -- cannot rely on the weakness of defendants case.

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        Learned trial Judge found title of the plaintiff not proved and dismissed the suit in consequence thereof. The first appeal against the dismissal of the suit also proved abortive. Hence this Second Appeal.

        Learned counsel for appellant, while supporting the points raised by him in para 8 of Memo of Appeal which has verbatim been admitted on the substantial questions of law, submitted, that since plaintiff was in peaceful possession prior to the date of the suit and, therefore, he is entitled for the decree of possession.

        The second contention of the learned counsel for appellant is that the defendants could not prove their title and, therefore, despite plaintiff having failed to prove title, is entitled to decree of possession on the basis of earlier peaceful possession.

        The point of title being found in favour of Gangabai was not pressed upon. Learned counsel for appellant further submitted that document Ex. D/1 extracted from Panchayat Register is not a proof of title and has been wrongly accepted as such.

        Learned counsel has relied on cases reported in AIR 1989 SC 1809 (Corporation of City of Bangalore v. M. Papaiah and another) and AIR 1968 SC 1165 (Nair Service Society Ltd. v. K.C. Alexander and others).

        On the other hand learned counsel for respondents has refuted the contention of the learned counsel for appellant and submitted that plaintiff having failed to prove title in him, cannot take advantage of weakness of the title of the defence. He has relied on a case reported in AIR 1954 SC 526 (Moran Mar Basselios Catholicos and anr. v. Most Rev. Mar Poulose Athanasius and Ors).

        The second contention of the learned counsel for appellant is that though defendants have proved their title by two registered sale-deeds and even otherwise they have got a better title.

        Regarding the proof of title by extract from Panchayat Register Ex. D/1 learned counsel submitted that the same is relevant for the proof of the title.

        Held : It would be proper to deal with the last point raised by learned counsel first.

        Ex. D/1 is an extract from Panchayat Register it has regularly been kept and maintained for the purpose of collection of tax. Though the document Ex. D/1 is a record kept in a fiscal proceeding and that is not conclusive proof of title but the same is relevant and lends support and assurance to the contentions of the defendants that they are title-holders of the land in suit on the basis of registered sale-deed executed by Amritram who got it from his relation Gangabai.

        The plaintiff has examined himself and P.W. 2 Nathudas, P.W. 3 Jairam and P.W. 4 Bhuwan. They have stated that the ancestors of plaintiff were in possession of the suit land. They have denied the fact of earlier possession of Gangabai or Amritram. No documentary proof has been produced.

        As against it defendants have not only examined Jujharsingh (D.W. 1), Kaniram (D.W. 2), Durgashankar (DW. 3), Amarsingh (DW. 4) and Bhanwarlal (DW. 5) in support of their contention but have filed the copies of documents as well. Document Ex. P/1, as referred above, is an extract from the Panchayat Register. That shows that Amritram was taxed for the suit land and it has some dilapidated construction (Khandhar). The same is dated 10.2.67. Though it is not a proof of title but that is relevant to show that Amritram was in possession of the land. Ex. D/2 is a document whereby defendant No. 1 Jujharsingh was granted permission for construction of a house. Ex. D/3 is an order of S.D.M. whereby the plaintiff was restrained from interfering with the possession of defendant. The same is dated 20.6.74.

        This judgment of S.D.M. has become final. H would, therefore, be deemed that on the date of pronouncement of the judgment by S.D.M. the defendant Jujhar Singh was in possession of the suit land.

        Defendant No. 1 has produced document of sale dated 4.4.1961, before the Sub Divisional Magistrate as well.

        Learned two Courts below have accepted the continuous possession of defendant No. 1 and thereafter of Kaniram, over the suit land and have further accepted that earlier the land belonged to Gangabai. Amritram inherited it from her and thereafter transferred it to Jujharsingh. This is a finding of fact.

        The fact as found by the two Courts below is reasonable and probable, it is based on the cogent evidence and rational consideration.

        In view of above the concurrent finding of fact cannot be disturbed while exercising the jurisdiction under second appeal.

        It is an established principle of law that plaintiff can succeed on the strength of his own title and cannot take advantage of the weakness of the defence.

        The plaintiff has totally failed to prove his title. In such a situation the plaintiff cannot be granted decree only on the basis of mere earlier possession which also has not been found proved by the two Courts below.

        The cases referred to by the learned counsel for appellant deal with the situation where there is a specific proof about the peaceful possession of the party concerned and if there is no title on the either party, the party in peaceful possession can claim the decree of possession on the basis of long possession or possessory title. This is not the case here. The plaintiff has not only failed to prove title in him but has further failed to prove the long peaceful possession as found by two Courts below which does not deserve to be disturbed in any way.

        Though there is a prima facie proof of title in favour of the defendantd`respondents but even if it is accepted that there is no conclusive proof of title; as there is no title in favour of the plaintiff, the defendants are entitled to succeed. Where both the parties claim title and none is able to prove title conclusively the person proving better title is entitled to have the possession of the land.

        In this case even if the fact of conclusive proof of title in favour of the defendants is not accepted there is a strong proof of better title as compared to the assertion of title by the plaintiff. In this view of the matter also, the defendantd`respondents are entitled to succeed. AIR 1989 SC 1809 and AIR 1968 SC 1165 distinguished. Appeal dismissed.