The burden of proof lies on the party asserting a legal right, and misplacing this burden can vitiate a judgment, but loses significance after evidence is presented by both parties.

CAV JUDGMENT

(PER: HON'BLE MR JUSTICE V SRISHANANDA)

The present second appeal is preferred by the unsuccessful plaintiff challenging the validity of the judgment passed in O.S.No.70/2001, dated 30.01.2004, on the file of Additional II Civil Judge (Jr.Dn), Bengaluru Rural District, Bengaluru, which was confirmed in R.A.No.83/2004, dated 17.06.2008, on the file of Fast Track Court III, Bengaluru Rural District, Bengaluru.

2. Parties are referred to as plaintiff and defendants for the sake of convenience as per their original ranking before the Trial Court.

3. Appeal came to be admitted on the following substantial questions of law:

“a) Are the judgments of the trial court and the appellate court sustainable as it appears, the defendants have been granted a decree of declaration and injunction merely on the ground that the plaintiff has failed to disprove the document Ex.D.1 when the initial burden was on the defendants who had relied on such document to prove their title.

b) Whether the Trial court is justified in granting the decree of declaration in favour of the respondent- defendants based on the counter claim made under order 8 Rule 6A despite the fact that absolutely there are no evidence to grant such decree.

c) Whether the Trial court is justified in shifting the burden of proof on the part of the plaintiff though the defendants have made a counter claim there in seeking the decree of declaration and injunction which vitiates the impugned judgment and decree of the court below?”

4. Facts in brief which are utmost necessary for disposal of the second appeal are as under:

Plaintiff filed the suit for permanent injunction initially against the defendant Nos.1 to 3. The plaint averments reveal that original plaintiff is the absolute owner in possession and enjoyment of the land bearing Sy.No.39/2C, measuring 11 guntas, situated at Doddabettahalli, Bengaluru North Taluk (hereinafter referred to as ‘suit property’).

5. Plaintiff claimed the title over the suit property by contending that he has purchased the suit property under the registered sale deed dated 24.01.1950 from Shivaramaiah. After purchase, he made an application to the Assistant Director of Land Records to demarcate the suit property.

6. Based on his application, a survey was conducted and boundaries were fixed in respect of the suit property along with sketch. Thereafter plaintiff claimed that he is in peaceful possession and enjoyment of the suit property by paying taxes to the revenue authorities.

7. It was the complaint of the plaintiff that defendants had no manner of right, title and interest nor possession over the suit property, tried to interfere with the plaintiffs possession over the suit property.

8. It was his specific case that on 21.01.2001, defendants tried to remove the fruits which were grown in the trees of the suit property and therefore, cause of action arose to file the suit for permanent injunction.

9. In response to the suit summons, defendants appeared before the Trial Court and filed written statement resisting the suit claim.

10. In the written statement, a counter claim was also laid in respect of the suit property by contending that the plaintiff is neither the owner nor in possession of the suit property. He also contended that suit property was purchased by father of the defendants by name Rudramuniyappa, under a registered sale deed during the year 1946 from