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CASE NO.: Appeal (civil)  2920 of 2007

PETITIONER: RAMCHANDRA SAKHARAM MAHAJAN

RESPONDENT: DAMODAR TRIMBAK TANKSALE (D) & ORS

DATE OF JUDGMENT: 09/07/2007

BENCH: S.B. SINHA & P.K. BALASUBRAMANYAN

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO 2920        OF 2007 (Arising out of SLP(C) No.9739 of 2005)

P.K. BALASUBRAMANYAN, J.

                Leave granted.

1.      This appeal arises out of Special Leave Petition (Civil)  No.9739 of 2005.  The plaintiff in a suit for declaration of joint  title with defendant nos.10 to 13, for recovery of possession of  the plaint schedule property and for mandatory and  prohibitory injunctions, is the appellant in this appeal.  He  filed Civil Suit No.53 of 1990 against the defendants 1 to 9.   On objection being raised by defendant 1 to 9, the plaintiff  also impleaded defendants 10 to 13 who he claimed were co- owners with him of the suit property.

2.              According to the plaintiff, the suit property was  blocked in new khasra no.327 and recovery of possession was  sought in respect of 73 cents in the north-western corner of  the said khasra.  The case of the plaintiff is that new khasra  no.327 along with khasra nos.329, 330 and 331 out of Mouza  Sitabuldi, Circle No.19/27, Division No.8 at District Nagpur  belonged to a Muslim family and the property was granted on  lease to Balwantrao Mahajan, a predecessor-in-interest of the  plaintiff.  The lease deed executed in that behalf was dated  21.7.1875.  The predecessors of the plaintiff had permitted the  predecessors of defendants 1 to 9 to occupy a portion of the  leasehold property on licence.  While in such occupation,  defendants 1 to 9 had demolished the structure that had been  originally put up for residence in the property and were  attempting to raise a commercial construction therein and to  exploit the property commercially.  Defendants 1 to 9 were not  entitled to do so and the plaintiff was entitled to recover  possession on the strength of his title.  The plaintiff had  pleaded that there had been a partition between him and  defendants 10 to 13, but the subject matter of the suit was not  divided and consequently it continued under the joint title of  the plaintiff and defendants 10 to 13.  Defendants 10 to 13 did  not support the case of the plaintiff.  For reasons of their own  they purported to disown any title in the suit property.   According to the plaintiff, they had been got at by defendants  1 to 9.

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3.              Defendants 1 to 9 denied the claim of the plaintiff  and set up title in themselves.  The licence pleaded by the  plaintiff was denied.  The right of the plaintiff to recover  possession was questioned.  It was contended that defendants  1 to 9 were in possession of the property and their family had  long been in possession thereof in their own right and the  plaintiff was not entitled to any relief.

4.              It may be noticed that the plaintiff had amended the  plaint once.  He sought to amend the plaint again for what his  counsel called, trying to pinpoint the disputed property with  better particulars.  But the trial Court dismissed the  application for amendment.

5.              In support of his case, the plaintiff produced a  number of revenue records and other documents.  For reasons  not explained, he did not produce the lease deed dated  21.7.1875, the source of the title of his family as set up in the  plaint.  Belatedly, he tried to introduce a certified copy of the  lease deed in evidence.  The trial Court took the view that no  foundation had been laid for adducing secondary evidence  since what was sought to be produced was only a certified  copy and not the original and hence discarded the lease deed.   Taking the view that the other documents relied upon by the  plaintiff including Ext.141 and 142 and the khasra entries for  the succeeding years are not enough to establish the title of  the plaintiff, the trial Court dismissed the suit.  Incidentally,  the trial Court also appeared to find that defendants 1 to 9  had not established the title claimed by them.  But the trial  Court rightly took the view that the burden was on the plaintiff  to establish his title and any weakness in the defense would  not entitle the plaintiff to a decree for recovery of possession.   It may be noticed that defendants 1 to 9 had made a counter  claim for relief against the plaintiff in respect of a portion of  the property and the trial Court found that the counter claim  had not been established.  Thus the trial Court dismissed the  suit as well as the counter claim.

6.              The plaintiff filed an appeal.  In the appeal, he  questioned the refusal to permit him to amend the plaint and  supply better particulars which according to him were needed  for a proper adjudication of the matters in controversy.  He  also challenged the refusal of the trial Court to admit the  certified copy of the lease deed dated 21.7.1875 in evidence.    He raised the contention that the documents produced on  behalf of the plaintiff and the admission of defendants 1 to 9 of  the title of the predecessor of the plaintiff over khasra no.327  and the plea raised that the property in the occupation of  defendants 1 to 9 was outside the property of the predecessor  of the plaintiff and did not form part of khasra no.327/1  established the title of the plaintiff.  He contended that on the  materials available, the trial Court ought to have decreed the  suit and the dismissal of the same was clearly erroneous.   Alternatively, it was pressed that the trial Court ought to have  permitted the amendment of the plaint and also ought to have  admitted the certified copy of the lease deed in evidence and  that not having been done and the trial Court having  discharged two of the witnesses that the plaintiff had cited and  produced for examination, there had been miscarriage of  justice and the plaintiff was entitled to have a proper  opportunity to establish his case.  On behalf of defendants 1 to  9 it was pleaded that there was no bonafides in the suit, and  the stand of defendants 10 to 13 disowning any joint right,  title or interest in the property with the plaintiff was relied  upon.  It was submitted that the trial Court was justified in

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not permitting the amendment of the plaint sought for at a  belated stage and in not admitting in evidence the certified  copy of the lease deed dated 21.7.1875 and that the suit filed  by the plaintiff was a speculative one and that there was no  occasion for the appellate Court to show any indulgence to the  plaintiff.  On merits, it was contended that the trial Court was  right in holding that the plaintiff has failed to prove the title of  his family over the property in the possession of defendants 1  to 9 and that the suit had been rightly dismissed.  But,  defendants l to 9, though they filed a memorandum of cross- objections questioning the dismissal of their counter claim  filed before the trial Court, did not press it and gave up their  counter  claim.

7.              The appellate Court proceeded essentially to refer to  some City Survey records and the recording therein of  defendants 1 to 9 or their predecessor as occupants and the  alleged belated objection to the same raised by the plaintiff.   The appellate Court brushed aside the various revenue records  relied upon by the plaintiff in support of this case and the  entries in record of rights that the predecessor of the plaintiff  was in possession as a lessee under the Muslim ladies who  had Malik Makbuja rights in the property and the recording in  1914-15 of the property being held by his family in terms of  the indenture of lease of the year 1875.   The appellate Court  also did not properly advert to the relevant entries in the  revenue records relating to different plots and taking the  overall view that the plaintiff’s approach to the Court lacked  bona fides, dismissed the appeal.  Feeling aggrieved by this  dismissal, this appeal has been filed by the plaintiff.

8.              Learned Senior Counsel for the plaintiff \026 appellant,  took us elaborately through the pleadings and the evidence in  the case.  At the threshold, he submitted that the amendment  of the plaint though asked for belatedly, should have been  allowed since allowing of that amendment would have  pinpointed the dispute between the parties that called for  resolution in the suit and that the appellate Court was in error  in observing that there was no bona fides in the suit.  He  contended that adequate foundation had been laid for  accepting the copy of the lease deed of the year 1875 in  evidence by receiving the certified copy thereof produced by  the plaintiff and discarding the lease deed from consideration  has resulted in clear miscarriage of justice.  Learned counsel  also pointed out that the trial Court was in error in not  recording the evidence of the two witnesses from the Survey  Department made available by the plaintiff for examination in  support of his case and thereby the plaintiff has been denied  justice in the lis.  Learned counsel pointed out that the  records clearly show that the property was held by a  Mohammedan family and two ladies thereof had granted a  lease in favour of the predecessors of the plaintiff in the year  1875 and thereafter the revenue records consistently show  that the predecessors of the plaintiff had been in possession  under the Mohammedan ladies on the basis of the lease deed  and in that context, the explanation offered by the plaintiff  that the predecessors of defendants 1 to 9 were permitted to  occupy a portion which was only in the form of a licence, was  fully acceptable especially in the context of the stand adopted  in defense that the property was not included in khasra  no.327/1 and the failure of defendants 1 to 9 to establish the  title set up by them.  Learned counsel submitted that there  was no sanctity to the so-called City Survey records for  deciding the dispute on title, especially in the context of the

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Survey records produced on the side of the plaintiff and in  that context, the courts below, were clearly in error in not  permitting the witnesses to be examined to establish the case  of the plaintiff.  Learned counsel submitted that on the  materials, the plaintiff was entitled to succeed in the absence  of defendants showing any right in themselves and the plaintiff  having established that the suit property is part of khasra  no.327/1 which was included in the lease deed of the year  1875 in favour of the family of the plaintiff.  Alternately,  counsel submitted that the matter required to be remanded to  the trial Court for a fresh trial, giving the plaintiff an  opportunity to lead evidence in support of the admissibility of  the certified copy of the lease deed or for production of the  lease deed if it is available and if necessary for taking out a  commission for a proper identification of the property  comprised in the lease deed dated 21.7.1875 in favour of the  family of the plaintiff which had not been terminated by the  Mohammedan family.  He also submitted that defendants 10  to 13 had obviously been purchased by defendants 1 to 9 and  their failure to support the case of the plaintiff had no  relevance and that cannot be relied upon to non-suit the  plaintiff when the plaintiff has otherwise established his case.   He submitted that the stand of defendants 10 to 13, was  dishonest, to say the least.

9.              Learned counsel for defendants 1 to 9 contended  that the findings by the courts below that the plaintiff had  failed to prove the title set up by him is a finding that does not  call for interference in this appeal.  It was a finding based on  an appreciation of the materials produced in the case and  there was no justification in interfering with the appreciation  of the evidence by the courts below.  Learned counsel further  submitted that the admissions of the plaintiff in his oral  evidence and the non-inclusion of the suit property in the  partition between the plaintiff and defendants 10 to 13 and  the admission in that behalf by the plaintiff in his evidence, all  show that the suit has been filed as a speculative one and that  the approach of the plaintiff to the Court was not bona fide.   Learned counsel submitted that instead of furnishing all the  relevant particulars even in the first instance and by not  impleading defendants 10 to 13 either as co-plaintiffs or as  defendants, the plaintiff had attempted to mislead the court  and the appellate Court was fully justified in not  countenancing the attempt of the plaintiff to amend the plaint  once more and also in attempting to get the certified copy of  the lease deed marked in evidence.  It was submitted that the  appeal deserves to be dismissed.  It was also pointed out that  the High Court had not only awarded a cost of Rs.25,000/-,  but had also given an opportunity to the defendants to file a  suit for damages if they were so advised, and this was because  of the lack of bona fides on the part of the plaintiff in  approaching the Court with the present suit.  Learned  counsel, therefore, submitted that the appeal deserves to be  dismissed.

10.             The suit is for recovery of possession on the  strength of title.  Obviously, the burden is on the plaintiff to  establish that title.  No doubt in appreciating the case of title  set up by the plaintiff, the Court is also entitled to consider the  rival title set up by the defendants.  But the weakness of the  defence or the failure of the defendants to establish the title  set up by them, would not enable the plaintiff to a decree.   There cannot be any demur to these propositions.

11.             The question, therefore, is whether the plaintiff had

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established his title to the suit property.  The plaintiff, though  somewhat belatedly, attempted to amend the plaint to make  his claim more precise so as to enable the Court to adjudicate  upon it more satisfactorily.  We see force in the contention of  learned senior counsel for the appellant that the trial Court  ought to have allowed the amendment so as to enable it to  decide the dispute in a more satisfactory manner.  The  appellate Court, it appears to us, was also not justified in  harping upon the so-called absence of bona fides on the part  of the plaintiff in approaching the Court.  What was called for,  was an independent appraisal of the various documents  produced by the plaintiff in the light of the pleadings and the  oral evidence available, to come to a conclusion whether the  plaintiff had established his title or not.  In that context, the  appellate Court ought to have seen that the trial Court was in  error in refusing the amendment of the plaint which would  have enabled the Court to render a decision in a more  satisfactory manner.

12.             Similarly, when there is an ancient document of  1875 that is being relied upon in support of the claim of the  plaintiff, the appellate Court ought to have granted an  opportunity to the plaintiff to prove that document or to lay  the foundation for adducing secondary evidence for its  acceptance in evidence by production of a certified copy of the  lease deed.  By refusing to look into the document of title  relied upon by the plaintiff on the ground that no foundation  has been laid for adducing secondary evidence by production  of a certified copy of the lease deed, the trial Court and the  appellate Court have adopted a course that has resulted in  injustice to the parties.  The trial Court ought to have, in the  circumstances, called for evidence regarding the availability of  the original of the 1875 lease deed and given the plaintiff an  opportunity to lay the foundation for accepting in evidence a  certified copy of that document.  After all, the whole case  depends upon whether the suit property is included in the  1875 lease deed and if it is included, whether the plaintiff  could get a decree for recovery of possession of the portion in  the possession of defendants 1 to 9.

13.             Similarly, the appellate Court, it appears to us, has  erred in placing undue reliance on what is called the City  Survey records when the other Survey records, the revenue  map, the record of rights and other documents relied upon by  the plaintiff tended to show that khasra no.327/1 was held by  the family of the plaintiff under a lease from a Mohammedan  family as granted by two ladies of that family.  If the property  is included in the 1875 lease deed, then the further question is  whether the plaintiff is entitled to recover possession thereof  on the strength of his title claimed jointly with defendants 10  to 13.  Title is not decided by survey records alone.  If  necessary, a proper identification of the properly leased out to  the family of the plaintiff under the 1875 lease deed has also  to be made by issuing a Commission for that purpose.  On a  consideration of the rival arguments, we are satisfied that the  matter requires to be decided afresh.

14.             We find that the trial Court and the appellate Court  were not justified in refusing the amendment of the plaint  sought for by the plaintiff.  No doubt there had been delay in  seeking amendment but that delay could have been  compensated by awarding costs to the contesting defendants 1  to 9.  Therefore, we are satisfied that the amendment sought  for by the plaintiff ought to have been allowed.  We are  inclined to allow the amendment sought for, since it would

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enable the Court to pin-pointedly consider the real dispute  between the parties and would enable it to render a decision  more satisfactorily to its conscience.  We, therefore, allow the  amendment as sought for by the plaintiff at a belated stage.   The amendment will be carried out by the plaintiff in the trial  Court within three months from this date as per the practice  followed in the trial Court.  Obviously defendants 1 to 9 would  have an opportunity to file an additional written statement to  the amended plaint.  They will be entitled to file an additional  written statement within a period of four months from the date  of this judgment.

15.             Similarly, we also think that it would be in the  interests of justice, to give the plaintiff an opportunity to  produce the original lease deed of the year 1875 or to adduce  evidence in support of his claim to get marked in evidence a  certified copy of the lease deed as secondary evidence.  Such  an opportunity will also be granted by the trial Court to the  plaintiff.  Similarly the plaintiff will also be given an  opportunity to get the property comprised in the lease deed of  1875 identified and to get demarcated the disputed portion in  the entire property by issuing an appropriate commission for  that purpose.  Thus on the whole we are satisfied that the  matter requires to be remanded to the trial Court for a fresh  trial and disposal.

16.             But we cannot ignore the fact that the plaintiff had  not been diligent in prosecuting the suit in a proper manner.   We, therefore, think that he should be put on terms.  We,  therefore, direct the plaintiff to deposit in the trial Court as  costs thrown away, a sum of Rs.15,000/- within a period of  two months from this date.  If such an amount is deposited,  the same would be disbursed unconditionally to defendants 1  to 9.

17.             In the result this appeal is allowed, the judgments  and decrees of the courts below are set aside and the suit is  remanded to the trial Court for a fresh trial and disposal in  accordance with law and in the light of the observations made  above.  Since defendants 1 to 9 have not pursued their  counter claim covered by their cross-objections in the High  Court, the rejection of their counter claim would stand  confirmed and it would not be necessary for the trial Court to  consider the counter claim afresh.  The parties are directed to  suffer their respective costs in this Court.  The parties will  appear before the trial Court to receive further orders as to  posting on 10.9.2007.