HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR S.A.No.383 of 1999 Dated 22-11-2010 Between: Yerramsetti Chittemma @ Siromani. …Appellant. And: Vanguru Sikhamani and others. …Respondents. HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR S.A.No.383 of 1999 JUDGMENT: This appeal is filed by defendant No.2 aggrieved by the impugned judgment of the lower appellate court which has reversed the decree of the trial court in a suit filed by the 1st respondent herein for declaration and injunction. 1) The brief facts of the case are that the 1st respondent- plaintiff claims that one Chowtapalli Ramulamma who is the paternal aunt of his father gifted, under registered gift deed dated 16-1-1957, to the plaintiff Ac.1.00 of dry land, Ac.0.10 cents of wet land and Ac.0.03 cents of house site together with the house. He further claims that out of the said gifted items, he has sold the dry land as well as wet land long back. He remained in possession of the thatched house on Ac.0.03 cents of house site and since it was a merely thatched house, no tax was collected by Grampanchayat. The plaintiff claims that he had married the daughter of defendant No.3 and after the death of his wife, defendant No.3 having not shown any affection towards him, started interfering with Ac.0.03 cents house site and thatched house through Defendant No.2. He also claimed that defendant No.2 is also claiming to have obtained a gift deed from D.3, and on that interference has been made. Therefore, the plaintiff filed a suit for declaration of title and injunction with respect the said Ac.0.03 cents of house site together with thatched house. Plaintiff also claimed that since he was in possession through out under Ex.A.2, he has perfected title even by adverse possession. 2) The defendant No.2 resisted the suit on the ground that he obtained the said suit schedule property under registered gift deed executed by defendant No.3 under Ex.B.2 dated 12-10-82 and that prior to that D.3 had paid the house tax as is evident from Ex.B.1, extract of house tax register, dated 27-2-1982. He therefore claims that the plaintiff was not in possession and that D.3 being the title holder, he has acquired a valid title. 3) Trial court framed the following issues: 1. Whether the plaintiff is entitled to the declaration of title and injunction as prayed for? 2. Whether the plaintiff perfected his right and title and injunction as prayed for? 3. Whether the defendant No.1 perfected his right and title by adverse possession? 4. To what relief? Plaintiff examined himself and three other witnesses and marked Exs.A.1 and A.2. Defendants examined D.Ws.1 to 3 and marked Exs.B.1 and B.2. 4) On consideration of the evidence, the trial court came to a conclusion that though the plaintiff claims the property on the basis of gift deed Ex.A.2, the said document does not anywhere state as to how Ramulamma got the property. The trial Court also felt that the plaintiff failed to discharge the burden of establishing the valid title of his vendor to deal with the schedule property and notwithstanding the fact that P.W.2-attestor has proved Ex.A.2; title of Ramulamma and her entitlement to execute gift deed in favour of the plaintiff remained unestablished. The trial Court also considered the contention of the defendants that Ramulamma was the mother-in-law of D.3 and after the death of the husband of D.3, she succeeded to the property and thereby, Ramulamma even if assumed to be the owner, the said ownership was only a limited ownership and consequently proceeded to hold that under Hindu Succession Act, D.3 succeeded to the property and as such was competent to execute Ex.B.2 registered gift deed in favour of the 2nd defendant. Consequently, the plaintiff’s suit was dismissed. 5) On an appeal by the plaintiff, lower appellate court had reversed the said decree by noticing two principle errors committed by the trial Court. 1) Though parties are Christians, the trial Court applied Hindu Succession Act rather than Indian Succession Act. 2) Trial Court also committed error in not appreciating the onus of proof and has wrongly placed the onus on the plaintiff. 6) Appellate Court on consideration of evidence has believed the evidence of attestor of Ex.A.2 and was of the opinion that the plaintiff has proved and established title under the gift deed Ex.A.2 and the defendants who are disputing the exclusive title of Ramulamma have failed to prove the same and consequently allowed the appeal. Hence this second appeal by the defendant No.2. 7) Mr. G.Vivekanand learned counsel for the appellant has very strenuously contended that the appellate court has committed serious error in placing the burden of proof on defendant No.2 without appreciating that in a suit for declaration of title, the plaintiff alone has to discharge the burden of proof and he cannot depend upon the weakness of the case of the defendants. In support of the said proposition, he has relied upon a Division Bench decision of this court in SAJANA GRANITES, MADRAS AND ANOTHER v. MANDUVA SRINIVASA RAO AND OTHERS ([1]), the particularly at para 10 thereof which is extracted hereunder: “The Supreme Court in M.P.Athanastus case (AIR 1954 SC 526), M.M.Catholics v. Polo Avira case (AIR 1959 SC 31) and this Court in C.Audilakshmamma case (AIR 1973 A.P.149)) held that plaintiff in a suit for declaration of title, and for recovery of possession, can succeed only on the strength of his own title, and that it is not obligatory on the defendants to plead and prove the possible defects in the plaintiff’s title and so if the plaintiff fails to establish his title, even if the defendant fails to establish his own title, plaintiff must be non- suited. In this case since appellants are seeking declaration of their title to the suit property they have to establish their title; and cannot expect relief on the basis of the weakness of the case of respondents 1 and 2, or on the basis that the evidence adduced by respondents 1 and 2 does not establish their title to the suit property.” 8) He also relied upon the decision of the Supreme Court in RAMCHANDRA SAKHARAM MAHAJAN v. DAMODAR TRIMBAK TANKSALE (D) AND ORS. ([2]). Therein also para 10 is relevant which reads hereunder: “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.” 9) Learned counsel also cited a decision of Supreme Court reported in ANIL RISHI v. GURBAKSH SINGH ([3]). To find out distinction between the burden of proof and onus of proof, another decision of the Division Bench of this Court reported in MOHAMMED IBRAHIM (D) BY LRs. AND ANR. v. MOHAMMED ABDUL RAZZAK ([4]) is relied upon for the above proposition. 10) Learned counsel therefore mainly has contended that the property originally belonged to Ramulamma’s husband which devolved on Ramulamma and her son i.e., husband of Defendant No.3 and after the death of Ramulamma, the husband of the defendant No.3 would succeed and on account of the death of the said successor, defendant No.3 would succeed to the property. Ex.A.2 gift deed relied upon by the plaintiff being silent as to how Ramulamma acquired the property, learned counsel submits that the said burden has not been established by the plaintiff and secondly, the lower appellate Court has wrongly placed the burden on the defendants. 11) Learned counsel for the respondent on the contrary submits that parties being Christian is not in dispute. He also submits that the plaintiff has discharged the initial burden by proving Ex.A.2 supported by the evidence of attestor-P.W.2 and submitted that when the defendant No.2 disputes the title of Ramulamma, it is for him to establish the same. He therefore submits that the lower appellate Court has rightly appreciated the said aspect and judgment of the lower appellate Court needs no interference. 12) This second appeal was admitted on the following substantial questions of law: a) Whether the Decree and Judgment of the lower appellate court in reversing the well considered decree and judgment of the trial Court and in coming to the conclusion that the plaintiff has got title in respect of plaint schedule, is legally sustainable.? b) Whether the lower appellate court is right in casting the burden of proof relating to the title on the defendants, when it is the plaintiff who has to prove his title beyond reasonable doubt? c) Whether the reasoning of the lower appellate court in holding that Smt.Ramulamma has executed Ex.A.2 is legally sustainable, even though the plaintiff has not examined any person connected with the document? d) Whether the lower appellate court acted legally in decreeing the suit without considering the legality of Ex.A.2 or the capacity of the donor to execute the gift deed? The main contention of the appellant is with reference to question b) as above. 13) The facts which are not in dispute clearly establishes that while plaintiff claims title to three different properties under Ex.A.2 gift deed by Ramulamma in his favour, he has admittedly sold away two of the properties and from 1957 till the execution of Ex.B.2 gift deed dated 12-10-1982, there was no controversy or challenge to the title of the plaintiff. The alienations made by him with respect to other items which he got under Ex.A.2 gift deed were not questioned at any time by anybody. The defendant No.3 who now claims her title over and above that of Ramulamma has conspicuously not taken any action nor has challenged the title of plaintiff all these years though Ramulamma died 25 to 30 years prior to Ex.B.2. The gift deed Ex.B.2 executed by defendant No.3 in favour of the defendant No.2 would therefore be valid provided defendant No.2 is able to establish the title of his donor i.e., of D.3. As found by court below, Ex.A.2 gift deed relied upon by the plaintiff was established by the evidence of P.W.2 and P.Ws.3 and 4 confirm that the plaintiff has been residing in the suit schedule property in pursuance of Ex.A.2 for several years. Further, the plaintiff having sold other items under Ex.A.2 and the same being not questioned is also born out by the record and the parties being Christians admittedly, the Hindu Succession Act would not apply and thereby, the error committed by the trial Court in applying the principles under Section 14 of the Hindu Succession Act to find limited ownership of Ramulamma is clearly erroneous. 14) So far as the burden of proof is concerned, undoubtedly, plaintiff has to establish his burden in a suit for declaration of title. The decisions 1st, 2nd and 4th cited above clearly laid down the principles and no contrary view can be taken to the said principle. The present case however rests upon the distinction between the burden of proof and onus of proof which was very succinctly explained in the decision of the Supreme Court 3rd cited at paras 19 and 20 of the said judgment. It would therefore be useful to extract: “19. There is another aspect of the matter which should be borne in mind. A distinction exists between burden of proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is, which party is to begin. Burden of proof is used in three ways: (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later; (ii) to make that of establishing a proposition as against all counter-evidence; and (iii) an indiscriminate use in which it may mean either or both of the others. The elementary rule in Section 101 is inflexible. In terms of Section 102 the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same. 20. In R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P.Temple (2003) 8 SCC 752 : JT (2004) 6 SC 442) the law is stated in the following terms: (SCC p.768, para 29). “29. In a suit for recovery of possession based on title it is for the plaintiff to prove his title and satisfy the court that he, in law, is entitled to dispossess the defendant from his possession over the suit property and for the possession to be restored to him. However, as held in Addagada Raghavamma v. Addagada Chenchamma (1964) 2 SCR 933: AIR 1964 SC 136) there is an essential distinction between burden of proof and onus of proof: burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. In our opinion, in a suit for possession based on title once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant it is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiff’s title.” ” 15) It would be evident from the above therefore that plaintiff has discharged his initial burden by establishing by producing and proving Ex.A.2 coupled with evidence of P.Ws.2 to 4. It is defendant No.2 who is questioning the exclusive ownership of Ramulamma. The onus to that extent therefore shifts to him as it cannot be said that the onus of proof is static and the plaintiff thus having discharged the initial burden, no evidence is forthcoming on the part of the defendants, in support of their case that Ramulamma was not the exclusive owner of the property and that husband of 3rd defendant was the owner of the property remained unestablished. I am therefore not able to find any error committed by the lower appellate court in decreeing the suit of the plaintiff. The substantial question of law particularly question ‘b)’ therefore is answered against the appellate and consequently, the other questions also are answered against the appellant. The Second Appeal accordingly fails and is dismissed. However, there shall be no order as to costs. _____________________________________ JUSTICE VILAS V. AFZULPURKAR Dated 22-11-2010 Dvs HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR S.A.No.383 of 1999 Dated 22-11-2010 [1] 2002 (1) ALT 466 (D.B) [2] AIR 2007 SC 2577 [3] (2006) 5 SCC 558 [4] AIR 2007 A.P.294