Supreme Court: In an appeal against the judgment passed by the Gauhati High Court, wherein the Court held that the plaintiff/appellant based on evidence and documents placed on record has not been able to discharge the burden of proof to establish legal ownership and title to the Schedule A property, the division bench of Sanjiv Khanna* and J.K Maheshwari, JJ held that impugned judgment has rightly examined the aspect of demarcation and identification of Schedule A property. Further, the plaintiff has not been able to establish her title and ownership over the Schedule A property. A decree of possession cannot be passed in favour of the plaintiff on the ground that respondents have not been able to fully establish their right, title and interest in Schedule A property. Thus , it held that the impugned judgment by the High Court had rightly allowed the appeal and set aside the judgment and decree of the Trial Court.
In the case at hand, a suit was filed by the plaintiff on behalf of Maharani Chandratara Devi praying for declaration that she is the owner of the property known as ‘Khosh Mahal'.
The two-interconnected issues in the present appeal are:
I. The first aspect relates to the demarcation of land given on lease vide the Deed of Patta and the Ekrarnama , based on which the title suit was filed by the attorney on behalf of Maharani Chandratara Devi.
The Court opined that the impugned judgment has rightly examined the aspect of demarcation and identification of Schedule ‘A' property viz. the identity of the land mentioned in the Deed of Patta and the Ekrarnama. Upon consideration of the evidence and material on record the Court said that the plaintiff has not been able to establish her title and ownership over the Schedule A property. Thus, the Court refers to the reasoning given by the High Court in this regard and adds some reasons of its own.
First, the Deed of Patta and the Ekrarnama does not refer to any constructed building, and the building Hotel Khosh Mahal in particular. If the Deed of Patta and the Ekrarnama were pertaining to the property where Hotel Khosh Mahal had been constructed, it is normal and natural that this position would have been specifically indicated and mentioned.
Secondly, the Trial Court had appointed a surveyor, who gave his report based on a site inspection done on 18-12-1994 in the presence of the parties. The Court opined that the Trial Court has wrongly held that the survey report supports and accepts the case of the plaintiff. The said finding was factually incorrect. Further, the High Court has rightly held that the survey report is against the plea and contention of the plaintiff. As per the survey report, the description of the Schedule A property, where the building Hotel Khosh Mahal is located is different from the description given in the schedule of the Deed of Patta and Ekrarnama.
Thirdly, post the submission of the survey report , the plaintiff in 1995 had amended the plaint and post the amendment, had increased the measurements mentioned in Schedule A. Consequent to this amendment, the figures now recorded in Schedule A corresponded with the measurements mentioned in the Deed of Patta. The Court said that the Trial Court in the impugned judgment has overlooked this discrepancy by observing that the quantity of land was immaterial as the basic dispute is whether the Schedule A property belonged to the plaintiff or to Hotel Khosh Mahal.
Further, it said that the Trial Court had observed that earlier the land was measured by eye estimation and the quantity of land in actual possession would always be in excess of what is written in the instrument. It is difficult to accept this reasoning because the Deed of Patta refers to the measurement and demarcation of land which is vastly different from both point of view of location as well as the total measurement of land mentioned in the survey report. The assumption made by the Trial Court is fallacious and flawed. The difference in area recorded is substantial. No corrigendum to correct the area in the Deed of Patta and Ekrarnama was made at any point of time.
Fourthly, the power of attorney executed by Maharani Chandratara Devi dated 16-10-1985 and relied upon by the attorney had equally identified the land in question, the land which belonged to her. No doubt, Schedule B in the power of attorney statedly executed by Maharani Chandratara Devi refers to ‘Khosh Mahal' but the area in the measurement given is vastly different. The area and location mentioned in the power of attorney corresponds with the area and location mentioned in the Deed of Patta and Ekrarnama. Thus, the Court said that the contention that the area and location were wrongly mentioned in the Deed of Patta and the Ekrarnama is an afterthought, and the said stand was taken after the discrepancies highlighted in the survey report had come on record.
Further, the Court said that the plaintiff should not be allowed to raise a plea that the Deed of Patta is a fabricated document as this contention was not raised before the Trial Court or the High Court. The Deed of Patta is a registered document that enjoys the presumption, being more than thirty years old, in terms of Section 90 of the Indian Evidence Act, 1872. Moreover, the plaintiff had not impleaded Hotel Khosh Mahal as a party to the civil suit.
The Court said that the letter purportedly sent by Maharaja Durjoy Kishore Debbarma as an attorney of Maharani Chandratara Devi could be forged. However, Hotel Khosh Mahal has been recorded as the owner and possessor of the Schedule A property in the revenue records. The revenue entries were challenged by the plaintiff only in the year 1994 in the Revenue Case. Also, the gap of 18 years in the filing of the civil suit has not been explained by the plaintiff.
The Court further said that the pleading by the plaintiff is acceptance of the fact that when Hotel Khosh Mahal was established in 1941, subsequently Schedule A property got vested with it. In 1941, the plaintiff was clearly not the owner or in possession of the Schedule A property/Khosh Mahal. It is apparent that the construction of the hotel building on the land was undertaken and done by Hotel Khosh Mahal. The plaintiff has made no such claim.
Also, it said that as per the plaint, the Schedule A property was given on lease by Maharani Chandratara Devi to Hotel Khosh Mahal.The plaintiff, however, has not placed any document on record in support of this claim. Further, there is no document or evidence to support the plaintiff's claim that she had taken possession of Schedule A property through her workmen and agents and started a guest house, thus this claim is unsubstantiated, or rather implausible.
Thus, the Court opined that for the plaintiff to succeed, she must establish that she has a legal title to the Schedule A property, and consequently, is entitled to a decree of possession. The defendants/respondents cannot be dispossessed unless the plaintiff has established a better title and rights over the Schedule A property as a person in possession of land in the assumed character as the owner, and exercising peaceably the ordinary rights of ownership, has a legal right against the entire world except the rightful owner1. A decree of possession cannot be passed in favour of the plaintiff on the ground that defendants have not been able to fully establish their right, title and interest in Schedule A property.
II. The second issue relates to the burden of proof and whether the plaintiff has succeeded in discharging the burden by establishing her title for a declaratory decree of ownership and her right to possession of Schedule A property.
The Court relied on Section 101 of the Evidence Act and said that the burden of proof to establish a title in the present case lies upon the plaintiff as this burden lies on the party who asserts the existence of a particular state of things based on which she claims relief. This rule may not be universal and has exceptions, but in the factual background of the present case, the general principle is applicable.
In terms of Section 102 of the Evidence Act, if both parties fail to adduce evidence, the suit must fail. Onus of proof, no doubt shifts, and the shifting is a continuous process in the evaluation of evidence, but this happens when in a suit for title and possession, the plaintiff has been able to create a high degree of probability to shift the onus on the respondent. In the absence of such evidence, the burden of proof lies on the plaintiff and can be discharged only when he is able to prove title. The weakness of the defence cannot be a justification to decree the suit.
Further, it said that the plaintiff could have succeeded in respect of the Schedule A property, if she had discharged the burden to prove the title to the Schedule A property which squarely falls on her. This would be the true effect of Sections 101 and 102 of the Evidence Act. Therefore, it follows that the plaintiff should have satisfied and discharged the burden under the provisions of the Evidence Act, failing which the suit would be liable to be dismissed. Thus, the Court held that the impugned judgment by the High Court had rightly allowed the appeal and set aside the judgment and decree of the Trial Court.
Therefore, the Court upheld the findings of the High Court that the suit should be dismissed, and clarified that it had not interfered with or set aside any observations of the High Court in re the Tripura Land Revenue and Land Reforms Act, or defendants' claim etc.
[Smriti Debbarma v. Prabha Ranjan Debbarma, 2023 SCC OnLine SC 9, decided on 04-01-2023]
*Judgment by: Justice Sanjiv Khanna
*Apoorva Goel, Editorial Assistant has reported this brief.