MOIDEEN Vs. PARVATHI
LAWS(KER)-1963-10-39
HIGH COURT OF KERALA
Decided on October 10,1963

MOIDEEN Appellant
VERSUS
PARVATHI Respondents

JUDGEMENT

- (1.)The property in suit, seven acres and odd of unassessed land bearing R. S. No. 221 of Vettikattiri village, was the subject matter of a proceeding under S.145 Cr. P. C. between the three plaintiffs on the one hand and the defendant on the other. (Plaintiffs 1 and 2 claimed, and still claim, item No. 1 in the plaint, the plot marked A in the Commissioner's plan, Ext. C4, and the 3rd plaintiff, item No. 2, marked as plot B. The small portion marked T in the south east corner of the survey field covered by a Cholakulam or spring fed tank is outside the scope of the suit and was the subject matter of another suit, between plaintiffs 1 and 2 on the one side and the defendant on the other, which was tried along with the present suit but with which we are not here concerned, The original defendant died pending suit, and defendants 2 and 3, the respondents to this appeal, were brought on record as his legal representatives. That circumstance may however be ignored for the purposes of the present discussion and I shall make reference only to the original defendant whom I shall call merely the defendant). The learned Magistrate found himself unable to decide which of the parties was in possession and so on 30-11-1955, in terms of S.146 of the Code as it stood before amendment by Act 26 of 1955, he attached the property pending decision by a competent court as to the rights of the parties thereto and put the property in the hands of a receiver. On 9-1-1956, the plaintiffs brought the present suit for a declaration that they had both title and possession, that the defendant had neither, and that the property should be released to them, by whom or from what the plaint did not expressly say, but, obviously, by the receiver fee of the attachment. The first court finding both title and possession in the plaintiffs declared their suit. On appeal, the lower appellate court affirmed the finding of the first court on the question of title but nevertheless dismissed the suit holding that the plaintiffs had failed to discharge the onus that lay heavily upon them to prove possession within the 12 years preceding the suit. Hence this second appeal by the plaintiffs.
(2.)I might observe at the very outset that this is not a suit for possession so as to cast upon the plaintiffs the burden of proving title and possession within the statutory period. An attachment of disputed property effected under S.146(1) of the Criminal Procedure Code -- I am speaking of the Code as it stood at the relevant time -- is, under the terms thereof, "until a competent court has determined the rights of the parties thereto or the person entitled to possession thereof." So what a competent court that has been moved in the matter -- by whom is a matter of no consequence -- has to determine is the rights of the parties to the property or who is the person entitled to possession thereof. In a case like the present, what the competent court has to decide is which of the parties has the right to present possession, in other words, subsisting title to possession; and this, I might add, it has to determine with reference, not to the date of the institution of the suit, but the date of the attachment, possibly the date of the preliminary order under S.145(1) of the Code. A mere finding that the plaintiff has not been able to prove his right to present possession will not amount to a finding that the defendant has, and enable the defendant to obtain the property free of the attachment. For that there must be a positive finding that the defendant has proved his right to present possession. The suit is really in the nature of an interpleader suit, and the court is called upon to give a positive finding as to which of the contesting parties is entitled to possession. The onus lies on him who would have the court give such a finding in his favour; in other words it lies equally on both sides; and no particular onus rests on the plaintiff by reason of the accident that it was he rather than the defendant that moved the court. Either one or the other of the parties to the dispute has to move the court since the old S.146 unlike the new section makes no provision for a reference by the Magistrate. But the fact that the court has to be moved by one or the other of the parties does not alter the question it has to decide. The question is, in terms of the section, which of the disputants is entitled to possession, just as if the matter had been referred to the court by the Magistrate instead of the parties being left to move the court by way of suit. Even in an ordinary suit, onus loses much of its significance when evidence has been adduced by both sides. When that has been done, the court has to decide one way or the other on the evidence and it is rarely that it should find itself constrained to depend upon the onus to arrive at its decision. But, in a case like the present, where the question is not whether the plaintiff has proved his right to possession, but is which of the parties has proved his right to possession, and a finding that the plaintiff has not proved his right does not imply the consequence that the defendant has (which it would in an ordinary suit by reason of the dismissal of the suit), the court has to give a positive finding in favour of one party or the other and cannot have resort to a non existent onus.
(3.)In the present case the finding on the question of title is concurrently in favour of the plaintiffs, and no question of law, such as the construction of a document, is involved in that finding. It has however been contended that the judgments of the courts below, in particular that of the lower appellate court, are confused and that lower appellate court has, in effect, blindly accepted the finding of the Trial Court without coming to a decision of its own. This, it is said, is a substantial defect in procedure warranting interference under clause (c) of sub-s.(1) of S.100 of the Civil Procedure Code. No doubt the judgments are not so clear and the discussion by the lower appellate court not so full as one would have liked, but I think the criticism is very much exaggerated. I do not think there is such a lack of clarity or such an inadequacy in the discussion as to amount to a substantial error or defect in procedure, and, in any case, I am satisfied that there has been no error or defect in the decision of the question of title upon the merits. For, it seems to me clear enough on the evidence that the finding in favour of the plaintiffs on that question is correct.
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