- (1.) THE plaintiffs suit is one for declaration and for permanent injunction. THE plaintiff claims that the suit property originally belonged to one Alwar, who had settled the property in favour of his grand sons, Alwar and Perumal under Ex.Al, settlement deed dated 5.8.1929 and as the beneficiaries were minors at that time, their mother Pechikudumbachi was appointed as a guardian and she was entitled to enjoy the property till the minors attain the majority and on attaining majority, she has to hand over the property to the beneficiaries. Perumal, one of the beneficiaries, sold this property to Mahalingam under Ex.A2, sale deed dated 4.8.1954, who in turn sold the same to one Subramanian under Ex.A3, sale deed dated 4.9.1959 and Subramainan, in turn, sold the property to Alwar and Perumal, the original beneficiaries under Ex.A4, sale deed dated 26.9.1969. Thus, the property had once again come to the hands of the original owners, viz. Alwar and Perumal and they were enjoying the property and sold the same to the plaintiff under Ex.A5, sale deed dated 1.3.1982. THE plaintiff took possession of the suit property and had reared certain trees and also stacked hay. Thus, the plaintiff and his predecessors in titles have been in possession and enjoyment of the property for over 60 years and they have also perfected title by prescription.
(2.) THE 1st defendant filed a written statement, which was adopted by the defendants 2 and 3, wherein, they have denied the sale in favour of the plaintiff and also the right of his predecessors in title. But, on the other hand, the defendants claim that the suit property belonged to Valliammal, wife of Subramanian and she has sold the same to the first defendant under Ex.Bl, sale deed dated 17.8.1933 and since then, they have been enjoying the property. In 2983, when the third defendant was away from the suit village, the plaintiff stacked hay and cut and removed certain trees. THE third defendant issued a notice to the plaintiff, to which, a reply was sent to him. It is stated that the plaintiff was never in possession of the property. The trial Court did not accept the case of the plaintiff and dismissed the suit. On appeal, the lower appellate Court accepted the case of the plaintiff and allowed the appeal. Aggrieved by the same, the defendants have preferred this appeal. Both the plaintiff and the defendants claim the suit property through the family of one Alwar. The plaintiffs case is that the suit property belonged to Alwar, who had settled the property in favour of his grand sons, Alwar and Perumal, under Ex. Al. Perumal, one of the beneficiaries, sold this property to Mahalingam, under Ex.A2, who in turn, sold the same to one Subramanian under Ex.A3 and Subramanian, in turn, sold the same to Alwar and Perumal, the original owners, under Ex.A4. Thus, the property had once again come to the hands of the original owners, viz., Alwar and Perumal and they were enjoying the property and sold the same to the plaintiff, under Ex.A5, sale deed dated 1.3.1982. According to the plaintiff, he and his predecessors in title have been in possession and enjoyment of the property for over 60 years and they have also prescribed title by presumption. The first defendant claims to have purchased the property from one Valliammal, wife of Subramanian, under Ex.Bl, dated 17.8.1933 and has been enjoying the same and in 1983, when the third defendant, who was looking after the property, was away from the suit village, the plaintiff stacked hay and also cut and removed the trees and he had issued a notice to the plaintiff, to which, a reply was sent to him. This appeal was admitted on the following substantial questions of law:- i. Whether the appellate Court has not erred in not drawing an adverse inference on the plaintiffs non-examination of his vendor? ii. Whether the first appellate Court is correct in saying that the suit is not barred by limitation?
(3.) HEARD the learned advocate for the appellants and the respondents. Admittedly, the plaintiff and the defendants claim the suit property through the family of Alwar and the suit property changed several hands and it had once again come to the family of Alwar, under Ex.A4 in 1959 and they sold the same to the plaintiff under Ex.A5 in 1982. The plaintiff is able to substantiate his case through the documentary evidence, Exs.Al to A5. how the property had come to his hands. On the other hand, the first defendant claims to have purchased the property from one Valliammal, w ife of Subramanian, under Ex.Bl, dated 17.8.1933, and the said Subramanian is the son of Alwar. But, however, Valliammal's claim that she was the wife of Subramanian was challenged by the plaintiff on the ground that she was the wife of one Pothaiyan and they had a daughter, viz. Sankaranandam and filed Ex.A6, birth register extract, to prove the same. But, in Ex.Bl, Valliammal is described as the wife of Subramanian. The trial Court, therefore, accepted the case of the first defendant that Valliammal i s the wife of Subramanian, by placing reliance upon Ex.B 1. But, the defendant has not established, how Valliammal got the suit property. The recitals in Ex.Bl is that it belonged to her husband Subramanian and there is nothing on record to show, how Subramanian got the suit property. But, on the other hand, Alwar, who is the father of Subramanian, had settled the suit property, in favour of his grand sons under Ex.Al and subsequently, the property changed several hands and once again, it came to the family of Alwar and it was sold to the plaintiff. The documentary evidence produced on behalf of the plaintiff, Exs. Al to A5, cogently establish that the plaintiff and his predecessors in title alone have owned and enjoyed the suit property and the defendant is not able to discredit the said claim and the defendant has also not offered any explanation, how Subramanian got the property. The learned advocate for the appellants has submitted that the burden is upon the plaintiff to establish his title to the suit property and the lower appellate Court is not correct in shifting the burden upon the defendants. To substantiate his argument, he relied upon the decisions rendered by this Court in K.A.M. Meera Mohindeem (died) and 8 others v. M. Ali Malik and 5 others , 2001 (3) CTC 228 and Natarajan v. R. Muthukrishnan , 2001 (4) CTC 513 and Periasamy v. Joseph Nadar , 1999 (1) MLJ 769, wherein, on whom the burden of proof lies has been indicated. The burden of proof is always on the part of the plaintiff, who comes to the Court and there is no quarrel over the said proposition. ;