- (1.) THIS second appeal is focussed by the original plaintiff, animadverting upon the judgment and decree dated 25.9.2007 passed in A.S.No,38 of 2006 by the Sub Court, Tiruvallur, confirming the judgment and decree dated 30.12.2005 passed by the District Munsif, Pallipattu, in O.S.No,694 of 2001, which was for declaring the plaintiff's title over the 'B' scheduled property and to direct the defendants 1 to 9 to deliver vacant possession of the 'B' scheduled property and for mandatory injunction directing the respondents 10 to 13 to cancel house site patta issued in the name of the defendants. For convenience sake, the parties are referred to hereunder according to their litigative status before the trial Court.
(2.) THE second appellant herein filed the suit O.S.No,694 of 2001 before the District Munsif, Pallipattu, seeking the following reliefs: "a) to declare the plaintiff's right, title and interest in the 'B' schedule property b) to direct the defendants 1 to 9 to deliver vacant possession of the suit 'B' schedule property after removing the thatched house, cattle shed and white stones to the plaintiff, failing which through process of this Honourable Court c) to direct the defendants 10 to 13 to cancel house site patta issued in the name of the defendants by way of mandatory injunction." Whereupon the defendants 1, 2 and 8 entered appearance and filed the written statement. (b) During trial, the plaintiff examined himself as Ex.P.W.1 and Exs.A1 to A22 were marked. D1 examined himself as D.W.1 on his side and Exs.B1 to B22 were marked. Ex.C1 and Ex.C2 were marked as Court documents. (c) Ultimately, the trial Court dismissed the suit. As against which, the appeal was filed for nothing but to be dismissed by confirming the judgment and decree of the lower Court. Unhinged and disconcerted by the order of both the Courts below, this second appeal is focussed on various grounds and also by suggesting the following substantial questions of laws: "1) When the appellant/plaintiff had filed a memo in the lower appellate Court stating that during the pendency of S.A.No.1354/1992 in the High Court, the Tahsildar, Pallipattu had converted the land in Gramanatham S.No,79/4 into S.No,82/4 and issued patta in favour of Bojjiammal and another under Exts.B2 and B3 without following the rules and procedures, it was the duty of the Government to produce all the records to show that everything was done properly and the lower appellate Court went wrong in confirming the judgment and decree of the trial Court. 2) The Government should have produced the sale deed executed by the appellant or his mother, if it is its case that they purchased it, and its failure to do so would clearly prove the case of the appellant. 3) If it is the case of the Government that it acquired the land, a notice should have been served on the appellant, or at least they should have passed an award and paid compensation to the, but no records had been produced by the Government. 4) The fact that respondents 10 to 12 remained absent and were set ex parte before the trial Court, goes a long way to establish that there was something fishy in their transactions, which they have not disproved so far. 5) Though the suit O.S.No,321/79 was filed by one Yesupatham against the appellant herein, the appellant herein was declared entitled to the property by the trial Court therein, and the same has been confirmed both by the lower appellate Court and the High Court in S.A.No.1354 of 1992, and hence the failure of the appellant to file a separate suit for declaration and title, as held by the courts below in the present suit, cannot be said to go against his title." A bare poring over and perusal of the typed set of papers, including the judgments of both the Courts below, would exemplify and expatiate, demonstrate and display that the contention and the case of the plaintiff precisely is that the 'B' scheduled property in the plaint measuring an extent of 8 feet East to West and 66 feet North to South is situated in Survey No,82/10, New Gramanatham No,79/4, which forms part of 'A' scheduled property and that it belongs to him. However, the trial Court, in its judgment dealt with the claim of the plaintiff at length and rejected it.
(3.) THE plaintiff admittedly is having no title deed of his own. However, he relied upon Ex.A2 and Ex.A3-the judgment and decree in O.S.No,321 of 1979 and Exs.A4 and A5-the judgment and decree in A.S.No.1354 of 1992. THE lower Court correctly referred to the suit property in the previous suit O.S.No,321/79 and observed in paragraph 8 that the 'A' scheduled property in this suit and the 'A' scheduled property in the previous suit 321/79 were not one and the same and in support of that, the lower Court also pointed that the Northern boundary was shown as the house of one Gengan, whereas in the present suit 'A' scheduled property was shown as the defendants' house. Similarly, the eastern boundary also does not tally. Over and above that, Ex.C1-the report of the Surveyor, as correctly referred to by the lower Court, would demonstrate and evince that the 'B' scheduled property referred to in the plaint is situated only in Survey No,82/4 and not in Survey No,82/10. Absolutely there is no shard or shred, scintilla or miniscule extent of evidence on the side of the plaintiff that the 'B' scheduled property is situated in Survey No,82/10 as claimed in the plaint. It is a common or garden principle of law that the burden of proof is on the plaintiff to establish the case and he cannot simply fob off his burden on the defendant. The lower Court also referred to the fact that the 'B' Scheduled property described in the plaint actually comes under Survey No,82/4, which was allotted by the Collector in favour of the defendants under the scheme for providing houses for Harijan and that said area was converted as Gramanathan, as per the proceedings of the Collector, dated 31.12.1997.;