Govindarajulu Naidu vs Arumuga Konar and others

T. Raja, J.—The present Second Appeal has been filed by the appellant/plaintiff, questioning the correctness of the Judgment and decree,

dated 27.09.2005, passed by the Principal Sub Court, Villupuram, in A.S. No. 2 of 2002, whereby, the judgment and decree passed in favour of

the plaintiff by the Principal District Munsif Court, Ulundurpet, in O.S. No. 88 of 2001 on 03.05.2002, was reversed. The plaintiff filed the suit in

O.S. No. 88 of 2001 on the file of the Principal District Munsif Court, Ulundurpet, seeking for a decree of declaration and permanent injunction in

respect of the suit property and for costs on the basis that the suit property originally belonged to the plaintiff''s father by name Venkatasamy, who

constructed a thatched hut in the suit property and was also paying the house tax for the same. After constructing a house in a part of the land, the

rest of the portion was left open as a garden. The property was enjoyed by the plaintiffs father for nearly 30 years and thereafter, he died leaving

behind his wife Kamala Ammal and the only son - the plaintiff/Govindarajulu Naidu. The plaintiff, being the only legal heir of Venkatasamy Naidu,

has become the absolute owner of the suit property. The first defendant is the father of defendant Nos. 2 to 3. The defendants, whose property is

on the southern side of the plaintiff''s property and who purchased an extent of land measuring East West 40'' and North South 30'' from the father

of the plaintiff on 28.11.1988 for a valid consideration of Rs. 4,800/-, are trying to trespass into the suit pathway/lane measuring about 4'' in

breadth. The defendants have no right whatsoever on the suit lane which is being used by the plaintiff for ingress and egress of the plaintiff''s family

members. Per contra, the defendants/respondents filed a written statement, stating that the suit was not maintainable for the reason that the UDR

patta issued in favour of the plaintiff was not valid and true. It is further stated that, on the southern side of the plaintiff/appellant''s property and in

the land lying in S. No. 192, the defendants had purchased an extent of land measuring East West 40'' and North South 30'' from the plaintiff''s

father on 28.11.1988. Only after the said purchase, the defendants had constructed a hut in the suit property in a portion of the same and the rest

is being enjoyed as garden. On the northern side, there is a lane left out measuring 4'' in breadth. This is being maintained by the defendants for the

ingress and egress of men and cattle. Though the plaintiff was originally using the northern end of the property for drainage, after the dispute

between the plaintiff and the defendants, now, the plaintiff/appellant is using the disputed 4'' lane for drainage purpose. Thus, the suit laid out of

enmity as against the defendants is liable to be dismissed.

On these facts in issue, the matter was taken up for trial. The plaintiff/appellant produced Exs. A1 to A14 and examined PWs-1 and 2. On the

side of the defendants/respondents, DWs-1 and 2 were examined and Exs. B1 to B11 were marked. By framing an issue as to whether the

plaintiff/appellant was entitled to have a decree for declaration and injunction and for costs, and after analysing the evidence adduced by both sides

and taking judicial note of the admission made by the defendants, who would admit that the property of the plaintiff is lying on the northern side and

he is enjoying the house property and the vacant site surrounding the same, and that in respect of the property lying in S. No. 615/4, the

defendants had no right or title, the trial court ultimately decreed the suit as prayed for by holding that, in the light of the clear admission of the

defendants themselves, the plaintiff has to succeed. However, on appeal, the lower appellate court reversed the judgment of the trial court by

observing that the dispute is only with regard to 4'' lane lying between the property of the plaintiff and that of the defendants and that, in a case of

this nature, an admission by a layman witness to the effect that he has no right or title in respect of the suit lane cannot be taken into consideration.

In my considered opinion, the lower appellate court has not approached the matter in issue in a proper perspective. It must be noted that the

point for consideration before both the courts below was whether the 4'' suit lane was properly described by definite metes and bounds in the

plaint schedule. The conclusion of the lower appellate court that the plaintiff has not described the suit lane in the plaint schedule with relevant

boundaries and resurvey number and that no document of title was produced in respect of the suit lane and that further, no advocate commissioner

was appointed to locate and identify as to in whose possession and in whose part of the land the disputed lane lies, is absolutely baseless, for, it is

trite law that an admission, being better piece of evidence, does not require any proof. The Apex Court, in Divisional Manager, United India

Insurance Co. Ltd. and another v. Samir Chandra Chaudhary (2005-4 L.W. 498), while dealing with evidentiary value of an admission u/s 31 of

the Indian Evidence Act, 1872, while holding that admission is the best piece of evidence against the person making such admission, observed

thus:-

... it is true that evidentiary admissions are not conclusive proof of the facts admitted and may be explained or shown to be wrong; but, they do

raise an estoppel and shift the burden of proof placing it on the person making the admission or his representative-in-interest. Unless shown or

explained to be wrong, they are an efficacious proof of the facts admitted.... The effect of admission is that it shifts the onus on the person admitting

the fact on the principle that what a party himself admits to be true may reasonably be presumed to be so, and until the presumption is rebutted, the

fact admitted must be taken to be established...

Further, the following observation of the Apex Court in Karam Kapahi and Others Vs. Lal Chand Public Charitable Trust and Another, , may also

be useful to be quoted hereunder:-""38. In this connection, it may be noted that order 12 Rule 6 was amended by the Amendment Act of 1976.

Prior to amendment the Rule read thus:

Judgment on admissions. - Any party may, at any stage of a suit, where admissions of facts have been made, either on pleadings or otherwise,

apply to the Court for such judgment or order as upon such admission he may be entitled to, without waiting for the determination of any other

question between the parties and the Court may upon such application make such order or give such judgment, as the Court may think just.

In the 54th Law Commission Report, an amendment was suggested to enable the Court to give a judgment not only on the application of a

party but on its own motion. It is thus clear that the amendment was brought about to further the ends of justice and give these provisions a wider

sweep by empowering judges to use it ex debito justitial, a Latin term, meaning a debt of justice. In our opinion the thrust of the amendment is that

in an appropriate case, a party, on the admission of the other party, can press for judgment, as a matter of legal right. However, the Court always

retains its discretion in the matter of pronouncing judgment.

On the present case being examined in the light of the principles laid down by the Apex Court governing the effect of admissions as adverted to

above, it is seen that, admittedly, the plaintiff was originally owning the entire land in which the house of the plaintiff and that of the defendants

situate. It is also an admitted fact that the defendants purchased an extent of land measuring East West 40'' and North South 30'' from the

plaintiff''s father on 28.11.1988 for a valid consideration of Rs. 4,800/-. After the sale in their favour, the defendants constructed a hut in the suit

property in a portion of the same and the rest is being enjoyed by them as garden. In respect of the disputed lane measuring about 4'' in breadth

lying on the northern side, based on their own sale deed dated 28.11.1988, the defendants could have satisfied the court by disproving the case of

the plaintiff/appellant that the disputed 4 also was sold away by the plaintiffs father in favour of the defendants. When the plaintiff, who filed the suit

for declaration and permanent injunction in respect of the suit property/lane, specifically made a claim that the suit lane with 4'' breadth is being

encroached upon by the defendants who have no title since the plaintiff''s father did not sell the suit lane in favour of the defendants through the sale

deed dated 28.11.1988, legally speaking, the plaintiff appellant has satisfactory discharged his onus and, as a result, the burden shifts on the

defendants to disprove the case of the plaintiff. Apart from that, the defendant, in his own admission before the trial court, would admit that the

plaintiff enjoys the house property and the vacant site surrounding the same. The second admission made by the defendant is further clear that in

respect of the suit lane in S. No. 615/4, the defendants had no right or title.

It is settled law that in a suit for title or permanent injunction, if the defendant comes to the witness box and admits the case of the plaintiff, the

benefit of the said admission enures to the plaintiff. Section 33 of the Indian Evidence Act also states that evidence given by a witness in a judicial

proceeding, or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a

later stage of the same judicial proceeding, the truth of the facts which it states. Therefore, in this case, the admission made by the defendant is

legally admissible against him.

In these circumstances, when the trial court, by taking note of the said specific admission by none else than the defendant himself, rightly decreed

the suit, the first appellate court by absolutely drawing a wrong inference that too from the proved and admitted facts, erroneously disturbed the

judgment of the trial court. Undoubtedly, the impugned judgment and decree of the first appellate court fall within the well recognized exceptions,

calling for interference by this court, as outlined in Hero Vinoth (minor) Vs. Seshammal, and accordingly, they are liable to be set aside. In this

context, para-24(iii) of the said case law is relevant to be extracted below:

(iii) The general rule is that High Court will not interfere with concurrent findings of the Courts below. But it is not an absolute rule. Some of the

well recognized exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn

wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to

''decision based on no evidence'', it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the

evidence, taken as a whole, is not reasonably capable of supporting the finding.

The second exception outlined by the Hon''ble Apex Court in the above referred case law makes it clear that the courts should not draw any

wrong inference from the proved facts by applying the law erroneously. In the present case, the plaintiff/appellant approached the court for

declaration and permanent injunction by producing relevant and acceptable evidence and he has sufficiently established the position that the

defendants had no right or title in respect of the suit lane having 4'' breadth running in between the property of the plaintiff and that of the

defendants. When the clear admission of the defendant also proceeds in the same line, the learned first appellate court on the wrong premises that

the plaintiff has not described the suit lane by definite metes and bounds under the plaint schedule and that no document of title was produced in

respect of the disputed lane and that, further, no advocate commissioner was appointed to locate and identify as to in whose possession or in

whose part of the land the disputed lane lies, proceeded to disturb the well considered judgment of the trial court ignoring the vital fact that the trial

court rightly concluded the issue in favour of the plaintiff based on the admission of the defendant supporting the case of the plaintiff. In view of the

above reasons, by answering the question of law in favour of the appellant, the judgment and decree passed by the lower appellate court are

reversed, restoring the verdict of the trial court. In the result, the Second Appeal is allowed, however, there will be no order as to costs.