Subbu Gounder and Pavayee vs P. Kalimuthu, Kandasamy, K. Palaniappan and K. Murugesan

G. Rajasuria, J.—This Second appeal is focussed animadverting upon the judgment and decree passed in A.S. No. 84 of 2008 dated

30.10.2008, on the file of the Subordinate Judge, Tiruchengode, confirming the judgment and decree passed in O.S. No. 409 of 1997 dated

31.01.2006 on the file of the District Munsif Court, Tiruchengode. The parties are referred to hereunder according to their litigative status and

ranking before the trial Court.

Compendiously and concisely, the germane facts absolutely necessary for the disposal of this Second Appeal, would run thus:

(a) The plaintiffs, who are the appellants herein filed the suit seeking the following reliefs:

(i) To declare the right of easement of the plaintiffs to use the suit cart track from the Velagoundampatti to Vaiyappamalai road to reach their lands

and house in S. Nos. 162/1C, 162/2 and 163/1.

(ii) To permanently injunct the defendants and their men from in any way interfering with the use of the suit cart track by obstructing or obliterating

the same.

(iii) To grant mandatory injunction by directing the defendants to restore the C.D.F. Cart track portion shown in the rough plan to its original

position within the stipulated period; and

(iv) For costs.

(Extracted as such)

setting out various averments, the gist and kernel of them would run thus:

Ex. A1 is the sale deed dated 08.06.1995, executed by the plaintiff in favour of his son-in-law incorporating therein some reference about the suit

cart track described hereunder:

VERNACULAR (TAMIL) PORTION DELETED

and which is also found described in the schedule of the plaint. According to the plaintiffs, the defendants obstructed the cart track which is situated

to the south of the defendants'' property. Hence the suit.

(b) Per contra, the defendants in a bid to torpedo and pulverise, shoot down and mincemeat the averments/allegations in the plaint, filed the written

statement, the warp and woof of it would run thus:

Ex. A1 is a self serving document and the defendants and their predecessors in title were not parties to it. Ex. A1 emerged shortly before the filing

of the suit, whereas, the defendants'' document Ex. B1 dated 02.03.1960, would exemplify and demonstrate that to the south of the defendants''

property, their existed only a three feet width pathway. Accordingly, they would pray for the dismissal of the suit.

The trial Court framed the issues.

Up went the trial, during which the plaintiff/Subbu Gounder examined himself as P.W.1 along with P.W.2/Kaliappa Gounder and Exs. A1 to A8

were marked; and the second defendant/Kandasamy examined himself as D.W.1 and Exs. B1 to B22 were marked. Exs. C1 to C3 were marked

as court documents.

Ultimately the trial Court dismissed the suit as against which the appeal was filed for nothing but to be dismissed confirming the judgment and the

decree of the trial Court.

Challenging and impugning the judgments and decrees of both the fora below, this second appeal has been focussed on various grounds and

also suggesting various questions of law.

My learned Predecessor formulated the following substantial questions of law:

(a) Whether the Courts below are right in law in non-suiting the appellants especially when they have discharged the burden of proving the

existence of suit cart track by virtue of recitals found under Ex. A1 coupled with the evidence of P.W.1 which is further corroborated by Exs. C1

and C2?

(b) Whether the Courts below are right in law in non-suiting the appellants by relying only upon recitals found upon Exs. B1 and B2 contrary to the

dictum laid down by this Court that recitals as to boundaries mentioned in the documents not relating to the suit property is not admissible in

evidence unless the executants of the documents are examined?

(Extracted as such)

Heard both.

Ex. A1 is the sale deed dated 08.06.1995 which was executed by the plaintiff in favour of his son-in-law, wherein it is found specified as though

their existed a cart track of 15 feet width to the south of the defendants'' land.

At this juncture, I would like to recollect the following maxim: Res inter alios acta alteri nocere non debet A transaction between two parties

ought not to operate to the disadvantage of a third

It is as thoroughly settled as any other preposition of law could be that a document would not have any binding effect on a third party, unless such

third party is a party to the document. Here unarguably and unassailably, the defendants were not parties to Ex. A1, which emerged only on

08.06.1995, whereas, the suit was filed by the plaintiffs on 05.11.1997. Ex. B1 relied upon by the defendants is dated 02.03.1960 executed by

the plaintiffs'' paternal uncle during the year 1960 and it could rightly be labelled as an ancient document within the meaning of Section 90 of the

Indian Evidence Act. When such is the legal scenario, nothing could be found fault with the ratiocination adhered to by the trial Court which was

confirmed by the appellate Court.

It is quite obvious and axiomatic that revenue records do not speak about any such cart track. As such, the only available evidence before the

Court was Ex. A1. As has been already adverted to by me supra, such a recital in Ex. A1 is a self serving one having no probative force of its own

and a fortiori, both the fora below were correct in not decreeing the suit as prayed for. It is not as though the burden of proof is on the plaintiff:

At this juncture, I recollect the following maxims:

(i) Affirmantis est probare [He who affirms must prove]

(ii) Affirmanti non neganti incumbit probatio: The burden of proof lies upon him who asserts and not upon him who denies.

Along with that, I also recollect the following maxim:

Favorabiliores rei potius quam actores habentur Defendants are held to be in a more favourable position than pursuers.

It is not as though the defendants purely relied upon the boundaries found described in the property specified in Ex. B1. It is for the plaintiffs to

prove their case, which they failed to do. In such a case, the plaintiffs cannot raise their accusative finger as against the defendants. By relying on

the boundary described in Ex. A1, they cannot try to capitalise anything.

On balance, I am of the considered view that there is no perversity or illegality in the judgments and decree of both the Courts below. In the

result,

(a) The first substantial question of law is answered to the effect that the courts below were right in law in not-suiting the appellants herein, because

they did not discharge the burden of proving the existence of the suit cart track as alleged by them in the plaint.

(b) The second substantial question of law is answered to the effect that the courts below were right in law in not-suiting the appellants based on

evidence and the courts below not merely based on the recitals in Exs. B1 and B2.

Accordingly, this Second Appeal is dismissed. However, there shall be no order as to costs.