2010 (4) TMI 1230 - HC - Indian Laws

Summary

Issues Involved:
1. Whether the Courts below are correct in placing the burden on the Defendants to prove the case of the Plaintiff, especially when the relief sought for is one of declaration of titleRs.
2. Had not the Courts below committed an error in law in relying upon the Commissioner's Report which overlooked the discrepancies in the plan submitted by the Firka Surveyor and the Municipal SurveyorRs.

Summary:

Issue 1: Burden of Proof
The Appellants contended that the Courts below incorrectly placed the burden of proof on the Defendants to establish the Plaintiff's title. The Respondent argued that the Plaintiff had established her title through oral and documentary evidence. The Trial Court framed five issues and the Appellate Court framed six points for determination, both concluding that the burden was not shifted to the Defendants. The Plaintiff provided evidence through Exs. A.1 to A.7, while the Defendants presented Exs. B.1 to B.3. The Advocate-Commissioner's reports (Exs. C.1 to C.4) supported the Plaintiff's claims. The Courts held that the Plaintiff had established her title to 'A' and 'C' schedule properties and the common cart track in 'B' schedule property. The Defendants' subsequent Sale Deed (Ex. B.2) was found to contain incorrect and false averments, and the Defendants were estopped from claiming exclusive rights to the common cart track. Thus, the substantial question No. 1 was answered in favor of the Respondent.

Issue 2: Reliance on Commissioner's Report
The Appellants argued that the Courts erred in relying on the Commissioner's Report, which overlooked discrepancies in the plans submitted by the Firka Surveyor and the Municipal Surveyor. The main dispute involved the 'B' schedule property (common cart track) and alleged encroachments. Both parties purchased their properties from common vendors, with the western boundary described as an 18 links common cart track. The First Appellant's subsequent purchase (Ex. B.2) was found to contain false averments, and the vendors had no right to sell the common cart track. The Courts concluded that the Plaintiff's title and rights in the common cart track were established, and the Defendants could not claim exclusive rights based on Ex. B.2. The substantial question No. 2 was answered in favor of the Respondent.

Conclusion:
The High Court confirmed the concurrent findings of the lower Courts, holding that the Plaintiff had established her title and rights in the common cart track. The Defendants' claims based on Ex. B.2 were dismissed as legally unsustainable. The Second Appeal was dismissed with no order as to costs.