9911796707
TMI Blog1989 (8) TMI 365X X X X Extracts X X X X X X X X Extracts X X X X ..... tween two sisters. One Shir P.S. Chouhan, an Indian Christian, admittedly owned vast properties including houses, outhouses and 5.74 acres of open land at Gorakhpur, Jabalpur. He was unmarried and issueless and, therefore decided to give-away the said properties to his two sisters, Mrs. Dayabai Lakshmanan and Mrs. Grace Pritabai Morris, in equal shares and for that purpose executed a registered gift deed on 8-4-1935. Mrs. Dayabai Lakshmanan is now survived by appellants Nos. 2, 3 and 4 while Mrs. Grace Pritabai Morris is survived by appellant No. 1 and respondent No. 3, her two danghters. There had been no partition between two sisters of Shri P.S. Chouhan and, therefore, the properties continue to be joint and undivided between them. It, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present plot No. 434 / 5, Mouza Gorakhpur, Jabalpur. From the descriptions of the sold plot given in the sale-deed, it appears that it is surrounded by diversion plots Nos. 276, 277, 278 and 279 on the North; open land of Mrs, Lalita James at the South-West; quarters of Mr. Shrivastava, Ajit Das and Arun Kumar Das,, at the East and diversion plots Nos. 273 and 432 at the West. From the sale-deed (para-1) it appears that this plot is recorded as Plot No. 434/2 in Revenue Case No. 4 of 1961-62 which the vendor has explained to be an error. The respondents-plaintiffs allege that after purchase they started digging foundation on a part of the suit land to raise structure on it when one Shri Balram claiming to be the agent of appellant No. 1 obj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owner of the said plot and validly sold the same to respondents-plaintiffs. According to the Court, though the plaintiffs were put in possession of the suit plot, they have themselves given-up the said possession. On these findings the suit was decreed and hence this appeal. 3. It is well settled rule of law that burden of proving his case to obtain a decree from the Court is always on the plaintiff who must adduce reliable and admissible evidence for the said purpose. Section 102 of the Evidence Act contains the broad rule in this behalf and, therefore provides the legal guidelines in the matter. As a necessary corollary to the aforesaid rule is the rule that the plaintiff must succeed on the strength of his own title and not be sustaine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the exclusive ownership of any particular part of the joint property. Even if it was to be assumed that the shares of two sisters of Shri P. S. Chouhan, namely, Mrs. Dayabai Lak-shmanan and Mrs. Grace Pritabai Morris were half and half in the property, each of them would have the right of enjoyment and possession equal to the other. But as long as the property is not devided, neither of them would be entitled to any particular part of the property. A transferee from such a co-owner would not be in a better position than the co-owner himself and hence he would also not be entitled to claim exclusive possession of any particular part of the joint property. Section 44 of the Transfer of Property Act gives legislative sanction to this princ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not in possession of the suit property they cannot be joint in possession of the suit property or any other joint property even during the pendency of the partition suit on the principle stated by this Court in Full Bench decision, in Ram-dayal v. Maneklal, 1973 MPLJ 650 : (AIR 1973 Madh Pra 222). This would, in the opinion of this Court, be sufficient to dispose of this suit for separate possession of undivided property. 5. In spite of it, application of Rule of evidence as stated in para-3 above does not entitle the respondents-plaintiffs to a decree for possession, even if the same was legally possible. On the aforesaid principle it was the burden of the respondents-plaintiffs to first help this Court in identifying the suit property. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -plaintiffs claim title based on sale deed dated 10-8-1964 and they would not be entitled to anything more than what they have purchased, it was their obligation to file the sale deed to enable this court to properly identify the suit plot and to ascertain whether they have the necessary title. They cannot hope to succeed only by pleading and proving the area of the suit plot. It is not the policy of law to leave matters vague and thereby create litigation within litigation. Then simply because the area of the two plots is the same, it cannot be held that the respondents-plaintiffs were owners of the suit plot. They have clearly failed to discharge the burden of proof which initially lay on them. 6. In view of the aforesaid, it is not nece ..... X X X X Extracts X X X X X X X X Extracts X X X X
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