Whether the plaintiffs suing in ejectment are to succeed only on the strength of the title that they establish, whether the plaintiffs can be relieved from any part of the burden of proving their title merely on the ground of lapse of time, and whether the claim of the plaintiffs can be upheld picking holes in the defence of the defendants?

This second appeal is filed against the judgment and decree of the Additional District-cum-Chief Judicial Magistrate, Tuticorin, dated 31/10/2002 passed in A.S No.70 of 2002 reversing the judgment and decree of the District Munsif, Srivaikuntam, dated 23/08/1985 passed in O.S No.539 of 1981.

The case of the plaintiffs is that the suit property originally belonged to one Habib Mohammed. After his death, his three sons namely Fakir Mohideen, Abdul Khader and Aliyar have equally divided the property and were enjoying the property. One of the sons of Habib Mohammed, viz. Abdul Kader also died. After the death of Abdul Khader, his brother Aliyar requested his nephew Mohammed who had also lost his wife and intended to marry his brother's wife Nagore Ummal and he had orally gifted his share in favour of the said Mohammed. Thereafter, the said Mohammed married Nagore Ummal and is in continuous possession and enjoyment of the 2/3rd share of the suit schedule property, viz., 1/3 rd share of Aliyar and 1/3rd share of the said Nagore Ummal and was living in the suit scheduled property.

The first plaintiff is the daughter of the first wife of the said Mohammed. Mohammed Habib and Mohammed Bhukari are the sons of Abdul Khader. To incur the expenses of Sugarvan, their sister mortgaged their share to one Mohammed Bhukari, on 03/11/1943 along with Fakir Mohideen, another co-sharer. The said Mohammed Mohideen died even before the redemption of the mortgage. The mortgage money was paid by the plaintiff, the wife and sister of the deceased mortgagor, who endorsed the receipt of the mortgage money. Later, the plaintiff obtained a gift from said Fakir Mohideen, Mohammed Habib and Mohamed Buhari son of Abdul Khader.

During the year 1966, the first defendant's husband requested the husband of the first plaintiff to lease out the property, which was accepted for a monthly rent Rs.5/- and he has been staying in the house. During the year 1967, the husband of the first plaintiff died. During the year 1968, the husband of the first defendant also died. Therefore, the other defendants were paying the rent till 1979 and thereafter, stopped paying rent. Since the rent is very low, the first plaintiff requested to enter into a rental agreement in her favour and the same was accepted by the first defendant. However, neither she paid the rent, nor vacated the premises. Therefore, the first plaintiff issued a notice, on 20/04/1981 to the first defendant, but she sent a reply with false allegations, alleging that she had purchased the property. Hence, this suit.

The written statement was filed by the third defendant disputing the claim of the plaintiff by contending that the suit property originally belonged to one K.M.Fakir Mohideen. The said Fakir Mohideen during the year 1935 received a sum of Rs.1,000/- from the husband of the first defendant Syed Mohammed and he had orally handed over possession of the property in favour of the first defendant's husband. After that, her husband was in possession and enjoyment of the property. In 1937, her husband paid a further sum of Rs.4,000/- in favour of the K.M.Fakir Mohideen and after receiving the said amount, he orally sold the property in favour of the first defendant's husband and he was in possession and enjoyment of the property and also paid kist for the said property. He died in the year 1968. The defendants are his legal heirs. After the death of the first defendant's husband, the defendants are in absolute possession and enjoyment of the property. In the year 1972, the first defendant gifted the property in favour of the defendants 2 to 4 orally and they were in possession and enjoyment of the property. Further, the defendants are in continuous possession and enjoyment of the property. They also ousted the title by adverse possession. The first plaintiff requested the first defendant to marry her relative to her son. When the same was not accepted, she filed the frivolous suit. Hence, prayed for dismissal of the suit.

After receipt of the written statement, the trial Court framed the following issues:- 1. Whether the suit property originally belonged to the plaintiff? 2. Whether the first defendant is the lessee in respect of the suit property from the year 1966? 3. Whether the defendants are entitled to pay rent or compensation to the plaintiff? 4. Whether the first defendant is a necessary party to the suit? 5. Whether the plaintiff is entitled to future income? 6. Whether the defendants 2,3 and 4 are the owners of the suit property?

Whether the defendants 2, 3 and 4 are entitled to possession of the property by claiming adverse possession?

To what other relief is the plaintiff entitled to? 7. The following additional issues framed by the trial Court on 13/06/1985:- 1. Whether deceased plaintiff Jaina @ Jayan is represented in the title? 2. To what other reliefs? 8. During the trial, on the side of the plaintiffs, three witnesses were examined as PW1 to PW3 and documents Exs.P1 to P18 were marked. On the side of the defendants, the first defendant was examined as DW1 and the third defendant was examined as DW2 and one Ramalinga Naidu was examined as DW3 and 42 documents were marked as Exs.B1 to B42.

The trial Court after analysing the oral and documentary evidence, dismissed the suit.

Against which, the aggrieved party namely the plaintiffs filed an appeal in AS No.70 of 2002 on the file of the Additional District-cum-Chief Judicial Magistrate, Tuticorin. The first appellate Court allowed the appeal by reversing the judgment and decree of the trial Court. Against which, the defendants filed S.A.No.1533 of 1987 on the file of the Madras High Court. The Hon'ble Madras High Court allowed the appeal and remanded the appeal back to the Lower Appellate Court for disposal in accordance with law. Thereafter, the Lower Appellate Court, by its judgment and decree, dated 31/10/2002, allowed the appeal and granted the relief of declaration and recovery of possession and also ordered that the income from the date of petition. The date of petition will be determined when the action is taken by the plaintiffs by filing a petition under Order 20 Rule 12 CPC and also granted one month time to vacate the property.

Against which, the present second appeal has been filed by the plaintiffs as appellants.

While admitting this second appeal, the following substantial question of law was framed by this Court for consideration:- “Whether the plaintiffs suing in ejectment are to succeed only on the strength of the title that they establish, whether the plaintiffs can be relieved from any part of the burden of proving their title merely on the ground of lapse of time and as such, whether the claim of the plaintiffs can be upheld picking holes in the defence of the defendants?”

The learned counsel appearing for the appellants contended that the suit scheduled property was purchased by the husband of the first defendant as early as on 1937. Ever-since then the first defendant's husband was in possession and enjoyment of the property. Subsequently, after his death, his wife, the first defendant was in possession and enjoyment along with the defendants 2 to 4. Thereafter, the first defendant orally gifted the property in favour of the defendants 2 to 4. In support of the same, they filed Exs.B1 to B42 kist receipts paid by the defendants.

The Lower Appellate Court has decreed the suit assuming as it were that the case of the respondents 1 to 3 were true and again assuming that the entire defence of the appellants is not true. Except Ex.A1, the plaintiffs did not produce any other documents in support of the alleged title. Ex.A2 is the endorsement, which disclosed that it would have been definitely created. Subsequently, with a view to clothe the 1st plaintiff with title, there is no need or occasion to recite the flow of title to the 1 st plaintiff in Ex.A2. Ex.A2 is an unregistered and has been ante-dated with a view to grab the property. The 1st plaintiff has not disclosed the date, month or year of the transaction of the gift. The oral gift is not supported with delivery of possession. The title of the suit property was not properly explained by the plaintiffs.

The First Appellate Court assumed that Fakir Mohideen referred to in the plaint as K.M.Fakir Mohideen is definitely not supported by any acceptable evidence on record. PW2 referred to a written gift contrary to the pleadings of the plaintiffs. He has also clearly stated that he has not aware as to who resided in the suit property after 1956 and he has admitted that he has not aware to whom the defendants paid rent. The Lower Appellate Court having found that the sale value to the tune of Rs.4,000/- can be effected only through a registered instrument and in the instant case, the appellants have perfected title by adverse possession by open and continuous possession over a statutory period. PW2 is an interested witness and the same was not noticed by the Lower Appellate Court. None of the documents produced are sufficient to conclude that the appellants or Syed Mohamed were not residing in the suit property prior to the date of the alleged lease. Exs.A10, A11 and A18 were not proved in any manner known to law and the other documents did not disclose that Syed Mohammed was not residing in the suit property earlier. Ex.B27 shows that a child was born to Syed Mohammed in the suit property even in the year 1937. The chain of property tax and other receipts produced for long period, prior to the date of the alleged lease are destructive to the case of the respondents 1 to 3. These have been lightly brushed aside by the Lower Appellate Court. The reason stated is not satisfactory and not worth of acceptance. The house taxes have been paid ever-since 1956 continuously and the respondents 1 to 3 failed to produce even a single tax receipts to get over the difficulty, a vague plea has been raised that the appellants are permitted to pay the tax as the rent was low. This is not established by any acceptable evidence.

The learned counsel appearing for the respondents 5 to 13 stated that the judgement and decree of the First Appellate Court is proper. He reiterated the contention made in the plaint and contended that the order of the First Appellate Court is well reasoned one and there is no ground available to interfere with the judgment and decree of the first appellate Court and the second appeal is liable to be dismissed.

Heard the learned counsel on either side and perused the materials available on record.

The deceased first plaintiff namely Jaina @ Jainambu Ummal, the mother of the plaintiffs 2 to 4 filed the suit for the relief of declaration of her title to the suit property, recovery of possession, past profit of Rs.120/- and also for future profits till the date of delivery of possession.

The plaintiff’s title is built upon a series of oral transactions extending over several decades viz., oral partition among the sons of Habib Mohammed, oral gift by Aliyar to Mohammed and subsequent gifts by Fakir Mohideen, Mohammed Habib and Mohammed Bukhari to the plaintiff after she redeemed the mortgage.

Therefore, every link in the chain of title must be proved. If any one link fails, the plaintiff’s title becomes doubtful. This Court has to see whether the gift of Aliyar’s title, Aliyar’s oral gift, Mohammed’s acquisition of title and the subsequent gifts in favour of the first plaintiff was valid.

Ex.A1 is a mortgage deed dated 03.11.1943 said to have been executed by Fakir Mohideen, Mohammed Habib and Mohammed Bukhari in favour of one Mohammed Mohideen for a sum of Rs.1,000/-. The recitals disclose that 2/3rd share in the house property was mortgaged to meet the marriage expenses of the sister of executants 2 and 3.

The plaintiff further claims that she redeemed the mortgage executed by Fakir Mohideen, Mohammed Habib and Mohammed Bukhari in favour of Mohammed Mohideen. The endorsement acknowledging receipt of the mortgage amount is stated to have been made by wives and sisters on behalf of the mortgagors. Significantly, the endorsement also contains a recital that the co-sharers had gifted the property to the plaintiff. Such a recital appearing in a receipt for redemption creates serious doubt regarding its authenticity and evidentiary value.

Even assuming that the plaintiff had discharged the mortgage debt, mere payment of the mortgage amount would not confer title upon her. To establish ownership, she was required to prove the alleged gift in accordance with law. However, none of the co-sharers or persons are competent to speak about the alleged gift have been examined. Therefore, the plaintiff failed to prove the gift transaction.

Further, the very title of Habib Mohammed and his sons over the suit property has not been established by any documentary evidence. The defendants have specifically denied that the property belonged to Habib Mohammed and have asserted that it originally belonged to K.M.Fakir Mohideen. In view of such specific denial, the burden squarely rested upon the plaintiff to prove that the suit property originally belonged to Habib Mohammed and thereafter devolved upon his three sons. No revenue records, tax receipts, title deeds or other contemporaneous documents have been produced to substantiate such claim.

On the contrary, the defendants have produced revenue records standing in the name of Fakir Mohideen. Though the plaintiff attempted to explain that Fakir Mohideen was one of the sons of Habib Mohammed, no satisfactory explanation has been offered as to how the revenue records came to stand exclusively in the name of Fakir Mohideen when, according to the plaintiff herself, other co-sharers were also entitled to the property.

When a party seeks a declaration of title and consequential recovery of possession, the burden lies entirely upon the plaintiff to establish his or her title by cogent and acceptable evidence. The plaintiff must succeed on the strength of his or her own case and not on the weakness of the defendant’s case.

Mere lapse of time or antiquity of the claim does not relieve the plaintiff from proving the title. A declaration of title cannot be granted unless the plaintiff establishes a valid and lawful source of title either through documentary evidence or by proving acquisition by prescription through continuous, open, hostile, uninterrupted and exclusive possession for the statutory period. In the present case, the plaintiff’s claim is found upon a chain of oral transactions, namely oral partition, oral gifts and redemption of mortgage. Each link in such chain must be independently established. Failure to prove any one of the essential links renders the entire claim of title doubtful.

Though a gift (Hiba) under Mohammedan Law may be oral, its validity depends upon proof of (i) a clear declaration of gift by the donor, (ii) acceptance by the donee, and (iii) delivery of possession. In the absence of satisfactory evidence regarding these essential ingredients, the alleged oral gifts cannot be accepted as conferring title.

The plaintiff has failed to produce revenue records, tax receipts, mutation entries or other contemporaneous documents establishing that the suit property originally belonged to Habib Mohammed or that title subsequently devolved upon the alleged donors. Likewise, there is no acceptable evidence showing delivery of possession pursuant to the alleged oral gifts or mutation of the donee’s name in the revenue records.

The plaintiff has not spoken about whether any of the legal heirs of Late.Habib Mohammed or their descendants are still alive or have passed away. No attempt has been made to disclose their whereabouts or status. Further, the plaintiff has failed to produce any material or documentary evidence to establish that such persons were unavailable or that she was unable to secure their evidence before the Court. In the absence of such explanation, the non-examination of the surviving legal heirs or their descendants, who would have been the best persons to speak about the alleged oral partition and gift, gives rise to an adverse inference against the plaintiff’s case.

The plaintiff relied upon certain documents to show that the defendant’s husband was residing elsewhere prior to 1966. However, it is an admitted fact that the defendant’s husband had two wives. Therefore, mere proof of his residence at another place does not disprove the defendant’s case regarding possession and enjoyment of the suit property.

Further, the witnesses examined by the plaintiff are not competent to prove the alleged oral gift. No documentary evidence has been produced to corroborate the transaction. Significantly, neither witness was able to state the exact date, month, or year of the alleged gift, nor could they speak about the circumstances under which possession was delivered pursuant to the gift. Their knowledge was admittedly based only on what they had heard from others and not on their personal knowledge. Consequently, the evidence of these witnesses are purely hearsay in nature and does not constitute reliable or conclusive proof of the plaintiff’s title or the alleged oral gift.

Therefore, the plaintiff has not discharged the burden of proving title. The mere failure of the defendants to establish adverse possession or any independent title does not improve the plaintiff’s case. A decree for declaration cannot be granted unless the plaintiff affirmatively prove title by acceptable evidence.

Accordingly, the plaintiff having failed to establish title to the suit property, the relief of declaration and recovery of possession cannot be granted.

The defendants have established their long continuous possession and occupation of the property by producing house tax receipts and other supporting documents. However, they have failed to prove their plea that the suit property was acquired by way of oral sale. Mere proof of possession does not confer title. The defendants are not denying their obligation to establish their title, if any, in the manner known to law by adducing legally admissible evidence in accordance with the procedure prescribed by law.

Since the respondents herein not proved the case, the Trial Court appreciated the evidence and dismissed the suit, but the First Appellate Court without going into the merits of the plaintiffs' case, only blamed the defendants that they failed to prove their adverse possession and allowed the suit and also declared that the plaintiffs are the original owners and granted the relief of recovery of possession and compensation, which is not proper. So, the judgment and decree of the First Appellate Court are hereby set aside and the judgment and decree of the trial Court is confirmed. Accordingly, the substantial question of law is answered.

In the result, this second appeal is allowed and the judgment and decree of the First Appellate Court are set aside and the judgment and decree of the trial Court is restored. No costs.