On whom does the burden of proof lie in a suit for declaration of title, and can the plaintiff succeed on the weakness of the defence?

The 2nd defendant in O.S.No.65 of 2017 and the first defendant in the same suit are the respective appellants in S.A. (MD)Nos.128 of 2022 and 220 of 2023. The trial Court had dismissed the suit after trial. However, the First Appellate Court reversed the findings of the trial Court and decreed the suit, after allowing an application under Order 41 Rule 27 of CPC and taking on record the additional evidence. Aggrieved by the reversal findings rendered by the First Appellate Court, the defendants 1 and 2 have preferred the above two independent Second Appeals.

I have heard Mr.K.Balasundaram, learned Senior Counsel for Mr.R.Thangapandian, learned Counsel for the appellant in S.A. (MD)No.128 of 2022 and second respondent in S.A.(MD)No.220 of 2023, Mr.H.Lakshmi Shankar, learned Counsel for the appellant in S.A.(MD)No.220 of 2023 and second respondent in S.A.(MD)No.128 of 2022 and Mr.S.Vijayakumar, learned Senior Counsel for Mr.M.Kumar, learned Counsel for the contesting first respondent in both the Second Appeals.

The brief facts that are necessary to decide the above Second Appeals are as follows: 3.1.The lands comprised in R.S.No.4/1, to an extent of 35 cents belong to one Kamayeeammal, who had purchased the same under a registered sale deed dated 16.09.1930. The said Kamayee Ammal died intestate leaving behind her husband Sukkuru Thevar and her sons Palaniyandi, Machakkalai, Aiyankalai, Ponniah and Sakasai. All the legal heirs sold the western portion of 29.25 cents to one K.S.Vetrivel, under a registered sale deed dated 11.02.1968. The said K.S.Vetrivel, divided 29.25 cents into 4 house plots and the plaintiff purchased plots bearing numbers 2 and 3 measuring 15.25 cents, under registered sale deed dated 15.11.1970, for valuable sale consideration. The plaintiff has been in possession of the suit property for more than 4 decades. 3.2.The plaintiff being a permanent resident of Chennai used to visit the suit property whenever she came to Madurai. Till first week of August 2011, there was no infiltration by any person. However, within a week, when the plaintiff came to visit she came to understand that some brokers in the locality are trying to enter into the suit property and encumber the suit property. The plaintiff put up a notice in the suit property. Second defendant objected to the same, which led to filing of a police complaint by both parties. The police authorities advised the parties to approach the Civil Court. The plaintiff thereafter, obtained encumbrance certificate and found that the defendants had purchased portions of the suit property and sub-divided them without the knowledge of the plaintiff. 3.3.One of the grandsons of Machakkalai Thevar, by name Subbu, son of Muthu, who was in fact party to the sale deed dated 11.02.1968, had illegally sold 15 cents vide sale deed dated 15.11.1992 in favour of one Siva Subramanian, who in turn sold it to the second defendant on 29.05.1995. Immediately, he had also sold 7 cents to the first defendant, through sale deed dated 10.11.1993 and another six cents to the third defendant by a sale deed dated 28.06.2007. All these three sale deeds are void abinitio. Defendants were never in possession of the property and since they are trying to interfere with the plaintiff's peaceful possession and enjoyment, the suit was filed. 3.4.The suit was resisted by the appellant herein contending that neither the plaintiff nor the plaintiff's predecessors had any right over the suit property. They have set out the mode of purchase from the respective vendors, who claim right to one Periya Kamayeeammal [senior Kamayeeammal] first wife of Sukkuru Thevar. The case of the defendants was that Sukkuru Thevar had married senior Kamayeeammal first and thereafter, he had married another Kamayeeammal [junior Kamayeeammal]. The suit property was purchased only by the senior Kamayeeammal and not junior Kamayeeammal. It is their further case that senior Kamayeeammal and Sukkuru Thevar were blessed with a son by name Muthu Thevar, who was their only legal heir and after the demise of both Sukkuru Thevar and Kamayeeammal, Muthu Thevar became entitled to the suit property by way of inheritance and after the demise of Muthu Thevar, his son Subbu Thevar became entitled to the suit property. Patta was also transferred in his name. Plaintiff was never in possession of the suit property as claimed in the plaint. The plaintiff had purchased from the legal heirs of second wife of Sukkuru Thevar, namely junior Kamayeeammal, who never had any iota of right in the suit property. The sale deeds therefore, do not confer any title in favour of the plaintiffs. Plaintiffs are not entitled to any relief and suit was sought to be dismissed. 3.5.The parties went to trial and on the side of the plaintiff, plaintiff examined herself as P.W.1 and one K.Palani Kumar as P.W.2. Exhibits A1 to A7 were marked on the side of the plaintiff. On the side of the defendants, first defendant was examined as D.W.1 and one S.Raju was examined as D.W.2. Exhibits B.1 to B.11 were marked on the side of the defendants. The third defendant Panchavarnam was examined as C.W.1 and copy of the written statement of the third defendant was marked as Ex.C.1. Also the photostat copy of the Aadhar Card of P.W.2 was marked as Ex.X.1. On appreciation of the pleadings and the oral and documentary evidence adduced by the parties, the trial Court dismissed the suit. 3.6.Aggrieved by the same, the plaintiff preferred A.S.No.38 of 2018 and a Cross Appeal was filed by the first defendant in the said appeal, which was also taken up along with A.S.No.38 of 2018. Plaintiff also took out an application in I.A.No.411 of 2019, under Order 41 Rule 27 of CPC, for adducing additional evidence, namely to mark photostat copy of the sale deed in the year 1930 in favour of Kamayeeammal. The First Appellate Court allowed the appeal, dismissed the Cross Appeal filed by the first defendant and also admitted the documents sought to be adduced as additional evidence by allowing the application filed under Order 41 Rule 27. It is aggrieved by the said judgment of the First Appellate Court that the present Second Appeals have been filed, one by the first defendant and the other by the second defendant.

On 25.02.2022, S.A.(MD)No.128 of 2022, was admitted on the following substantial questions of law:

On 12.04.2023, S.A.(MD)No.220 of 2023 was admitted on the same questions of law that were framed in S.A.(MD)No.128 of 2022 and additionally framing the following substantial question of law:

The gist of arguments of Mr.H.Lakshmi Shankar, learned Counsel for the appellant in S.A.(MD)No.220 of 2023: 6.1.The plaintiff has not produced any acceptable or satisfactory evidence to show physical possession of the suit property, excepting the sale deed in the name of the plaintiff. 6.2.Recitals in the 1968 sale deed and 1970 sale deed cannot amount to gospel truth to establish plaintiff's title as recitals in these documents have no presumptive value. 6.3.The plaintiff has not been able to establish as to how legal heirs of junior Kamayeeammal were entitled to deal with the property which never belonged to junior Kamayeeammal in the first place. 6.4.Pointing out to cross examination of P.W.1, it is contended that the plaintiff expressly admitted the case of the defendants that there were two persons with the same name Kamayeeammal, namely Periya Kamayeeammal and Chinna Kamayeeammal and the suit property belonged to only Periya Kamayeeammal, who had only one son by name Muthu in whose name, admittedly patta passbook was also issued. The patta passbook in Ex.B.6 was never challenged in a manner known to law, within the prescribed period of limitation. 6.5.P.W.1 admits to borewell and electricity connection in the suit property, but feigns ignorance as to who installed it. 6.6.P.W.2 is projected as if he was managing the property. However, there is no pleading in the plaint or evidence in this regard when P.W.1 entered the box. 6.7.Burden being entirely on the plaintiff to establish title, the plaintiff has miserably failed and cannot pick holes in the weakness of the defendant's case to become entitled to a decree in her favour. 6.8.The defendants have been able to establish valid title, having purchased from the lawful and true owners, tracing title to Periya Kamayeeammal and also mutation of records in their names. 6.9.Statutory presumption arises under Section 6 of the Patta Passbook Act equally, Section 114 of the Indian Evidence Act also becomes available in favour of the defendants. 6.10.Cause of action for filing the suit arose atleast in the year 1995, when Subbu Thever, son of Muthu Thevar had sold the property and patta passbook were obtained by the defendants, if not in 1989 itself, when Ex.B.6 patta passbook was issued in the name of Subbu Thevar. Hence, the suit is hopelessly barred by limitation. 6.11.The 1st Appellate Court has erroneously reversed the findings of the trial Court holding that the defendants have not proved the genealogy and ancestry of Subbu tracing title to one person by name Periya Kamayeeammal. In this regard, Mr.H.Lakshmi Shankar, would submit that said findings are erroneous, since P.W.1 has admitted that Subbu Thevar was grandson of Periya Kamayeeammal and Sukkuru Thevar and that the suit property belonged only to Periya Kamayeeammal. 6.12.He would also contend that the First Appellate Court has not appreciated the facts in a proper perspective and has proceeded to render findings on the erroneous premise that the defendants are claiming under Chinna Kamayeeammal, without noticing that it was only the plaintiff who was claiming under Chinna Kamayeeammal and not the defendants. Though the appellant had expressed no objection for allowing the application under Order 41 Rule 27 CPC, the mere fact that no counter was filed and the application was not opposed does not straightaway clothe the plaintiff with the right to rely on the document without proving the said document. Though no counter was filed, the Appellate Court ought to have tested the document with regard to proof and relevancy, before factoring the additional document to allow the appeal, over turning the verdict of the trial Court. 6.13.The First Appellate Court has not even discussed the aspect of possession which was elaborately gone into by the trial Court by taking note of Exs.B.2 to B.11, to hold that defendants alone were in possession of the suit property. In support of his submissions, Mr.H.Lakshmi Shankar has relied on the following decisions: 1. Union of India and others Vs. Vasavi Co-op. Housing Society Ltd., & others, reported in (2014) 2 SCC 269; 2. United India Insurance Co. Ltd., Vs. Samir Chandra Chaudhary, reported in (2005) 5 SCC 784; 3. Vaithilinga Gounder Vs. Kuppusami Gounder, reported in AIR 1963 Mad 137; 4. Madhukar and others Vs. Sangram and others, reported in (2001) 4 SCC 756; 5. Tilak Chand Kureel Vs. Bhim Raj, reported in (1969) 3 SCC 367; 6. Gangamma and others Vs. Shivalingaiah, reported in (2005) 9 SCC 359;

The gist of arguments of Mr.K.Balasundaram, learned Senior Counsel for Mr.R.Thangapandian [S.A.(MD)No.128 of 2022]: 7.1.Apart from Ex.A.1 and A.2, which are documents of the year 1968 and 1970, not a single document has been exhibited between 1970, till date of filing of the suit to establish either title or possession being with the plaintiff. 7.2.Plaintiff who was examined as P.W.1 has categorically admitted to the existence of two Kamayeeammals. 7.3.P.W.2 who claims to have managed the property on behalf of the plaintiff admits to the existence of borewell, which is contrary to evidence of P.W.1 who stated that there is no borewell in the property. The same establishes possession of the defendant's predecessors in interest. The defendants are bona fide purchasers for consideration. 7.4.Ex.B.6 patta issued under the patta passbook Act is prima facie evidence of title in terms of Section 6 of the Patta passbook Act. 7.5.Admission of the opposite party is the best evidence and the case of the defendants has been virtually conceded by P.W.1 in cross examination, thereby disentitling the plaintiffs to any relief. 7.6.Defendants have exhibited overwhelming documentary evidence to establish their possession. 7.7.The First Appellate Court ought not to have allowed the application filed under Order 41 Rule 27 CPC, when the plaintiff had not fulfilled the mandate of Order 41 Rule 27 CPC. 7.8.Even assuming the appellate Court was justified in allowing the application under Order 41 Rule 27 CPC, non-compliance of Rule 28 was fatal and therefore, no reliance could have been placed on the additional documents exhibited by the plaintiff / appellant. 7.9.Mr.Balasundaram, learned Senior Counsel in support of his submissions, placed reliance on the following decisions: 1. Akhilesh Singh @ Akhileshwar Singh Vs. Lal Babu Singh & others, reported in 2018 (3) CTC 883; 2. Corporation of Madras and another Vs. M.Parthasarathy and others, reported in 2018-3-MWN (Civil) 781; 3. Basayya I.Mathad Vs. Rudrayya S.Mathad & others, reported in 2008 (1) CTC 537; 4. Shailendra Kumar Sisodiya & others Vs. Rani Sisodiya @ Ranjana & another, reported in 2024 (7) Scale 39; 5. Union of India Vs. Ibrahim Uddin & another, reported in 2012 (8) SCC 148.

Gist of arguments of Mr.S.Vijayakumar, learned Senior Counsel for Mr.M.Kumar, learned Counsel for the first respondent in both the Second Appeals: 8.1.The appellants have not understood the case of the plaintiff in a proper and right perspective as it was not the case of the plaintiff that there were two Kamayeeammal, but only one from whom the title was traced and the property purchased by the plaintiff. 8.2.Exs.A.1 and A.2. clearly establish title of the plaintiff tracing right up to 1930 document. 8.3.The trial Court had non-suited the plaintiff for non-production of 1930 sale deed, which was cured by taking out an application and the first appellate court has also rightly allowed the application and admitted the 1930 sale deed in evidence and relied on the same to hold title in favour of the plaintiff. 8.4.Patta is not a document of title but only evidences possession and therefore, no amount of reliance could have been placed on a patta issued in Ex.B.6 in favour of Subbu Thevar. 8.5.There is nothing brought on record by the defendants to establish that their vendor / predecessor in title and interest had a valid right to convey the suit property. 8.6.As against adverse findings rendered by the trial Court, no appeals were filed by the defendants. 8.7.Having expressed no objection for allowing the application under Order 41 Rule 27, before the First Appellate Court, it is not open at the Second Appellate Stage to question the document been admitted as additional evidence. 8.8.Referring to Ex.B.8, it is contended that the plaintiff's name was found in the revenue records, even prior to the filing of the suit and hence, the First Appellate Court had rightly affirmed the factum of possession being with the plaintiff. 8.9.In support of his submissions, learned Senior Counsel has relied on the following decisions: 1. Union of India & others Vs. Vasavi Cooperative Housing Society Limited & others, reported in (2014) 2 SCC 269; 2. Nagar Palika, Jind Vs. Jagat Singh Advocate, reported in 1995 3 SCC 426; 3. Dr.N.Mohamed Farook and other Vs. R.Muruga Boobathy, reported in 2020 (5) CTC 161; 4. Kasturi Rengan Vs. Kaayambu (Died) And Abimanyu & others, reported in 2020 (2) MLJ 158; 5. D.Srinivasan Vs. K.Amavasai & others, reported in 2023 (4) LW 54; 6. H.Lakshmaiah Reddy and others Vs. L.Venkatesh Reddy, reported in (2015)14 SCC 784.

I have carefully considered the submissions advanced by the learned Senior Counsels as well as Mr.H.Lakshmi Shankar. I have also gone through the entire records, pleadings, both oral and documentary evidence adduced before the Courts below, judgments of the trial Court and the First Appellate Court as well as the decisions on which reliance has been placed on by the learned Senior Counsels as well as the learned Counsel for the appellant in the present Second Appeals.

The fact that the property was originally purchased by one Kamayeeammal is admitted all round. In and by the sale deed dated 16.09.1930, Kamayeeammal wife of Sukkuru Thevar purchased the suit property. The said document was admittedly not exhibited by either the plaintiff or the defendants during the trial of the suit, though they claimed and traced title only to this very document dated 16.09.1930. In fact, one of the reasons for the trial Court to non-suit the plaintiff was non-production of the original of the said sale deed dated 16.09.1930. No doubt, this was admittedly attempted to be cured by the plaintiff, at the appellate stage, by taking out an application for adducing additional evidence under order Order 41 Rule 27 CPC, about which I will deal with, a little later.

Subsequently, one K.S.Vetrivel appears to have purchased an extent of 29.25 cents or thereabouts from the legal heirs of Kamayeeammal, who had originally purchased the larger extent of about 35 cents in and by sale deed dated 16.09.1930. The plaintiff has purchased suit property which is two plots out of 4 plots formed by the purchaser under the 11.02.1968 sale deed, namely K.S.Vetrivel. Plaintiff purchased the same on 15.11.1970. The plaintiff has exhibited both the 11.02.1968 documents as well as 15.11.1970 documents as evidence on her side. Thus, in short, it is the case of the plaintiff that she derives title from Kamayeeammal, who had originally purchased the property in 1930 and after her demise, her legal heirs sold substantial portion of the property to K.S.Vetrivel on 11.02.1968, from whom the plaintiff had purchased the suit property on 15.11.1970. Admittedly, there has been no pre- suit notice prior to the filing of the suit.

Though there is pleading with regard to complaints having been given by both the parties and the police authorities advising the parties to move the competent civil Court, in the complaint the plaintiff asserts title and interest to the suit property under the above referred documents. The written statement filed by the defendants, meeting and denying the claims of the plaintiff were on the footing that no doubt Kamayeeammal had purchased the property on 16.09.1930, but the said Kamayeeammal was the first wife of Sukkuru Thevar, who was blessed with a son by name Muthu Thevar alone as her only legal heir and that after the demise of the said Kamayeeammal and Muthu Thevar, Muthu Thevar's son Subbu Thevar inherited the suit property and he was in peaceful possession and enjoyment of the same, in his own right including mutation of the revenue records in his name. Ex.B.6 is the patta passbook issued in the name of the said Subbu Thevar, vendor of the defendants.

It is the further case of the defendants in the written statement that the plaintiff's vendors are not the legal heirs of the first wife Kamayeeammal [Periya Kamayeeammal] but only the legal heirs of second wife who was also Kamayeeammal [Chinna Kamayeeammal] and therefore, the vendors under the 1968 sale deed did not have any right or title in the first place, to convey legal or valid title to the purchasers and consequently, the plaintiff cannot claim any right to the suit property. Defendants have also specifically denied the allegation of the plaintiff that she has been in possession ever since her possession in 1970 and it was disturbed only in 2011, at which point of time, the suit came to be filed, citing the same as the cause of action for filing the suit.

Mr.S.Vijayakumar, has argued that the appellants have not understood the case of the plaintiff in the right perspective as it was never the case of the plaintiff, while coming to court that there were two Kamayeeammal in the scene and therefore, there was a confusion with regard to which Kamayeeammal was entitled to the property. It is true that the plaintiff's case, not only in the plaint, but also in her sale deed of the year 1970 as well as in the sale deed of her vendor in the year 1968 proceed on the basis that there was only one Kamayeeammal. There will be no difficulty if this was the factual position and Sukkuru Thevar had only one wife by the name Kamayeeammal, in which case the said Kamayeeammal, would certainly be the only person entitled to the suit property. However, on being put on notice about the plaint allegations and the claim of the plaintiff through 1968 and 1970 sale deeds, defendants have set up a specific defence that there were two Kamayeeammal, both of whom were wives of Sukkuru Thevar and that the 1930 sale deed was in favour of the first wife Periya Kamayeeammal, through whom the defendants have traced title and purchased the property.

It is in this regard that evidence of the parties would assume significance. P.W.1 in her cross examination by the second defendant's counsel has deposed as follow:

From the above admissions of P.W.1 it is clear that the plaintiff has admitted to the defence projected by the defendants by stating that the property belonged only to Periya Kamayeeammal. Thus, if at all the plaintiff had to acquire any valid title to the suit property, she should have traced title to the said Periya Kamayeeammal. However, admittedly, Periya Kamayeeammal had only one son through Sukkuru Thevar by name Muthu Thevar and the said Muthu Thevar had a son by name Subbu Thevar, from whom only the appellants have purchased 7 cents and 15 cents respectively and the remaining 6 cents were purchased by the third defendant. The second wife, Chinna Kamayeeammal through Sukkuru Thevar was blessed with Palaniyandi Thevar, Matchakalai Thevar, Ayankalai Thevar, Ponnaiah Thevar and Sakasai, which is also admitted by the plaintiff. In such circumstances, the plaintiff having admitted that the property was purchased by Periya Kamayeeammal in the year 1930 could not have proceeded to acquire lawful title from the legal heirs of second wife Chinna Kamayeeammal.

The sale deed in favour of Vetrivel was admittedly executed by legal heirs of second wife Chinna Kamayeeammal. It is from the said Vetrivel that the plaintiff has purchased two plots. There is also no evidence with regard to plotting out the subject lands by the said Vetrivel. The plaintiff has therefore, conceded to the case of the defendants by way of categorical admissions in cross examination with regard to the existence of two Kamayeeammals and the factum of Periya Kamayeeammal having purchased the suit property in the year 1930. The said admissions are fatal and suicidal to the case of the plaintiff.

As rightly contended by the learned Counsel for the appellants, the burden was only upon the plaintiff to establish title and possession. I have already discussed how the plaintiff's title is defective and merely because sale deeds in favour of the vendor of the plaintiff and the plaintiff subsequently in the year 1968 and 1970, refer to the certain legal heirs of Kamayeeammal, they can have no evidentiary value or presumption drawn from the said recitals that the vendors under the respective sale deeds were competent to convey the suit property and that they had subsisting right in title and interest in the suit property. On the contrary, to establish their title, the defendants have also relied on the very same sale deed dated 16.09.1930 and claiming that the first wife Periya Kamayeeammal was blessed with only one son by name Muthu Thevar through her husband Sukkuru Thevar and that said Muthu Thevar was survived by only one son Subbu Thevar, in whose name Ex.B.6 patta passbook has also been issued and it is from the said Subbu Thevar that the defendants 1 to 3 have purchased various extents of land. The defendants have also been able to establish that they have mutated the revenue records in their name and thus they have clearly established the factum of being in physical possession of the suit property. 19. Though the plaintiff claims that ever since the purchase in 1970, plaintiff has been in possession and every now and then she used to visit the suit property whenever she comes to Madurai, are all merely her ipse dixit oral evidence. On the side of the plaintiff not a single document has been established to show that physical possession being with the plaintiff and there is no mutation of revenue records in the name of the plaintiff as well. In any event, I have already found that the title of the plaintiff itself is defective and therefore, any amount of possession, even if established, would not be lawful and having not established to be in possession also, the plaintiff is certainly not entitled to a decree of injunction as well. The trial Court has rightly taken note of the admissions of the plaintiff, the documentary evidence filed on either side and came to the conclusion that it was only the defendants who were in possession but the plaintiff not only had no title but also not in physical possession.

In fact in order to establish possession, plaintiff also examined P.W.2, who according to the plaintiff was entrusted with the maintenance of the suit property. Firstly, the factum of the property being under the care of the P.W.2 was not pleaded in the plaint. It is also not the case of the plaintiff while she deposed as P.W.1. P.W.2 was thereafter, introduced in further evidence on the side of the plaintiff. P.W.2 admits to the existence of a borewell and pump set and also admits that he has not put up the same. The Plaintiff, while being examined as P.W.1 states that though she claims that she has been regularly visiting her property, has denied the existence of borewell. Thus, P.W.1 & P.W.2 have not only, by not producing relevant documents, but also, by their admissions in cross examination have virtually conceded the factum of the defendants being in physical possession of the suit property. None of the documents exhibited on the side of the plaintiff, ie.,Exs.A.1 to A.7 establish their title or possession to the suit property in favour of the plaintiff.

Coming to the additional document Ex.A.8, the trial Court has held that the plaintiff, if really had a valid title through the 1930 sale deed, ought to have produced the original sale deed or ought to have atleast taken steps to summon the predecessor in title of the plaintiff to produce the original sale deed. To address this adverse finding against the plaintiff, the plaintiff filed an application under Order 41 Rule 27 of CPC, in the appeal suit filed by the plaintiff, challenging the decree of dismissal granted by the trial Court. Even in the said application, the plaintiff only wanted to mark a certified copy of the 1930 sale deed. No doubt, the appellant in S.A.(MD)No.220 of 2023, did not have any objection for allowing the application. However, it does not imply that the document of the year 1930 can be admitted in evidence, merely because there is no objection on the side of the respondents.

The Court should be satisfied as to the necessity of the additional documents to effectively adjudicate the appeal and even when the Court comes to the conclusion that the document has to be admitted in evidence as additional evidence, the procedure contemplated under Order 41 Rules 27 & 28 of CPC has to be necessarily followed. Admittedly and as rightly contended by Mr.K.Balasundaram, learned Senior Counsel, in the present case, the Appellate Court has not followed the mandate under Order 41 Rule 28 CPC. Merely admitting the document as additional evidence does not meet the scope and mandates of Order 41 Rules 27 and 28 of CPC. The document should be proved and contested in the manner known to law in terms of Rule 28 of CPC. Having come to the conclusion that the document is necessary for adjudicating the appeal suit, the Appellate Court ought to have followed the procedure prescribed under Rule 28 of CPC, which has admittedly not been done. Therefore, I find considerable force in the arguments of the learned Counsel for the appellant in the appeals that the Appellate Court ought not to have looked into the additional documents.

In fact, I do not even find any serious prejudice being caused to the appellants by the Appellate Court taking note of additional documents namely Ex.A.8, which is the very same document under which Periya Kamayeeammal and not Chinna Kamayeeammal, acquired the suit property. Mere reliance on Ex.A. 8 will not throw any light on the actual dispute between the parties to show whether the property was purchased by Periya Kamayeeammal or Chinna Kamayeeammal. However, the specific defence set up by the defendants by way of their respective written statement have been conceded to by the plaintiff, as already discussed elaborately hereinabove. Therefore, once it becomes evident that Periya Kamayeeammal was the purchaser, then the entire case of the plaintiff falls to the ground.

The case of the defendants claiming title through Periya Kamayeeammal, her son Muthu Thevar and grandson Subbu Thevar is probabilised. Merely because the vendor Subbu Thevar did not have document of title in his name, can at best, be a weakness in the defence of the defendants. In a suit for declaration filed by the plaintiff, the burden of proof to establish title and possession is certainly only on the plaintiff. The plaintiff has miserably failed to establish both title and possession. Therefore, the First Appellate Court erroneously picked holes in the weakness of the case of the defendants to grant a decree in favour of the plaintiffs, which is impermissible in law.

Coming to the decisions relied on by the learned Counsel on either side, in Union of India's case, the Hon'ble Supreme Court held that in the suit for declaration of title, burden is always on the plaintiff to make out and establish a clear case before entitling the plaintiff to a declaratory decree and the weakness, if any of the case set up by the defendants cannot be a ground to grant relief to the plaintiff.

In United India Insurance's case, the Hon'ble Supreme Court held that the weight of an admission, depends on the circumstances under which it was made and such circumstances can always be proved to impeach or enhance its credibility. Hon'ble Supreme Court further held that an admission cannot be expanded by adducing material to show the contrary to outweigh the admission. In the present case, despite having admitted to the existence of two Kamayeeammals and the factum of Periya Kamayeeammal having owned the suit property, plaintiff has not been able to demonstrate that the plaintiff's vendor under the 1968 sale deed had acquired valid title from the actual legal heirs of Periya Kamayeeammal alone and not the legal heirs of Chinna Kamayeeammal as contended by the defendants.

In Vaithilinga Gounder's case, this Court held that issuance of a patta passbook and registration of a document and subsequent mutations will start the limitation clocks ticking and the plaintiffs cannot plead ignorance to save limitation. In the facts of the present case, plaintiff admits that patta passbook was standing in the name of Subbu Thevar and therefore, having not challenged the same in the manner known to law by invoking the provisions of Patta Passbook Act or by filing a civil suit within time, the suit is clearly and hopelessly barred by law of limitation having been filed only in the year 2011. The patta passbook was issued in favour of Subbu Thevar in the year ---- and subsequently, in the year 1968, he has alienated the property, Section 3 of the Transfer of Property Act also is an implied notice of transfer and viewed from this angle also, the plaintiff's suit in 2011 is clearly out of time, not having been filed within 12 years, under Articles 64 & 65 of the Limitation Act.

In Madhukar's case, the Hon'ble Supreme Court held that the First Appellate Court is a final court of fact and has to deal with the oral and documentary evidence adduced before the trial Court. Admittedly, the Appellate Court has brushed away the aspect of possession and has not even dislodged the well considered findings of the trial Court based on oral and documentary evidence that the defendants are in possession of the suit property. Therefore, even applying the ratio in Madhukar's case, the judgment of the First Appellate Court deserves to be set aside.

Though the First Appellate Court has shifted the burden on the defendants to prove genealogy and ancestry of Subbu Thevar, tracing title to Periya Kamayeeammal, when the plaintiff as P.W.1 has categorically admitted to the property being belonging to Periya Kamayeeammal and that patta passbook was mutated in Subbu Thevar's name, I do not see how the Appellate Court can find fault with the defendants and on that ground grant relief to the plaintiffs.

The First Appellate Court has also accepted the genealogy projected by the plaintiff that Subbu Thevar was the grandson of Machakalai Thevar, son of Muthu Thevar, who was son of Machakalai Thevar, one of the vendors in favour of K.S.Vetrivel. I find that there is no evidence to establish that Subbu Thevar was the grandson of Machakalai Thevar, who was a party to the sale deed in favour of K.S.Vetrivel, under whom the plaintiff claims right and title. It has been rightly pointed out by Mr.H.Lakshmi Shankar, that Muthu Thevar was a minor in the year 1968 and by no stretch of imagination Subbu Thevar could have been born to Muthu Thevar.

As rightly pointed out by Mr.H.LAkshmi Shankar, that the age of the persons concerned and the factum of Muthu Thevar himself being a minor in the year 1968 read along with the admission of P.W.1 that Subbu Thevar was grandson of Machakalai Thevar would clearly render the findings of the First Appellate Court fallacious and erroneous.

In Shailendra Kumar's case, the Hon'ble Supreme Court laid down the procedure to be adopted by the Appellate Court while admitting additional evidence invoking the Order 41 Rule 27 of CPC. I have already discussed the shortcomings in the procedure adopted by the First Appellate Court in this regard.

In Basayya I.Mathad's case, Hon'ble Supreme Court again dealt with Order 41 Rule 27 of CPC and held that procedure is mandatory and when procedure is not followed, the documents sought to be produced with additional evidence cannot be relied on.

In Corporation of Madras's case, as well, the Hon'ble Supreme Court held that even when the Appellate Court considers admitting additional evidence, an opportunity must be given to the other party to file any rebuttal evidence to counter the additional evidence and non-compliance of the same would amount to a jurisdictional error.

In Akhilesh Singh's case, also the Hon'ble Supreme Court reiterated that after admission of additional evidence, the Appellate Court should provide opportunity to the other side to lead evidence in rebuttal as otherwise it would deviate the principles of natural justice and fair hearing.

Ratio laid down in these cases would also squarely apply to the present case, since having admitted the document of the year 1930 as additional evidence, the Appellate Court has not given an opportunity to the appellants to lead evidence in rebuttal. Be that as it may, I have already held that there is no useful purpose in relying on the said sale deed of the year 1930, since it does not throw any light on the actual dispute between the parties namely whether the purchaser under the said document was Periya Kamayeeammal or Chinna Kamayeeammal.

Coming to the decisions that have been relied on on the side of the first respondent, in Union of India Vs. Vasavi Co-op Housing Society, which has been relied on by Mr.H.Lakshmi Shankar, is also relied on by Mr.S.Vijayakumar, for the proposition that entries in revenue records will not confer any title.

In United India Insurance Company's case, the Hon'ble Supreme Court held that the onus to rebut any presumption is on the person who made the admission and the material adduced to outweigh the admission has to be of clinching in nature. I have already set out this principle and held that it was the plaintiff who ought to have adduced such clinching evidence to outweigh the admissions of P.W.1 in cross examination.

In Lakshmaiah Reddy's case, the Hon'ble Supreme Court held that mutation of revenue records do not convey or extinguish any title and those entries are relevant only for purpose of collection of land revenue. 40. Dr.N.Mohamed Farook's case, this Court held that mere entry in a survey register would not be sufficient to prove ostensible ownership in a person.

In Kasturi Rengan's case, this Court held that mere grant of patta and kist receipts will not prove possession for more than 12 years.

In D.Srinivasan's case, this Court again held that when title has been established as far as vacant land, then possession would follow title and patta granted despite title remain with the defendants was invalid in law.

It has been contended by Mr.S.Vijayakumar learned Senior Counsel that patta is only proof of possession and therefore, by no stretch of imagination, it can confer title on Subbu Thevar. I am in entire agreement with the arguments of Mr.S.Vijayakumar, that patta by itself does not create title in the name of the pattathar. It is a document of revenue which at best establishes possession of the subject property being with the pattadhar concerned. However, in the present case, the facts are totally different. On the side of the defendants there is no registered document of conveyance and a right is claimed by Subbu Thevar only by inheritance and laws of succession, tracing title to Kamayeeammal who had originally purchased the property under a sale deed.

It is the case of the defendants that said Kamayeeammal had only one legal heir by name Muthu Thevar, who enjoyed the property after the life time of Kamayeeammal and that after the life time of Muthu Thevar, his only son Subbu Thevar was in absolute possession of the property. Only in order to evidence possession of Subbu Thevar, Ex.B.6 has been filed, to negate the claim of the plaintiff that the plaintiff has been in absolute possession of the property. Even otherwise, Section 6 of the Patta Passbook Act, 1987, sets out that entries in the patta passbook would be prima facie evidence of title of the person in whose name patta passbook has been issued. No doubt, the said prima facie evidence is rebuttable and separate procedure has been set out under the Patta Passbook Act to seek modification of entries in the patta passbook Act, by invoking the procedure under Section 10 of the Patta Passbook Act. Appeals and revisions are also provided and bar of suits is also set out in Section 14. In such circumstances, I find force in the submissions of Mr.H.Lakshmi Shankar that despite knowing and admitting that patta passbook was issued in the name of Subbu Thevar, grandson of Kamayeeammal, plaintiff did not choose to seek cancellation of the said patta.

In the light of the above, coupled with the fact that the said Subbu Thevar claimed title only by way of intestate succession, it may not be improper to hold that the patta passbook having been issued in the name of Subbu Thevar and not being challenged by the plaintiff at any point of time, can certainly be taken as prima facie evidence of title and possession of the said Subbu Thevar. In fact, subsequently defendants have also mutated the revenue records in their names which was also not challenged by the plaintiff in the manner known to law, excepting for filing of the present suit. For all the above reasons, I am unable to sustain the findings of the First Appellate Court. Accordingly, the substantial questions of law are answered in favour of the appellants.

In the result, these Second Appeals are allowed with costs and the judgment and decree in A.S.No.38 of 2018, on the file of the IV Additional District Judge, Madurai dated 11.12.2020 is set aside and the judgment and decree in O.S.No.65 of 2017, on the file of the Sub Court, Thirumangalam, dated 31.01.2018, is restored. Consequently, connected miscellaneous petitions are closed. 05.06.2026