SMRITI DEBBARMA (DEAD) THROUGH LEGAL REPRESENTATIVE versus PRABHA RANJAN DEBBARMA AND OTHERS

SMRITI DEBBARMA (DEAD) THROUGH LEGALREPRESENTATIVE

PRABHA RANJAN DEBBARMA AND OTHERS

(Civil Appeal No. 878 of 2009)

JANAURY 04, 2023

[SANJIV KHANNA AND J. K. MAHESHWARI, JJ.]

Suit – Suit for declaration of title – Burden of proof – Trialcourt decreed the suit holding that the plaintiff had right, title andinterest in the subject property and was entitled to khas possessionof the property after evicting all the defendants – High Courtreversed the judgment of trial court holding that plaintiff on basisof evidence and documents placed on record had not been able todischarge the burden of proof to establish legal ownership and titleto the subject property – Held: High Court rightly set aside thejudgment and decree of the trial court – The plaintiff tookcontradictory stands – On the date of filing of the suit, the plaintiffwas not in constructive or actual physical possession of the property– The defendants could not be dispossessed unless the plaintiffestablished better title and rights over the property – The burdenof proof to establish title in the present case lay upon the plaintiff–s.101 of the Evidence Act states that burden on proving the factrests with party who substantially asserts in the affirmative and noton the party which is denying it – In terms of s.102 of the EvidenceAct, if both parties fail to adduce evidence, the suit must fail – Onusof proof, no doubt shifts and the shifting is continuous process inthe evaluation of evidence, but this happens when in suit for titleand possession, the plaintiff has been able to create high degreeof probability to shift the onus on the defendant – The weakness ofthe defence cannot be justification to decree the suit – The plaintiff

356SUPREME COURT REPORTS

Acould have succeeded in respect of the property if she had dischargedthe burden to prove the title to the property which squarely fell onher – This would be the true effect of ss.101 and 102 of the EvidenceAct – Suit in question liable to be dismissed – Evidence Act – ss.101 and 102.B

Evidence – “Burden of proof” and “Onus of proof” –Discussed.

Dismissing the appeal, the CourtCHELD:1. For the plaintiff to succeed, she has to establishthat she has legal title to the Schedule ‘A’ property, andconsequently, is entitled to decree of possession. Thedefendants cannot be dispossessed unless the plaintiff hasDestablished better title and rights over the Schedule ‘A’property. person in possession of land in the assumed characteras the owner, and exercising peaceably the ordinary rights ofownership, has legal right against the entire world except theErightful owner. decree of possession cannot be passed in favourof the plaintiff on the ground that defendant nos. 1 to 12 have notbeen able to fully establish their right, title and interest in theSchedule ‘A’ property. The defendants, being in possession, wouldbe entitled to protect and save their possession, unless theFperson who seeks to dispossess them has better legal right inthe form of ownership or entitlement to possession [Para 30][372-H; 373-A-C]

2. The burden of proof to establish title in the presentGcase lies upon the plaintiff as this burden lies on the party whoasserts the existence of particular state of things on the basisof which she claims relief. This is mandated in terms of Section101 of the Evidence Act, which states that burden on proving theHfact rests with party who substantially asserts in the affirmative

SMRITI DEBBARMA (DEAD) THROUGH LEGAL REPRESENTATIVEv. PRABHA RANJAN DEBBARMA

and not on the party which is denying it. This rule may not beuniversal and has exceptions, but in the factual background ofthe present case, the general principle is applicable. In terms ofSection 102 of the Evidence Act, if both parties fail to adduceevidence, the suit must fail. Onus of proof, no doubt shifts andthe shifting is continuous process in the evaluation of evidence,but this happens when in suit for title and possession, the plaintiffhas been able to create high degree of probability to shift theonus on the defendant. In the absence of such evidence, theburden of proof lies on the plaintiff and can be discharged onlywhen he is able to prove title. The weakness of the defence cannotbe justification to decree the suit. The plaintiff could havesucceeded in respect of the Schedule ‘A’ property if she haddischarged the burden to prove the title to the Schedule ‘A’property which squarely falls on her. This would be the true effectof Sections 101 and 102 of the Evidence Act. Therefore, it followsthat the plaintiff should have satisfied and discharged the burdenunder the provisions of the Evidence Act, failing which the suitwould be liable to be dismissed. [Para 31][373-C-E; 374-A-C]

Poona Ram v. Moti Ram (Dead) through LegalRepresentatives and Others (2019) 11 SCC 309 : [2019]1 SCR 671; Nair Service Society Limited v. Rev. FatherK.C. Alexander and Others, AIR 1968 SC 1165 : [1968]3 SCR 163; Anil Rishi v. Gurbaksh Singh, (2006) 5SCC 558 : [2006] 1 Suppl. SCR 659;

R.V.E. Venkatachala Gounder v. ArulmiguViswesaraswami & V.P. Temple and Another (2003) 8SCC 752 : [2003] 4 Suppl. SCR 450; Union of Indiaand Others v. Vasavi Cooperative Housing SocietyLimited and Others (2014) 2 SCC 269 : [2014] 1 SCR

A180 and Sebastiao Luis Fernandes (DEAD) Through LRs.And Others v. K.V.P. Shastri (DEAD) Through LRs. andOthers (2013) 15 SCC 161 : [2013] 11 SCR 1076 –relied on.

BAddagada Raghavamma and Another v. AddagadaChenchamma and Another AIR 1964 SC 136 : [1964]2 SCR 933 – referred to.

Case Law Reference

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 878 of2009.F

From the Judgment and Order dated 17.05.2006 of the High Courtof Gauhati (Agartala Bench) in F.A. No.40 of 1997.

Rauf Rahim, Ali Asghar Rahim, Advs. for the Appellant.G

Kedar Nath Tripathy, Dr. P. V. Saravanaraja, P. Veerappan, AnandKumar V., Advs. for the Respondents.

SMRITI DEBBARMA (DEAD) THROUGH LEGAL REPRESENTATIVEv. PRABHA RANJAN DEBBARMA

The Judgment of the Court was delivered by

SANJIV KHANNA, J.

On 19.06.1986, Smriti Debbarma, as an attorney and on behalf ofMaharani Chandratara Devi, had filed Title Suit No. 66 of 1986, interalia praying for declaration that Maharani Chandratara Devi is the ownerof the property known as ‘Khosh Mahal’, described in Schedule ‘A’ tothe original plaint, as under:

“S U L - A.

Old Dar Tashkishi Taluk No. 178 (now Agartala Town Sheet No.3), Khatian No. 4882, Dag Nos. 13142, 13144, 13176/26261 and13144/51733, commonly known as “Khosh Mahal”, within thisland measuring One Kani five Gandas two karas, three krantaand ten dhurs only.”

Other reliefs included declaration that any transfer/conveyancefor and on behalf of the plaintiff made by late Bikramendra KishoreDebbarma[1] and his legal representatives, impleaded as defendantnos. 1 to 7 to the civil suit, should be declared illegal and void, andthat the defendants and their agents should be restrained fromentering, selling or alienating the Schedule ‘A’ property. In addition,the plaintiff had prayed that she has right, title and interest inSchedule ‘B’ property, namely the shares and business of M/s.Hotel Khosh Mahal Limited, Agartala.

2. Post recording of the statement of witnesses, and the report ofthe Court Surveyor dated 20.01.1995, marked as Exhibit-I, the plaintwas amended, and the land mentioned in Schedule ‘A’ was substitutedand increased to 2 Kanis 8 Gandas 3 Karas and 8½ Dhurs. Paragraphs26(A) to 26(D) and paragraphs 27(A) to 27(C) to the plaint were added.The prayer clause was amended to include direction to the Survey andSettlement authority to delete/expunge the record of rights standing inthe name of defendant nos. 8 to 12 as void and inoperative. Prayer fordirection to the Director of Settlement and Land Records to issue arecord of rights in the name of the plaintiff for the Schedule ‘A’ property,and to confirm the possession of the plaintiff of the Schedule ‘A’ propertywas made.

3. Earlier, defendant nos. 8 to 12 were impleaded as defendantsin the Title Suit vide order dated 15.09.1989. These defendants had

1 Alias “Bidurkarta”.

Apurchased portions of land vide the sale deeds executed by the ManagingDirector of M/s. Hotel Khosh Mahal Limited. The sale deed in favourof the defendant no.8, marked as Exhibit-E, dated 17.07.1985, is prior tothe institution of the suit in question, which was filed on 19.06.1986.

4. Maharani Chandratara Devi was the sixth wife of the lateBMaharaja Birendra Kishore Debbarma. She was not survived by herchildren who had predeceased her. Maharani Chandratara Devi did notenter the witness box and depose as witness. Maharani ChandrataraDevi had expired soon after filing of the suit on 27.12.1988.

5. Smriti Debbarma was substituted as the plaintiff, as the legalCrepresentative of Maharani Chandratara Devi, who had inherited theSchedule ‘A’ property and other properties in terms of the Will, markedas Exhibit-4, dated 15.10.1985 of Maharani Chandratara Devi. The Willhas not been probated, and was disputed by the defendants before thetrial court[2]. Smriti Debbarma, had expired during the pendency of thepresent appeal and is now represented by her legal representatives.D6. By judgment dated 23.11.1996, the suit was decreed holdingthat the plaintiff had right, title and interest in the Schedule ‘A’ property,as amended, and the plaintiff was entitled to khas possession of theSchedule ‘A’ property after evicting all the defendants and was entitledto remove all obstructions. Further, any transfer and/or conveyance ofEany portion of the Schedule ‘A’ property made by late Bidurkarta anddefendant nos. 1 to 7 was illegal and void. Directions were issued tomake correction in the records of the office of the Sub-Registrar,Municipal Holdings etc. by deleting the names of M/s. Hotel KhoshMahal Limited and/or defendant nos. 8 to 12, and that the name of theFplaintiff should be recorded in all records relating to the Schedule ‘A’property. The defendants, their agents etc. were restrained from enteringinto the Schedule ‘A’ property and creating any sort of disturbance inthe peaceful possession of the plaintiff over the same. The Survey Report(Exhibit-I) was directed to form part of the decree.7. However, the trial court did not grant and therefore, is deemedGto have rejected the prayer of the plaintiff for decree in respect of theSchedule ‘B’ property. The plaintiff did not challenge the decree of the

2The trial court accepted the genuineness of the will propounded by Smriti Debbarma.It appears this finding was challenged in the first appeal filed before the High Court ofGauhati and the appeal was allowed, albeit the question of the genuineness of the willHhas not been examined.

trial court dismissing her suit in respect of the Schedule ‘B’ property.Decree of the trial court to this extent has attained finality.

8. The defendants preferred appeals against the decree in respectof the Schedule ‘A’ property before the Gauhati High Court, which havebeen allowed by the impugned judgment dated 17.05.2006. This judgmentof reversal inter alia holds that the plaintiff on the basis of evidence anddocuments placed on record has not been able to discharge the burdenof proof to establish legal ownership and title to the Schedule ‘A’ property.We will elaborate on the evidence and reasons recorded by the HighCourt subsequently. The judgment also refers to the Tripura LandRevenue and Land Reforms Act which came into force in 1960, andobserves that certain rights may have accrued to the state governmentin respect of the Schedule ‘A’ property. Albeit the High Court clarifiedthat the question pertaining to the right, title and interest of the defendantsremains to be adverted, and the defendants could approach theappropriate forum.

9. We would now proceed to examine the averments made in thepleadings, including the plaint, and the evidence led by the parties.

10. The plaint and the claim made by Smriti Debbarma, who haddeposed as PW-1, is predicated on the Deed of Patta, marked as Exhibit-12, executed by Maharaja Durjoy Kishore Debbarma, son of MaharajaBirendra Kishore Debbarma in favour of Bidurkarta on 31.10.1951.Subsequently, Bidurkarta on 25.06.1952 had executed an Ekrarnama,marked as Exhibit-5, acknowledging that the rights granted to him underthe Deed of Patta (Exhibit-12) actually belong to Maharani ChandrataraDevi. To this extent, there is no dispute.

11. The plaint refers to and accepts that charter executed byMaharaja Bir Bikram Kishore Debbarma, incorporated private limitedcompany, on 24.01.1351 Tripura Era[3] or 1941 A.D. , namely, M/s. HotelKhosh Mahal Limited. Further, M/s. Hotel Khosh Mahal Limited, afterits incorporation, had acquired huge properties in Agartala town. Theplaintiff claims that she is one of the major shareholders of this company.However, there is no evidence or material on record to show theshareholding of Maharani Chandratara Devi in M/s. Hotel Khosh MahalLimited. As noted above, the plaintiff’s prayer for decree in respect ofshares and business of M/s. Hotel Khosh Mahal Limited was declined

3 For short, “T. E.”.

Aby the trial court, which decree remains unchallenged by the plaintiffand has been accepted. Paragraph 7 of the plaint states that M/s. HotelKhosh Mahal Limited was established after taking the land and buildingof Schedule ‘A’ property, which was given on lease by MaharaniChandratara Devi. The lease had expired long back. Date of executionand the term of the lease is not indicated. No lease deed or surrenderBdocument was placed on record and proved. Nevertheless, we wouldrecord that the plaint accepts that M/s. Hotel Khosh Mahal Limited wasin possession of the Schedule ‘A’ property.12. Maharani Chandratara Devi had appointed Bidurkarta as herattorney vide registered power of attorney executed by her on 29.10.1969Cbecause of her ill-health, old age and religious mentality, and as she usedto primarily reside at Varanasi, Haridwar and/or Dehradun. Later on,she cancelled this power of attorney on 06.03.1970 and instituted civilsuit T.S. No. 95/72 in 1972 for cancellation of the registered gift deedexecuted on 12.01.1970 by Bidurkarta transferring her 1/3rd share ofDthe ‘Rupchaya’ Cinema Hall business to Karnakishore Debbarma andSahadeb Kishore Debbarma. The suit was decreed on 17.06.1983, andthe gift deed was cancelled. The facts stated in this paragraph havebeen established and proved by the plaintiff.

13. The plaint states that the hotel business of M/s. Hotel KhoshEMahal Limited had closed down due to heavy losses and mismanagement.Thereupon, the land and building were given to M/s. Indian AirlinesCorporation Limited. Bidurkarta used to send rent received from thetenant to Maharani Chadratara Devi. However, with the passage oftime, the remittances became far and few, and they eventually stopped.Bidurkarta had, in collusion with the defendants, transferred ScheduleF‘A’ property and Schedule ‘B’ business to his wife defendant no.1- JyotiDebbarma. Defendant no.2- Prabha Ranjan Debbarma, son ofBidurkarta, an I.A.S. Officer and central government employee, wouldcollect monthly rent from M/s. Indian Airlines Corporation Limited, thoughhe had no connection with the Schedule ‘A’ property.G14. The plaint, post the amendment, had claimed that M/s. IndianAirlines Corporation Limited had vacated the property on 30.06.1986.Thereafter, the plaintiff through her workmen and agents had takenpossession of the Schedule ‘A’ property and started guest house underthe name and style of ‘M/s. Star Guest House’. However, as the suit

was dismissed in default[4], the defendants took advantage, dispossessedthe plaintiff and took possession of the Schedule ‘A’ property. The plaintiffhad initiated proceedings under Section 144 of the Code of CriminalProcedure, 1973, in the court of Sub-Divisional Magistrate, Agartalavide Miscellaneous No. 75/86, whereby the defendants were restrainedfrom disturbing the possession of the plaintiff. However, vide order dated26.08.1986 passed by the Sub-Divisional Magistrate, Agartala, policeofficer was appointed as receiver. This action of the Sub-DivisionalMagistrate, Agartala, it is contended, illegal and improper as the plaintiffhad already instituted the suit in question.

15. Defendant nos. 1 to 7 in their written statement had reliedupon the Deed of Patta, marked as Exhibit-A, executed by MaharajaDurjoy Kishore Debbarma on 11.10.1358 T.E. or 1948 A.D. in favour ofM/s. Hotel Khosh Mahal Limited, by which the land admeasuring 3Kani 8 Gandas 3 Karas and 16½ Dhurs was given on lease for periodof twenty years from 1349 T.E. to 1369 T.E. or 1939 A.D. to 1959 A.D.We shall subsequently refer to the Deed of Patta (Exhibit-A) and alsoexamine the challenge to the genuineness of this document by the plaintiffbefore this Court. Relying on this document, the written statement pleadsthat Schedule ‘A’ Property is owned by M/s. Hotel Khosh Mahal Limited.By an agreement dated 25.03.1953, Bidurkarta, as the Managing Directorof M/s. Hotel Khosh Mahal Limited, had leased out the business/propertyto Maharani Chandratara Devi. This lease was terminated in August1968 and thereafter by fresh agreement, the business was leased todefendant no. 2 - Prabha Ranjan Debbarma, son of Bidurkarta. M/s.Indian Airlines Corporation Limited had started paying rent to defendantno. 2. These lease deeds, including board resolutions, etc. are not placedon record and proven. The fact that from 1968 onwards rent was paidby M/s Indian Airlines Corporation Limited to defendant no. 2 is acceptedby the plaintiff-appellant.16. Thus, as per defendant nos. 1 to 7, the property in possessionand occupation of M/s. Hotel Khosh Mahal Limited is different anddistinct from the land, which is the subject matter of the Deed of Patta(Exhibit-12), and which as per the Ekrarnama (Exhibit-5) is owned byMaharani Chandratara Devi.

4The Title Suit No. 66 of 1986 was dismissed in default vide order dated 28.04.1988. Arestoration petition in Misc. Case No. 69 of 88 for the Title Suit No. 66 of 1986 wasfiled by the plaintiff and the Title Suit No. 66 of 1986 was restored vide order dated13.07.1989, which also disposed of Misc. Case No. 69 of 88.

A17. Defendant no. 8 had filed separate written statement andhad accepted that he had acquired the land vide registered sale deeddated 17.07.1985, (Exhibit-E), from the Managing Director of M/s. HotelKhosh Mahal Limited. Defendant no. 8 had thereupon constructed abuilding to the notice and knowledge of the plaintiff. The plaintiff had atthat time neither raised an objection nor claimed right, title or interestBover the purchased land. Defendant no. 8 had got his name mutated inthe Survey and Settlement office vide Khatian No. 30912, marked asExhibit-F, dated 16.05.1989. Defendant no. 8 has been in possession ofthe purchased property.

18. Defendants no. 9 to 11 had similarly submitted that the plaintiffChad no right, title, and interest over the Schedule ‘A’ property. They hadacquired the right, title and interest over the portions of the Schedule ‘A’property on the strength of the purchased/sale deed executed by theManaging Director of M/s. Hotel Khosh Mahal Limited. Further, theyhad got published the record of rights of the land in their favour from theDgovernment. Defendant no.11 in his additional written statement hadclaimed that he was not in possession or owner by way of purchase ofany land included in Schedule ‘A’ of the plaint, or the schedule mentionedin the Will (Exhibit-4). Defendant no. 11’s wife had purchased smallpiece of land from defendant no. 1, but this land does not fall within anyplots mentioned in Schedule ‘A’ of the plaint or the Will (Exhibit-4).EDefendants nos. 9 to 11 had questioned the genuineness of the Will(Exhibit-4).

19. The aforesaid narration reveals that there are essentially twointerconnected issues which arise for consideration. The first aspectrelates to the demarcation of land given on lease vide the Deed of PattaF(Exhibit-12) and the Ekrarnama (Exhibit-5), on the basis of which thetitle suit was filed by Smriti Debbarma as the attorney and on behalf ofMaharani Chandratara Devi. The second issue relates to the burden ofproof and whether the plaintiff has succeeded in discharging the burdenby establishing her title for declaratory decree of ownership and herGright to possession of the Schedule ‘A’ property.

20. The impugned judgment in our opinion has rightly examinedthe aspect of demarcation and identification of Schedule ‘A’ propertyviz. the identity of the land mentioned in the Deed of Patta (Exhibit- 12)and the Ekrarnama (Exhibit-5), and upon consideration of the evidenceHand material on record held that the plaintiff has not been able to establish

SMRITI DEBBARMA (DEAD) THROUGH LEGAL REPRESENTATIVEv. PRABHA RANJAN DEBBARMA [SANJIV KHANNA, J.]

her title and ownership over the Schedule ‘A’ property. We would referto the reasoning given by the High Court in this regard and add somereasons of our own.

21. First, the Deed of Patta (Exhibit-12) dated 31.10.1951 andthe Ekrarnama (Exhibit-5) dated 25.06.1952, demarcate and refer tothe property as under:

(Schedule boundaries)

Land measuring one kani five ganda two kara two kranta tendhur with tashkishi taluki title included in Touji No. 178 in myname having an annual revenue of Rs. 30/- (Rupees thirty) withinsheet no. 3, situated within Nutan Haveli Town, Pg, Agartala

Bounded on the north by Mogra Road

West South

on the/and/by khas ‘pati’

on the east by the passage for going to Maharajganj bazar

Within this boundary lies 246[1] X 90 ft land measuring one kanifive ganda two kara two kranta ten dhur, appertaining to the portionmarked (gha) of Dag no. 3412.”

Ekrarnama

(Schedule Property)

I, in the name of Sri Bikramendra Kishore Deb Barma have beengiven ‘bandobasta’ with tashkhishi dar taluki title at an annualrevenue of Rs. 100/- (One Hundred Rupees) of land measuring 1kani 5 ganda 2 kara 2 kranta 10 dhur, in total having tashkhishi dartaluki title no. 178 of Sadar Collectorate, in the name of MaharajKumar Srilo Srijuto Durjoy Kishore Deb Barma, at an annualdeposit of Rs. 30, within Nutan Haveli Town sheet no. 3 underSub-Registry Agartala Pg. and P.S. Agartala.

[2023] 1 S.C.R.

ABounded on north Mogra Road

On the West and south by Khas Patit,

On the east by the passage of Maharajganj Bazar.

Within this boundary lies 1 kani 5 ganda 2 kara 2 kranta 10 dhur ofBland measuring 2061 X 90 ft, in the portion marked (kha) of dagno. 3412. Be it stated that value of the property is Rs. 2500 (RupeesTwo Thousand Five Hundred only)

xx xx xx”

The aforesaid description does not refer to any constructed building,Cand the building Hotel Khosh Mahal in particular. If the Deed of Patta(Exhibit-12) and the Ekrarnama (Exhibit-5) were pertaining to theproperty where Hotel Khosh Mahal had been constructed, it is normaland natural that this position would have been specifically indicated andmentioned.

D22. Secondly, the trial court had appointed surveyor, who hadgiven his report marked Exhibit-I dated 20.01.1995 on the basis of siteinspection done on 18.12.1994 in the presence of the parties. The relevantportion of the report observes:

xx xx xx

The area of the identified land under C.S. Plot Nos. 13142, 13143,13144, 13145, 26261 stands for 2 Kanies 8 ganda 3 karas 8 ½dhurs only whereas the area of the land in the said “Ekrarnama”was mentioned as 1 Kani 5 Gandas 2 Karas 2 Krantas only.

In the exhibit “A” of the Defdt. i.e. Regd. “Patta” created in theFyear 1948 for the land measuring 3 Kanies 8 gandas 16½ dhursonly under the then C.S. Plot No 3424/P, 2863/P, 2661/P, 3426,2662/P, 2663 was described bounded by:-

North:- Fallow Khas land in the Southern side of ‘Smriti Mandir’.

East:- Central Road.GSouth:- Front land of Homestead of Kumar Mahendra MohanDeb Barma.

West:- Adjacent North side land of Kumar Mahendra Mohan DebBarma.

SMRITI DEBBARMA (DEAD) THROUGH LEGAL REPRESENTATIVEv. PRABHA RANJAN DEBBARMA [SANJIV KHANNA, J.]

There is the similarity of the North & East boundary of the identifiedSuitland and/land described in the Exhibit “A” of the Deffdt. TheRuin of “Smriti Mandir” is found after one or two plots of thenorthern side of the identified land. The Central Rd. is found inthe Eastern side of the suit land i.e. C.S. Plot No. 13142. TheSouth and West boundaries as described in the Exhibit “A’ of theDeffdt. and the present boundaries of the suit land do not tally,there may be total change of Record Right and shape of the landin the lapse of so many years from 1948.

It may kindly be noted that neither the Defdt. nor the plttf. wereable to produce any Certified copy of the map of the then C.S.Plot No. 3412 (P) described in the “Ekrarnama” exhibit No.5 orthen C.S. Plot Nos. 3424/P, 2868/P, 2661/P, 3426/P 2663 of thethen mouja “Nutan Habeli”.

In absence of such Certified copy of the maps and difference indescribed boundaries of land in “Ekrarnama” created in the year1952 it is not possible to point out that the identified land by theplaintiff is the land covered by “Ekrarnama” i.e. exhibit No.5 ofthe pltff.

However, there is almost similarity of area of land described in“Ekrarnama” of the plaintiff and the land under present C.S. PlotNo. 13144 within the identified land by the plttff. The area underC.S. Plot No. 13144 is 1 Kani 3 gandas only. Whereas the“Ekrarnama” was created for 1 Kani 5 gandas 2 Karas 2 Krantasonly.

xx xx xx”

The trial court, in our opinion, has wrongly held that the SurveyReport (Exhibit - I) supports and accepts the case of the plaintiff. Thesaid finding was factually incorrect. The High Court has rightly held thatthe Survey Report (Exhibit - I) is against the plea and contention of theplaintiff. As per the Survey Report (Exhibit-I) quoted above, thedescription of the Schedule ‘A’ property, where the building Hotel KhoshMahal is located is different from the description given in the scheduleof the Deed of Patta (Exhibit-12) and Ekrarnama (Exhibit-5). Thedescription of the land and identification in the Patta (Exhibit - A) infavour of M/s. Hotel Khush Mahal Limited is as under:

368SUPREME COURT REPORTS

[2023] 1 S.C.R.

A“PATTA

(Executed on 11-10-1358 T.E.)

(= 1948 A.D.)

xx xx xx

BThis deed of PATTA of Taksishi Taluk within the territory ofindependent Tripura, under Sadar Sub Registry and Police-Stationappertaining to Agartala Nutan Haveli town, land measuring 3Kani 8 Gandas 3 Karas 16 ½ Dhurs, measured in 8 Cubit length‘Nal’ (Chain) = 12 x 10 (‘Nal’) is executed in favour of HOTELKHOSH MAHAL LIMITED on Lease for 20 (Twenty) yearsCfrom 1349 T.E. to 1369 T.E.

xx xx xx

DESCRIPTION OF THE LAND

Land situated in Natun Haveli Town, bounded as follows:-

In the North- ‘Khas Land’ to the South of Smriti-Mandir.

In the East- Central Road

In the South- Front part of residence of Kumar Mahendra

Mohan Deb barma Bahadur

In the West- Northern Part of the said residence of KumarMahendra Mohan Debbarma Bahadur

Within the said above boundary-

Plots:- 2846 (p), 2668 (p), 3423 (p), 3424 (p), 2863 (p),

2661 (p), 3426, 2662, 2663.

xx xx xx”

23. Thirdly, post the submission of the Survey Report (Exhibit-I),the plaintiff in 1995 had amended the plaint and post the amendment,Ghad increased the measurements mentioned in Schedule ‘A’ from 1 Kani5 Gandas 2 Karas, 3 Krantas and 10 Dhurs, to 2 Kanis 8 Gandas 3Karas and 8½ Dhurs. Consequent to this amendment, the figures nowrecorded in Schedule ‘A’ corresponded with the measurements mentionedin the Deed of Patta (Exhibit-A), which patta was executed in 1948 infavour of M/s. Hotel Khosh Mahal Limited. The trial court in theHimpugned judgment has overlooked this discrepancy by observing thatthe quantity of land was immaterial as the basic dispute is whether theSchedule ‘A’ property belonged to the plaintiff or to M/s. Hotel KhoshMahal Limited. The trial court, in support, observed that earlier land wasmeasured by eye estimation and the quantity of land in actual possessionwould always be in excess of what is written in the instrument. Scientificsurvey began in Tripura in 1960. It is difficult to accept this reasoning inlight of the fact that the Deed of Patta (Exhibit-A) refers to themeasurement and demarcation of land which is vastly different fromboth point of view of location as well as the total measurement of landmentioned in the Survey Report (Exhibit-I). The assumption made bythe trial court is fallacious and flawed, for the documents in question, i.e.the Deed of Patta (Exhibit-A), is earlier in point of time, whereas theDeed of Patta (Exhibit-12) and Ekrarnama (Exhibit-5) were executedlater on. The difference in area recorded is substantial. No corrigendumto correct the area in the Deed of Patta (Exhibit-12) and Ekrarnama(Exhibit-5) was made at any point of time.

24. Fourthly, the power of attorney executed by MaharaniChandratara Devi dated 16.10.1985 and relied upon by Smriti Debbarmahad equally identified the land in question, the land which belonged toher, as under:

“S U L –‘B’.

Building and land known as “Khosh Mahal” pertaining to District-West Tripura, P.S. West Agartala in the town of Agartala DagNo. 3412- Area- 2061 X 901 – land measuring 1 (one) kani 5(five) gandas 2 (two) karas, 2 (two) krantas 10 (ten) dhurs;erstwhile Hotel Khosh Mahal now M/s. Indian AirlinesCorporation, Agartala Office, Land recorded in the name of lateBikramendra Kishore Deb Barma as Benamdar of MaharaniChandratara Debi (Principal).”

No doubt, Schedule ‘B’ in the power of attorney statedly executedby Maharani Chandratara Devi refers to ‘Khosh Mahal’ but the area inthe measurement given is vastly different. The area and locationmentioned in the power of attorney corresponds with the area and locationmentioned in the Deed of Patta (Exhibit-12) and Ekrarnama (Exhibit-5). Thus, the contention that the area and location were wrongly mentionedin the Deed of Patta (Exhibit-12) and the Ekrarnama (Exhibit-5) is an

Aafterthought, and the said stand was taken after the discrepancieshighlighted in the Survey Report (Exhibit-I) had come on record.

25. Learned counsel appearing for the appellant-plaintiff hadsubmitted that the Deed of Patta (Exhibit-A) is fabricated document.In support, he referred to the contents of this document and, in particular,Bour attention was drawn to the fact that the lease given to M/s. HotelKhosh Mahal Limited was for period of twenty years from 1349 T.E.to 1369 T.E. or 1939 A.D. to 1959 A.D. It was highlighted that the Deedof Patta (Exhibit A) refers to dates 1351 T.E. or 1941 A.D. as the yearwhen M/s. Hotel Khosh Mahal Limited was established[5]. We feel thatthe appellant-plaintiff should not be permitted and allowed to raise thisCplea, as this contention was not raised before the trial court or the HighCourt. The Deed of Patta (Exhibit-A) is registered document/instrument. The document enjoys the presumption, being more than thirtyyears old, in terms of Section 90[6] of the Indian Evidence Act, 1872[7].Moreover, the plaintiff had not impleaded M/s. Hotel Khosh MahalDLimited as party to the civil suit.

26. Counsel for the appellant-plaintiff has also drawn our attentionto the letter marked as Exhibit-C dated 11.04.1968 purportedly sent byMaharaja Durjoy Kishore Debbarma as an attorney of MaharaniChandratara Devi. It is highlighted that Maharaja Durjoy KishoreEDebbarma had expired in 1962, which has been accepted by MaharaniChandratara Devi, who had deposed as PW-1 in her cross-examinationin the Civil Suit T.S. No. 95/72, marked as Exhibit-13. The plaintiff couldbe correct that this letter is forged, and we would not rely upon the5We have taken these dates from the translated copy of the Deed of Patta (Exhibit-A),Fassuming them to be correct.6 Section 90: Presumption as to documents thirty years old.- Where any document,purporting or proved to be thirty years old, is produced from any custody which theCourt in the particular case considers proper, the Court may presume that the signatureand every other part of such document, which purports to be in the handwriting of anyparticular person, is in that persons handwriting, and, in the case of document executedor attested, that it was duly executed and attested by the persons by whom it purportsGto be executed and attested.Explanation.- Documents are said to be in proper custody if they are in the place inwhich, and under the care of the person with whom, they would naturally be; but nocustody is improper if it is proved to have had legitimate origin, or if the circumstancesof the particular case are such as to render such an origin probable.This explanation applies also to section 81.H7For short, “Evidence Act”.

same. However, it is also matter of record that M/s. Hotel KhoshMahal Limited has been recorded as the owner and possessor of theSchedule ‘A’ property in the revenue records vide entry of 1974, markedas Exhibit-15. The revenue entries were challenged by the plaintiff onlyin the year 1994 in Revenue Case No. 4 of 1994. As noted above,Maharani Chandratara Devi had filed Civil Suit T.S. No. 95/72 in 1972after having cancelled the power of attorney in favour of Bidurkarta forcancellation of gift deeds executed by Bidurkarta. Given the fact thatshe doubted the intent and acts of Bidurkarta, she would have knownand should have pressed her claim in respect of the Schedule ‘A’ property,more so when she was admittedly not being paid any rent since 1968.The gap of 18 years in the filing of the present civil suit has not beenexplained by the appellant-plaintiff[8].

27. The plaintiff has relied upon the deposition of Kishalaya KishoreDebbarma, son of Bidurkarta, who had deposed as DW-1, and acceptedthat rent received from M/s. Indian Airlines Corporation Limited till 1968was paid to Maharani Chandratara Devi. This is correct and acceptedby defendant nos. 1 to 7. These defendants have stated that in 1953 theSchedule ‘A’ property was given on lease by M/s. Hotel Khosh MahalLimited to Maharani Chandratara Devi, which lease was extended till1968. The defendants have not proved this fact by any documents orlease deed to the said effect. The defendants have also not placed onrecord the resolutions, if any, passed by the Board of Directors of M/s.Hotel Khosh Mahal Limited. The present status of the company is ratherambiguous and unknown. This would reveal chinks in the defence of thedefendants, albeit, as elucidated below, the plaintiff cannot succeed inthe present suit on the basis of the weakness of the defendants’ case.We would first refer to the plaint, then the evidence on record, whichhas been partly noticed above, and the legal position on burden of proof.

28. The plaintiff had taken contradictory stand. In the plaint it ispleaded that the M/s. Hotel Khosh Mahal Limited was established bythe management after taking the land and building of Schedule ‘A’property on lease from Maharani Chandratara Devi, virtually acceptingthat M/s. Hotel Khosh Mahal Limited were in possession. At the sametime, the plaintiff had pleaded that M/s. Hotel Khosh Mahal Limitedwas established in 1941, and in 1951 Chandratara Devi had acquired

8Earlier, but post stoppage of payment of rent in 1968, Maharani Chandratara Devihad on 29.10.1969 executed power of attorney in favour of Bidurkarta.

Alease hold right in the Schedule ‘A’ property from Maharaja DurjoyKishore Debbarma vide Deed of Patta (Exhibit- 12). The pleading bythe plaintiff is acceptance of the fact that when M/s. Hotel Khosh MahalLimited was established in 1941, and subsequently Schedule ‘A’ propertygot vested with it. In 1941, the plaintiff was clearly not the owner or inpossession of the Schedule ‘A’ property/Khosh Mahal. Construction ofBthe hotel building on the land, it is apparent, was undertaken and done byM/s. Hotel Khosh Mahal Limited. The plaintiff has made no such claim.

29. As per the plaint, the Schedule ‘A’ property was given onlease by Maharani Chandratara Devi to M/s. Hotel Khosh Mahal Limited.The plaintiff, however, has not placed any document on record in supportCof this claim that Maharani Chandratara Devi had given Schedule ‘A’property on lease to M/s. Hotel Khosh Mahal Limited. Equally, defendantnos. 1 to 7 have not been able to establish and show that M/s. HotelKhosh Mahal Limited had given the property on lease to MaharaniChandratara Devi. Be that as it may, we would accept as pleaded by theDplaintiff that M/s. Hotel Khosh Mahal Limited was in possession ofSchedule ‘A’ property, though the nature and right to possession isdisputed. Further, the plaint accepts that after 1968 M/s. Indian AirlinesCorporation Limited had paid the rent to defendant no. 2 – Prabha RanjanDebbarma till M/s. Indian Airlines Corporation Limited had vacated theproperty on 30.06.1986. The plaintiff’s claim that thereupon she hadEtaken possession of Schedule ‘A’ property through her workmen andagents and started guest house in the name and style of ‘M/s. StarGuest House’ is unsubstantiated, or rather implausible. Not only there isno document or evidence to support the assertion, the possession wouldnormally be given to the landlord to whom rent is being paid. FindingsFrecorded supra support the case of the defendants. Further, it is clearthat defendant no. 8 vide the registered sale deed (Exhibit-E) dated17.07.1985, had come in actual physical possession of portion of theSchedule ‘A’ property. The sale deed was executed on behalf of M/s.Hotel Khosh Mahal Limited. Similarly, defendant nos. 9 to 11 have statedthat they have purchased portions of the Schedule ‘A’ land on the basisGof purchase/sale deeds executed in their favour by M/s. Hotel KhoshMahal Limited. In this factual background, we would accept the claimof the defendants that on the date of filing of the suit the plaintiff was notin constructive or actual physical possession of the Schedule ‘A’ property.

30. In the above factual background, for the plaintiff to succeed,Hshe has to establish that she has legal title to the Schedule ‘A’ property,

and consequently, is entitled to decree of possession. The defendantscannot be dispossessed unless the plaintiff has established better titleand rights over the Schedule ‘A’ property. person in possession of landin the assumed character as the owner, and exercising peaceably theordinary rights of ownership, has legal right against the entire worldexcept the rightful owner.[9] decree of possession cannot be passed infavour of the plaintiff on the ground that defendant nos. 1 to 12 have notbeen able to fully establish their right, title and interest in the Schedule‘A’ property. The defendants, being in possession, would be entitled toprotect and save their possession, unless the person who seeks todispossess them has better legal right in the form of ownership orentitlement to possession.31. The burden of proof[10] to establish title in the present caselies upon the plaintiff as this burden lies on the party who asserts theexistence of particular state of things on the basis of which she claimsrelief[11]. This is mandated in terms of Section 101[12] of the Evidence Act,which states that burden on proving the fact rests with party whosubstantially asserts in the affirmative and not on the party which isdenying it. This rule may not be universal and has exceptions[13], but inthe factual background of the present case, the general principle isapplicable. In terms of Section 102[14] of the Evidence Act, if both partiesfail to adduce evidence, the suit must fail.[15] Onus of proof, no doubt

shifts and the shifting is continuous process in the evaluation of evidence,

9 See Poona Ram v. Moti Ram (Dead) through Legal Representatives and Others (2019)11 SCC 309 and Nair Service Society Limited v. Rev. Father K.C. Alexander and Others,AIR 1968, SC 1165.

10 See Paragraph 19 in Anil Rishi v. Gurbaksh Singh, (2006) 5 SCC 558 where theexpression– ‘burden of proof’ is used in three ways, namely, (i) to indicate the duty ofbringing forward evidence in support of proposition at the beginning or later; (ii) tomake that of establishing proposition as against all counter-evidence; and (iii) anindiscriminate use in which it may mean either, or both of the others.

11 See Addagada Raghavamma and Another v. Addagada Chenchamma and Another,AIR 1964 SC 136.

12 Section 101: Burden of Proof.- Whoever desires any Court to give judgment as toany legal right or liability dependent on the existence of facts which he asserts, mustprove that those facts exist. When person is bound to prove the existence of any fact,it is said that the burden of proof lies on that person.

13 See Sections 103, 104 and 105 of the Evidence Act.

14 Section 102: On whom the burden of proof lies.- The burden of proof in suit orproceeding lies on that person who would fail if no evidence at all were given on eitherside.

15 See Anil Rishi v. Gurbaksh Singh, (2006) 5 SCC 558.

Abut this happens when in suit for title and possession, the plaintiff hasbeen able to create high degree of probability to shift the onus on thedefendant. In the absence of such evidence, the burden of proof lies onthe plaintiff and can be discharged only when he is able to prove title.[16]The weakness of the defence cannot be justification to decree thesuit.[17] The plaintiff could have succeeded in respect of the Schedule ‘A’Bproperty if she had discharged the burden to prove the title to the Schedule‘A’ property which squarely falls on her. This would be the true effect ofSections 101 and 102 of the Evidence Act.[18] Therefore, it follows thatthe plaintiff should have satisfied and discharged the burden under theprovisions of the Evidence Act, failing which the suit would be liable toCbe dismissed. Thus, the impugned judgment by the High Court had rightlyallowed the appeal and set aside the judgment and decree of the trialcourt. We, therefore, uphold the findings of the High Court that the suitshould be dismissed. We clarify that we have not interfered or set asideany observations of the High Court in re the Tripura Land Revenue andLand Reforms Act, or defendants’ claim etc. Notably, M/s. Hotel KhoshDMahal Limited is not party to the present proceedings.

32. In view of the aforesaid discussion and legal position, thepresent appeal must be dismissed. We order accordingly. In the facts ofthe case, there will be no order as to costs.

EBibhuti Bhushan Bose(Assisted by : Preetam Bharti, LCRA)

Appeal dismissed.

16 See R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple andAnother, (2003) 8 SCC 752.

17 See Union of India and Others v. Vasavi Cooperative Housing Society Limited andOthers, (2014) 2 SCC 269.

18 See Sebastiao Luis Fernandes (DEAD) Through LRs. And Others v. K.V.P. ShastriH(DEAD) Through LRs. And Others, (2013) 15 SCC 161.