RAMCHANDRA SAKHARAM MAHAJAN versus DAMODAR TRIMBAK TANKSALE (D) AND ORS.

Citation: [2007] 8 S.C.R. 178 · Decided: 09-07-2007 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Disposed off
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Judgment (excerpt)

A 
RAMCHANDRA SAKHARAM MAHAJAN 
--~ 
v. 
DAMODAR TRIMBAK TANKSALE (D) AND ORS. 
JULY 9, 2007 
B 
[S.B. SINHA AND P.K. BALASUBRAMANY AN, JJ.] 
/ 
Transfer of Property Act, 1882: 
c 
Suit for possession-Based on title-Burden of proof-Held: ls on 
plaintiff to establish that title-Weakness in defence or failure of defendants 
to establish Jitle set up by them, would not enable plaintiff to a decree. 
Title is not decided by survey records alone. 
D 
Code of Civil Procedure, 1908-o.6. r.17 
Amendment of plaint-Plaintiff wanted to amend the plaint and supply 
_(. 
better particulars-Trial Court ought to have allowed amendment so as to 
decide dispute in more satisfactory manner. 
E 
faidence Act, 1872: 
Ancient document-Lease deed of year I 87 5-Plaintiff produced certified 
copy of lease deed-Trial Court refused to look into the document of title on 
the ground that no foundation laid for adducing secondary evidence-Held: 
t-
Not proper. 
F 
The plaintiff-appellant filed a suit for declaration of joint title with 
y 
defendant No. I 0 to 13 and for recovery of possession of suit property against 
defendants no. 1 to 9. The case of plaintiff was that suit property belonged to 
a Muslim family and was granted on lease to the predecessor-in-interest of 
the plaintiff and lease deed was executed in that behalf on 21.7.1875; that the 
G predecessors of the plaintiff had permitted the predecessors of defendants 1 
to 9 to occupy a portion of the leasehold property on licence. While in such 
occupation, defendants 1 to 9 had demolished a structure and were attempting 
to raise a commercial construction therein; that Defendants 1 to 9 were not 
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'" 
178 
H 
RAMCHANDRA SAKHARAM MAHAJAN ''· DAMODAR TRIMBAK T ANKSALE (0) 
179 
entitled to do so and hence the plaintiff was entitled to recover possession on A 
the strength of his title. Defendants 1 to 9 denied the ciaim of the plaintiff 
and set up title in themselves. 
The plaintiff amended the plaint once. He sought to amend the plaint 
again to pinpoint the disputed property with better particulars. But the trial 
B 
Court dismissed the application for amendment. 
Jn support of his case, the plaintiff produced a number of revenue records 
.J 
and other documents. He did not produce the lease deed dated 21.7.1875 • 
Belatedly, he tried to introduce a certified copy of the lease deed in evidence. 
The trial Court took the view that no foundation had been laid for adducing c 
secondary evidence since what was sought to be produced was only a certified 
copy and .not the original and hence discarded the lease deed. Taking the view 
that the other documents relied upon by the plaintiff were not enough to 
establish the title of the plaintiff, the trial Court dismissed the suit. Defendants 
I to 9 had made a counter claim for relief against the plaintiff in respect of 
a portion of the property and the trial Court found that the counter claim had D 
' 
not been established. Thus the trial Court dismissed the suit as well as the 
counter claim. 
Jn appeal, plaintiff questioned the refusal to permit him to amend the 
plaint and supply better particulars and also refusal of the trial Court to admit 
the certified copy of the lease deed dated 21.7.1985 in evidence. Defendants 1 E 
to 9, though they filed a memorandum of cross objections questioning the 
dismissal of their counter claim filed before the trial Court, did not press it 
and gave up their counter claim. Appellate Court dismissed the appeal. Hence 
the present appeal. 
Allowing the appeal and remanding the matter to the trial Court for F 
fresh trial, the Court 
HELD: 1. The suit is for recovery of possession on the strength of title. 
Obviously, the burden is on the plaintiff to establish that title. No doubt in 
appreciating the case of title set up by the plaintiff, the Court is also entitled G 
to consider the ri·•al title set up by the defendants. But the weakness of the 
defence or the failure of the defendants to establish the title set up by them, 
. would not enable the plaintiff to a decree. [Para 101 (186-Bf 
" 
) 
•. 
2.1. The plaintiff had established his title to the suit property. The 
plaintiff, though somewhat belatedly, attempted to amend the plaint to make H 
180 
SUPREME COURT REPORTS 
(2007) 8 S.C.R. 
A his claim more precise so as to enable the Court to adjudicate upon it more 
satisfactorily. The trial Court ought to have allowed the amendment so as to 
enable it to decide the dispute in a more satisfac
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