Maina Bai & Ors v. Gangotri Bai & Ors.) whereby the First appellate Court has reversed the judgment
Case Details
1 / 15 2025:CGHC:8218 Reserved on 19.11.2024 Delivered on 17.02.2025 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR 1. Smt.Gangotri Bai Wd/o Late Shri Satrughan, aged aobut 40 years, SA No. 545 of 2004 2. Mevalal S/o late Satrughan, aged about 21 years, 3. Dilip S/o late Satughan, aged 17 years, 4. Jeet Kumar S/o late Satrughan aged about 11 years. 5. Sujeet Kumar S/o late Satrughan, aged about 6 years 6. Pushpa Bai D/o Late Satrughan, aged about 12 years. [no.3 to 6 minor represented through mother Gangotri Bai] All resident of village Kauriya, Tah. Masturi, Distt. Bilaspur [C.G.] ... Appellants 1. Smt.Maina Bai Wd/o late Shri Dauram, aged about 49 years. versus 2. Amrit lal S/o late Dauram, aged about 24 years. 3. Bablu S/o late Dauram, aged 16 years. No.3 minor, represented through mother Maina Bai, All resident of village Kauriya, Tah. Masturi, Distt. Bilaspur [C.G.] For appellants : Mr. Sourabh Sharma, Advocate along with Ms. Harneet For Respondent : Mr. Rohit Sharma, Advocate Kaur Khanuja, Advocate ... Respondents Hon'ble Shri Justice Sachin Singh Rajput CAV JUDGMENT 1. Appellants being aggrieved by the judgment and decree dated 08.09.2004
Facts
passed by the 1st Additional District Judge, Bilaspur (for short ‘ First Appellate 2 / 15 Court’), in FA No.20-A/2004 (Maina Bai & Ors. Vs. Gangotri Bai & Ors.) whereby the First appellate Court has reversed the judgment and decree dated 27.01.2004 passed by 5th Civil Judge, Class–I, Bilaspur (in short “trial Court”) in Civil Suit No.195-A/2002 (Gangotri Bai & Ors. Vs. Maina Bai and Ors.) have filed this appeal under Section 100 of CPC, 1908. Parties are herein referred to their original status as in the trial Court. 2. On 21.11.2005 this Court admitted the appeal on the following substantial question of law:- “Whether the finding of the first appellate Court reserving the judgment and decree passed by the trial Court in favour of the appellant that the appellant does not derive any title over the suit property, has been recorded ignoring the documents available on record?” 3. Thereafter on 05.03.2020 during the course of hearing of this appeal this Court framed the following additional substantial question of law:- “Whether the learned lower appellate Court was justified in holding that the plaintiff was required to establish and prove his title before seeking recovery of possession in view of Section 116 of the Evidence Act?” 4. During the pendency of this appeal, an application for taking documents on record under Section 151 of CPC annexing the sale deed dated 01.04.1970 (Annexure A-1) and certified copy of sale deed dated 16.03.1966 (Annexure A/2) was filed. 5. Facts of the present case in nutshell are that the plaintiffs filed a civil suit for possession on the basis of title with respect of property comprised in piece of land bearing Khasra No.238 area 0.20 acres situated at village Kauriya, Tah. Masturi, District Bilaspur Ph. No.36, Revenue Circle Seepat Tahsil & District Bilaspur. Out of that property the dispute is with regard on 0.03 acre of land which is hereinafter referred as ‘suit property’. As per the pleading, the suit 3 / 15 property was given to the original defendant Dauram by original plaintiff Shatrughan for residential purposes. In the year 1987, the original plaintiff asked the original defendant to vacate the suit property. Despite that the vacant possession of the suit property was not handed over to the original plaintiff, therefore, suit for delivery of possession of the suit property was filed. The original plaintiff and the original defendant have died during the pendency of suit. 6. The written statement was filed and it was pleaded that the plaintiffs did not have any title or possession over the suit property and the defendants are in possession of the suit property for the last 50 years. The plaintiff in connivance with the patwari had recorded his name in the revenue records. The defendant has never entered into the suit property with the permission of the plaintiff. Rather the suit property was received by the defendant from the owner of the suit property Vitthtal. It has further been pleaded that the plaintiffs have purchased a land bearing Khasra No.525 admeasuring 0.86 acre through registered sale deed dated 01.04.1970. On this basis, the prayer was made for dismissal of the suit. 7. On the basis of above pleadings, the trial Court framed the following issues and additional issues and gave the findings which are reproduced herein below:- वाद - प्रश्न 1) क्या वादी ग्राम कोनि(cid:18)या प० ह० (cid:7)० - 36 रा निम (cid:7)ं सीपत तह० व जि(cid:27)ला नि(cid:29)लासपुर को भूनिम खसरा क्र०- 238 रक(cid:29)ा 0.20 एक(cid:18) का भूनिम स्वामी व नि(cid:7)ष्कर्ष(cid:11) प्रमाणि(त मका(cid:7) मालिलक है? 2) क्या उक्त भूनिम में से ०. ०३ एक(cid:18) भूनिम जि(cid:27)से अ(cid:7)ुसूची "अ" में अ (cid:29) स ड से हाँ दर्शाा(cid:11)या गया है? 3) क्या वादी (cid:7)े प्रतितवादों को उक्त भूनिम में मका(cid:7) (cid:29)(cid:7)ाकर नि(cid:7)वास प्रयो(cid:27)(cid:7) हेतु प्रमाणि(त 4 / 15 निदया था? 4) क्या प्रतितवादोी द्वारा उक्त मका(cid:7) एवं भूनिम को खाली कर(cid:7)े से इंकार निकया (cid:27)ा रहा है? 5) क्या वादी वाद ग्रस्त मका(cid:7) एवं भूनिम का रिरक्त आति;पत्य प्राप्त कर(cid:7)े को आति;कारी हैं? 6) सहायता एवं व्यय ? हाँ हाँ कं तिडका २३ के अ(cid:7)ुसार अतितरिरक्त वाद - प्रश्न 7) क्या वानिद(cid:7)ी (cid:7)े ख० (cid:7)ं० 238 रक(cid:29)ा 0. 20 को निवति;वत क्रय निकया है? प्रमाणि(त 8) क्या प्रतितवादी वाद भूनिम के ख० (cid:7)० 238 रक(cid:29)ा 0.20 एक(cid:18) पर नि(cid:29)ठ्ठल (cid:7)े प्रमाणि(त (cid:7)हीं (cid:27)मींदारी उन्मूल(cid:7) के समय से प्रतितवादी के निपता को नि(cid:7)वास व (cid:29)ा(cid:18)ी के लिलए निदया था? 8. In order to prove the pleadings, plaintiff had examined as many as three witnesses and defendant examined as many as three witnesses. 9. The trial Court allowed the suit vide its judgment dated 27.01.2004 and directed the defendants to vacate the suit property within a period of two months. Issue Nos.1, 3 & 7 were found to be proved. Issue Nos.2, 4 and 5 were decided in positive. Issue No.7 was not proved. On issue No.6 (relief and cost) the defendants were to vacate the suit property within a period of two months. 10. Challenging the same, the first appeal under Section 96 of CPC was filed by the defendants before the first appellate Court. By the impugned judgment and decree, the appeal filed by the defendants was allowed and the suit of the plaintiffs was dismissed. As a result the judgment and decree of the trial Court
Legal Reasoning
was set aside. The same is under challenge before this Court in this appeal. This appeal was admitted on above-stated substantial question of law and additional substantial question of law formulated by this Court. 11. Learned counsel for the appellants/ plaintiffs submits that first appellate Court 5 / 15 committed an error in allowing the appeal filed by the respondents/ defendants by setting aside the judgment and decree passed by the trial Court. He further submits that the first appellate Court misdirected itself and gave a finding that the plaintiffs could not have the title over the suit property, therefore, they are not entitled for grant of decree of eviction against the respondents/defendants. He further submits that the plaintiffs were able to prove the title on the basis of preponderance of probability by exhibiting relevant documents particularly Ex. C/2 ( संर्शाो;(cid:7) पं(cid:27)ी) in which it has been mentioned that the plaintiffs were in possession of the suit property. Learned counsel for the appellants would further submit that vide Ex.P/5 the correction in the sale deed which was executed in the year of 1970 was made, in which Khasra No.525 which has been mentioned wrongly, was corrected to Khasra No.238. He further submits that the Khasra No.525 was already sold in the year of 1966. Therefore, it cannot be sold in year of 1970. For that purposes, the application for taking additional documents on record was filed which may be treated as application under Order 41 Rule 27 of CPC and the sale deeds executed in the year of 1970 and 1966 may be taken as additional evidence in this appeal. He further goes on to submit that substantial question of law and additional substantial question of law should be decided in favour of the plaintiffs, particularly, looking to the Ex.P/1 an agreement on the part of the original defendant that he would vacate the suit premises by 01.01.1988. He further submits that once the factum of possession was proved by the plaintiffs, the defendants were stopped from taking a plea of challenge of the title of the plaintiff in light of Section 116 of the Indian Evidence Act, 1872 (for short ‘Act of 1872’). He further submits that the defendants have claimed their title over the suit property by virtue of saying that they have received the property from one 6 / 15 Vitthal but no documentary evidence is available to suggest the same. Learned counsel for the plaintiffs submits that by leading cogent evidence plaintiffs had proved their title over the suit property and it has also been proved that the original defendant was given permissive possession for residential purpose, therefore, the finding of the appellate Court is perverse and contrary to the record. He further submits that the trial Court gave a categorical finding with regard to issues No.1 and 3 in favour of the plaintiffs and the same has not been set aside by the first appellate Court. Therefore, in sum and substance the substantial question of law and additional substantial question of law which have been framed by this Court may be decided in favour of the appellant and appeal may be allowed and the impugned judgment and decree may be set aside restoring the judgment and decree of the trial Court. 12. To buttress the submission he placed reliance upon the judgment passed by the Hon’ble Supreme Court in case of Bansraj Laltaprasad Mishra vs Stanley Parker Jones reported in AIR 2006 SC 3569 in which the Hon’ble Supreme Court has held in paras 13 to 18 as under:- “13. It is not in dispute that on 1-5-1971 an agreement was entered into. What the defendant tried to establish was that prior to the date of agreement one Shamsher Khan had put the defendant in possession and therefore the subsequent agreement with the plaintiff- appellant was really of no consequence. This aspect was dealt by the learned single Judge in detail, it was held that the concept of constructive possession was clearly applicable even if the defendants' case of Shamsher Khan having put him in possession is accepted, Illustrations were given to buttress the Interpretation given. The learned single Judge. was of the view that the word "possession" in Section 116, also includes constructive possession. Unfortunately the Division Benchc has not dealt with this aspect. It would be relevant at this point of time to take note of what is stated in Section 116 of the Evidence Act. The same reads as follows: 7 / 15 "Estoppel of tenant; and of licensee of person in possession No tenant of immoveatle property, or person claiming through: such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immoveable property, and no person who came upon any immoveable property by the licence of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such licence was given." 14. The "possession in the instant case relates to second limb of the Section. It is couched in negative terms and mandates that a person who comes upon any immoveable property by the license of the person in possession thereaf. shall not be permitted to deny that such person had title to such possession at the time when such license was given. 15. The underlying policy of Section 116 is that where a person has been brought into possession as a tenant by the landlord and if that tenant is permitted to question the title of the landlord at the time of the settlement then that will give rise to extreme confusion in the matter of relationship of the landlord and tenant and so the equitable principle of estoppel has been incorporated by the legislature in the said section. 16. The principle of estoppel arising from the Contract of tenancy is based upon a healthy and salutory principle of law and justice that a tenant who could not have got possession but for his contract of tenancy admitting the right of the landlord should not be allowed to launch his landlord in some inequitable situation taking undue advantage of the possession that he got and any probable defect in the title of his landlord. It is on account of such a contract of tenancy and as a result of the tenant's entry into possession on the admission of the landlord's title that the principle of estoppel is attracted. 17. Section 116 enumerates the principle of estoppel which is merely an extension of the principle that no person is allowed to approbate and reprobate at the same time. 18. As laid down by the Privy Council in Krishna Prasad Lal v. Barabani Coal Concern Ltd. (AIR 1937 PC. 251), "It (Sec. 116) deals with one cardinal and simple estoppel and states it first as applicable between landlord and tenant and then as between licensor and licensee, a 8 / 15 distinction which corresponds to that between the parties to an action for rent and the parties to an action for use and occupation".” 13. He further placed reliance upon the Judgment passed by the Hon’ble Supreme Court in the case of Sri S. K. Sharma V. Mahesh Kumar Verma reported in AIR 2002 SC 3294 in which the Hon’ble Supreme Court has held in Paras 13 to 16 as under:- “13.Further, the contention of the learned senior counsel for the respondent that the railway administration has to prove that the property in question was belonging to it before invoking Section 138 is totally misconceived because once it is admitted that respondent was given possession of the premises in question by order dated 17- 1-1967 as he was entitled for the same while working as CPRO of the Department, he could not be permitted to deny the title of the railway administration. Admittedly, respondent was inducted because he was in railway service. Now, he is estopped from challenging the title of the appellant over the premises in question. For this purpose, we would refer to Section 116 of the Evidence Act which reads thus - "116. Estoppel of tenant; and of licensee of person in possession - No tenant of immovable property or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the license of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such license was given" 14. Second part of the aforesaid section clearly provides that no person who came upon any Immovable property by the license of the person in possession thereof shall be permitted to deny the title to such person to such possession of the property. He cannot deny the same during the pendency of such license or sub-lease. Such estoppel continues to operate so long as licensee or sub- tenant has not openly restored possession by surrender to such person. This rule of estoppel would cease to operate only after such licensee or sub- tenant has been evicted. This position does not require reference to many 9 / 15 judgments. However, we would refer to the decision in S. Thangappan v. P. Padmavathy [(1999) 7 SCC 474] in which the appellant tenant who was running an automobile workshop since 1962 disputed the title of respondent-landlady on the ground that certain Devasthanam was the actual landlord. This Court held that Section 116 of the Evidence Act, 1872 puts an embargo on a tenant of an immovable property, during the continuance of his tenancy to deny the title of his landlord at the beginning of his tenancy. The significant words under it are 'at the beginning the tenancy. So a tenant once inducted as a tenant by a landlord, later cannot deny his landlord's title. However, defective the title of such landlord may be, such tenant cannot deny his title. 15. Further in Vashu Deo v. Balkishan [(2002) 2 SCC 50) the question that came up for consideration before the Court was-whether a sub-tenant could have directly attorned to the owner Trust by-passing the tenant? The Court while rejecting such plea of sub-tenant considered the provision of Section 116 of the Evidence Act and held thus:- “…. Section 116 of the Evidence Act, which codifies the common law rule of estoppel between landlord and tenant, provides that no tenant of immovable property or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had at the beginning of the tenancy, a title to such immovable property. The rule of estoppel so enacted has three main features; (i) the tenant is estopped from disputing the title of his landlord over the tenancy premises at the beginning of the tenancy, (ii) such estoppel continues to operate so long as the tenancy continues and unless the tenant has surrendered possession to the landlord; and (iii) Section 116 of the Evidence Act is not the whole law of estoppel between the landlord and tenant. The principles emerging from. Section 116 can be extended in their application and also suitably adapted to suit the requirement of an individual case. Rule of estoppel which governs an owner of an immovable property and his tenant would also mutatis mutandis govern a tenant and his sub- tenant in their relationship inter se. As held by the Privy Council in Currimbhoy and Co. Ltd. v L.A. Creet [AIR 1933 PC 29) and Bilas Kunwar v Desraj Ranjit Singh [AIR 1915 PC 96] the estoppel continues to operate so long as the 10 / 15 tenant has not openly restored possession by surrender to his landlord. It follows that the rule of estoppel ceases to have applicability once the tenat has been evicted. His obligation to restore possession to his landlord is fulfilled either by actually fulfilling the obligation or by proving his landlord's title having been extinguished by his landlord's eviction by a paramount title-holder…" 16. In this view of the matter, respondent cannot be permitted to contend that property was not belonging to the railway administration. Whether the railway administration is owner, mortgagee, lessee or licensee is not required to be decided in such proceedings at the instances of sub-lessee or licensee of railway administration.” 14. Learned counsel for the appellants further relied upon the Judgment reported in AIR Online 2024 SC 89 in the case of Government of Goa through the Chief Secretary V. Maria Julieta D’souza (D) in which the Hon’ble Supreme Court has held in para 8 as under:- “8. On law, the position is as follows. There is a clear distinction between burden of proof and standard of proof. This distinction is well- known to civil as well as criminal practitioners in common law jurisprudence. What Ms. Ruchira sought to point out is that the documents relied on by the plaintiff did not point out the existence of title at all. She is right to the extent that no single document in itself concludes title in favour of the plaintiff, but this is not an issue of burden of proof. This is a matter relating to the sufficiency of evidence. While inquiring into whether a fact is proved3, the sufficiency of evidence is to be seen in the context of standard of proof, which in civil cases is by preponderance of probability. By this test, the High Court has correctly arrived at its conclusion regarding the existence of title in favour of the plaintiff on the basis of the evidence adduced.” 15. Mr. Rohit Sharma, learned counsel for defendants submits that the plaintiff has to succeed on his own strength and not from the weakness of the defence. Inviting attention of the statement of the plaintiff PW-1, namely, Gangotri Bai has stated that when she came after marriage, a house in the suit property was 11 / 15 already constructed meaning thereby the possession of the defendants on the suit property was from the time immemorial. He further submits that though no reply on application for taking documents on record was filed, however, the document which are purportedly to be taken as additional evidence in the appeal is of the year of 1966 and 1970. The suit was filed in the year of 1987 and the appeal was also allowed. After, lapse of so many years, the document was filed along with the said application could not be taken on record and the parameters contained in the provision of Order 41 Rule 27 of CPC have not been meted out by the plaintiff in that application, therefore, the application may be rejected. He relied on decision of Supreme Court in case of Smriti Debbarma (Dead) through legal representative Vs. Prabha Ranjan Debbarma and Others reported in 2022 LiveLaw (SC) 19. 16. I have heard learned counsel for the parties and perused the documents available on record. 17. The pleadings reflects that the original plaintiff came with a plea that he is the title holder of property comprised in piece of Khasra No.238 area 0.20 acre out of which the permission was granted to the defendant to construct a small Kaccha House being of same caste in respect of 0.03 acre of land which is the suit property as described in Schedule A, B, C & D. A request was made to vacate the suit property, the same was denied and therefore, the suit was filed. 18. Issue Nos.1 & 2 were framed with regard to title of the suit property as to whether the original plaintiff was title holder and the landlord of the suit property. In this context, a further issue was framed whether the father of defendants was given the suit property by Vitthal during abolition of malguzari for residential purpose. The statement of PW-1 was considered in which she has stated that the dispute is with regard to 0.03 acre of the suit property and 12 / 15 the same is in her name in records of Patwari and prior to it, it was recorded in the name of her husband and after the death of her husband it was recorded in her name. She happens to prove Kistband Khatoni (Ex.P-2), Map Ex.P/3 and Khasra Panchsala Ex.P/4. She has also exhibited the correction deed with respect to sale deed dated 01.04.1970 as Ex. P/5 in which Kharsa No.525 was corrected to Khasra No.238. The plaintiff witnesses Model (PW/2) and Rashadas (PW/3) also stated the same. She denied the fact that the husband has purchased the Khasra No.525 of area 0.86 dismil. The factum of possession of suit property was proved by statement of PW-1, PW-2 and PW- 3. The defendant tried to establish that the Kachha house in the suit property which was made by his father in Kharsra No.238 and also tried to suggest that the said land was given by one Vitthal to his father as gift, however, he stated that he has not brought any documentary evidence in this regard. 19. In this context, the recital of Ex. P/1 is necessary to be looked into. Ex.P/1 which is an agreement in which it has been mentioned that the father of original defendant constructed a house on the suit property. One Bhaiyaram Satnami sold the suit property to Shatrughan Satnami for about 15 years ago. 20. It further indicates that original plaintiff, namely, Shatrughan Satnami asked the defendant to vacate the suit property and thereafter stated that by 01.01.1988 he will vacate the suit property. In the statement, he did not deny the signature but he further stated that the signature was taken forcibly. 21. Apart from this, Ex.P/5 is a correction deed with respect to sale deed dated 01.04.1970 in which Khasra No.525 admeasuring 0.86 decimal was mentioned was corrected to Khasra No.238 admeasuring 0.20 acre. The defendant has not challenged the said correction. Though the sale deed dated 01.04.1970 was not filed during the pendency of suit or appeal and the same 13 / 15 was presented before this Court by way of an application to be presented as an additional document. The plaintiffs by the application for taking documents on record have annexed the sale deed dated 01.04.1970 in respect of Khasra No.525 and another sale deed dated 17.03.1966 in respect of Khasra No.525 Area 0.87 decimal. These documents were not filed during pendency of trial or first appeal. However, these documents are necessary for substantial cause of justice. Hence the application is treated as one filed under Order 41 Rule 27 CPC and hereby allowed. The documents are taken as additional evidence in this appeal. Therefore, it can safely be held that the plaintiff has purchased Khasra No.238 which is the total suit property and out of which 0.3 acre was disputed, the dispute is between the plaintiffs and the defendants only for eviction of the suit property. Another important document is Ex.C/2 Sanshodhan Panji exhibited by the trial Court itself in which the clarification is mentioned that the document where Kharsa No.525 area 0.86 acre is recorded but the purchaser was in possession of Khasra No.238 area 0.20 decimal. According to the possession, the Khasra number and area was corrected. 22. Apart from this Ex.P/1 is with respect to Khasra No.238 in which name of original plaintiff Shatrughan Satnami is recorded as bhoomi swami. This factum is also proved in Ex.P/2 Kistband Khatoni. After the death of original plaintiff, namely, Shatrughan Satnami, Ex.P/4 (Panch Shala Khasra) indicates the recording of the names of plaintiffs in the revenue records. 23. While deciding the issue No.7, trial Court gave a categorical finding with respect to title of the suit property in his name, no documentary evidence had been placed on record by defendants to establish their title. By applying the 14 / 15 principle of preponderance of probabilities, trial Court decided the issues in favour of the plaintiffs. 24. Issue No.8 is with respect to the suit property bearing Khasra No.238 admeasuring 0.20 acre which was given by Vitthal to the father of the defendant for residence or garden after the abolition of Zamidari System. The trial Court while deciding the issue gave a categorical finding that to prove this fact no documentary evidence was presented and no evidence was brought on record. He further gave a finding that the factum of gifting the suit property has not been proved, it has further observed that the name of the father of original defendants was not recorded in the revenue records, in the light of the provisions contained in Chhattisgarh Land Revenue Code, 1959 and gave a finding that this pleading is incorrect. 25. The first appellate Court had given much emphasis on the factum of title and gave a finding that original sale deed by which the original plaintiff purchased the property from Bhaiyaram has not been filed and also held that the recording of names of the plaintiffs in the revenue records is on account of connivance with the Patwari. Further emphasis was also made that the plaintiffs have not been able to prove the title of suit property in favour of Bhaiyaram from whom the father of plaintiffs have purchased the suit property. 26.From the record it is quite vivid that the defendants are in possession of Khasra No.238 area 0.03 acre out of total 0.20 acre. The total suit property was purchased by original plaintiff Shatrughan from one Bhaiyaram by a registered sale deed dated 01.04.1970. However the Khasra No.525 area 0.86 decimal was wrongly mentioned. The same was corrected by correction deed Ex.P/5. Apart from this revenue documents exhibited clearly envisages that 15 / 15 suit property was earlier recorded in the name of original plaintiff Shatrughan and thereafter in the name of plaintiff Ganga. The additional evidence in the form of sale deed dated 16.03.1966 taken in this appeal also proves that the Khasra No.525 area 0.86 decimal was already sold in the year 1966. Therefore, it is very clear that by mistake Khasra No.525 area 0.86 decimal was mentioned in the sale deed dated 10.04.1970 which was subsequently corrected. Finding of the learned first appellate Court that the plaintiffs could not prove the title of suit property in favour of Bhaiyaram appears to be erroneous as the same was purchased by father of plaintiff through a registered sale deed and correction was also made. Submission of Shri Sharma, Advocate that plaintiff has to succeed on his own strength cannot hold water as the plaintiff has successfully proved his case. Rather the defendants have miserably failed to prove that they have received the suit property from one Vitthal. With due respect the case law cited by Shri Sharma does not help the defendants as the plaintiffs by preponderance of probability succeeded on his own strength to prove the title over the suit property. 27. From the above discussion substantial question of law is decided in positive in favour of plaintiffs. Additional substantial question of law is decided in negative in favour of plaintiffs. The impugned judgment and decree dated 08.09.2004 passed by First Appellate Court is set aside and judgment and decree dated 27.01.2004 passed by trial Court is restored. Appeal thus allowed. 28. No order as to cost. Decree be drawn accordingly. Saxena/Parul Sd/-Sd/- (Sachin Singh Rajput) Judge