‘Plaintiff to Win on his Evidence’ Vs. ‘EACH PARTY to Succeed on its own Title’

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Jojy George Koduvath

The March of Law:

BURDEN OF PROOF is ALWAYS STATIC; the onus of proof shifts.
ADVERSE INFERENCE is drawn if a party withholds documents.
Once the plaintiff creates a HIGH DEGREE OF PROBABILITY onus SHIFTS to the defendant
Burden of Proof LOSES SIGNIFICANCE if both parties adduced evidence.
Even if no plea, propouner has to CLEAR SUSPICION, if any.
Sec. 114 Evidence Act (Sec. 119 BSA) allows the COURT TO PRESUME certain facts.
COURT to REQUIRE the facts to be proved, in its discretion.
If Rival Claims, EACH PARTY to succeed on STRENGTH OF ITS OWN TITLE.

Part I

Plaintiff to Win on his Evidence Vs. Each Party to Succeed on its own Title

The Supreme Court of India had taken an obdurate stand in certain decisions:

A Plaintiff has to win the title-suit on his evidence; not on the weakness of the adversary — Ratnagiri Nagar Parishad v. Gangaram Narayan Ambekar, (2020) 7 SCC 275.

The Apex Court softened its stand and took a malleable position in certain other cases:

Court is also entitled to consider the rival title set up by the defendants — Ram Chandra Sakharam Mahajan Vs. Damodar Trimbak, AIR 2007 SC 2577.
Once the plaintiff has been able to create a high degree of probability, it is for the defendant to discharge his onus — R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami V.P. Temple, (2003) 8 SCC 752.
Even if a party to the suit has no burden, the Court can draw an adverse inference if he withholds important documents in his possession — Gopal Krishnaji Ketkar v. Mahomed Haji Latif, AIR 1968 SC 1413
Burden of Proof LOSES SIGNIFICANCE if both parties adduced evidence, it remains academic — Sushil Kumar v. Rakesh Kumar, 2003-8 SCC 673, Mohd. Abdullah Azam Khan v. Nawab Kazim Ali Khan, 2022 (11 ) JT 214: 2022 (16 ) SCALE 689: 2023 KLT OnLine 1084 (SC).

Now, in Bhag Singh v. Basant Kaur, 2026 INSC 983 ; 2026 KHC(Online) 6699 ; 2026 KLT(Online) 4549 (Prashant Kumar Mishra, Shree Chandrashekhar, JJ), the supreme court has made a conspicuous shift in law on burden of proof in the matter of a title suit. It is held as under:

“It is a settled principle that where rival claims of ownership are asserted, each party must succeed on the strength of its own title and not on the weakness of the opponent’s case.[See: Ramchandra Sakharam Mahajan vs. Damodar Trimbak Tanksale (Dead) and Others, (2007) 6 SCC 737 at Para 13.]”

Part II

If Rival Claims, each Party to Succeed on Strength of its own Title

In Bhag Singh v. Basant Kaur, 2026 INSC 983 ; 2026 KHC(Online) 6699 ; 2026 KLT(Online) 4549 (Prashant Kumar Mishra, Shree Chandrashekhar, JJ), it is held as under:

“It is a settled principle that where rival claims of ownership are asserted, each party must succeed on the strength of its own title and not on the weakness of the opponent’s case.[See: Ramchandra Sakharam Mahajan vs. Damodar Trimbak Tanksale (Dead) and Others, (2007) 6 SCC 737 at Para 13.]

Plaintiff Seeking Declaration of Title Must Establish His Own Case

Our Apex Court expressed it in Venkatesha v. K.M. Venkatamuniyappa, 2026 INSC 705, as under:

“Even as the very preliminary step, the plaintiff’s title over Sy. No.162 is nebulous. A plaintiff seeking declaration of title must succeed on the strength of his own case and not on the perceived weakness of the defence. It is trite that title cannot rest on surmises or probabilities. The burden squarely rested on the plaintiff to establish that the property conveyed under Sale Deeds I, II and III, though described throughout as Sy. No.1/4, was in reality Sy. No.162. Such burden remained undischarged.”

Title be Established by Title Deeds

A party to the suit has to establish the title to a property by producing its title deed. In Title declaration suits, survey plan & revenue records are less significant.

Elambilan Nani Amma v. Mulavana Antony (K. Babu, J.), 2023-7 KHC 418;
Laxkshmi B. v. Suku (A. Badharudeen, J.), 2024-1 KerHC 380.

Suit on Title & Weakness of the Defence

A Plaintiff has to win the title-suit on his evidence; not on the weakness of the adversary. See:

Kishan Chand v. Gautam Gaur Hitkarak Sabha, Kota (Vikram Nath, Sandeep Mehta, JJ.) 2026 INSC 448 (Even assuming that the defendant has failed to conclusively establish his title, the same would not enure to the benefit of the plaintiffs.)
Baha Kartar Singh Bedi v. Dayal Das, AIR 1939 PC 201 (Referred to in: K. M. Paul v. K. Pradeep, ILR 2006-2 Ker 19),
Jagdish Narain v. Nawab Said Ahmed Khan, AIR 1946 PC 59 (Referred to in: Dinesh Jain v. Jeewanlal Lala, AIR 2013 MP 85)
Moran Mar Basselios Catholics v. Most Rev. Mar Poulose Athanasius, AIR 1954 SC 526 (ejectment suit must succeed on the strength of Plaintiffs’ own title)
Heera Devi v. Official Assignee Bombay, AIR 1958 SC 448.
Moran Mar Basselios Catholicos v. Thukalan Paulo Avira, AIR 1959 SC 31 (referred to in: Paturu Sundaraiah v. Suri Ranganayakamma, AIR 2022 AP 71),
Brahmanand Puri v. Nek Puri, AIR 1965 SC 1506.
Nagar Palika, Jind v. Jagat Singh, Advocate, (1995) 3 SCC 426.
Sayed Muhammed Mashur Kunhi Koya Thangal v. Badagara Jumayath Palli Dharas Committee, 2004-7 SCC 708.
Yamuna Nagar Improvement Trust v. Khairati Lal, (2005) 10 SCC 30.
Anil. Rishi vs. Gurbaksh Singh, (2006) 5 SCC 558; City Municipal. Council, Bhalki Vs. Gurappa, (2016) 2 SCC 200),
Rangammal v. Kuppuswamy, (2011) 12 SCC 220
Union of India v. Vasavi Co-operative Housing Society Limited, (2014) 2 SCC 269,
Jagdish Prasad Patel v. Shivnath, (2019) 6 SCC 82.
Smriti Debbarma v. Prabha Ranjan Debbarma, 2023 SCC OnLine SC 9
P. Kishore Kumar Vs. Vittal K. Patkar, 2024-1 CTC 547; 2023-4 CurCC(SC) 278)

Plaintiff to Win Recovery Suit, on Strength of his Title

Following are the often cited decisions on this subject-

Moran Mar Basselios Catholics v. Most Rev. Mar Poulose Athanasius, AIR 1954 SC 526,
Brahma Nand Puri v. Neki Puri, AIR 1965 SC 1506,
City Municipal Council Bhalki v. Gurappa, 2016-2 SCC 200
Bajaranglal Shivchandrai Ruia v. Shashikant N. Ruia, (2004) 5 SCC 272
R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami, AIR 2003 SC 4548: (2003) 8 SCC 752
Vijay Pullarwar v. Shri Hanuman Deostan, (2019) 11 SCC 718

In Vijay Pullarwar v. Shri Hanuman Deostan, (2019) 11 SCC 718, the suit for possession instituted by the plaintiffs trust on the basis of title, was found to be devoid of merits; for, there was no reference in the registration application of the public trust under the BPT Act, 1950 or in schedule I, where to record the properties of the public trust that the suit property belonged to the trust. Our Apex Court held as under:

“Needless to observe that the plaintiffs/respondents were primarily obliged to establish their title in the suit house bearing No.878 in Circle No.3 where the Padukas of Saint Haridas Baba have been installed, as being the property of the plaintiff trust. The plaintiffs must succeed or fail on the title they establish; and if they fail to do so, they must fail to get the relief of possession irrespective of title of the defendant in the suit property (See: Brahma Nand Puri v. Naki Puri, (1965) 2 SCR 233 and Bajaranglal Shivchandrai Ruia v. Shashikant N. Ruia, (2004) 5 SCC 272).”

In City Municipal Council Bhalki v. Gurappa, 2016-2 SCC 200, it is held as under:

“31. It is a settled position of law that in a suit for declaration of title and possession, the onus is upon the plaintiff to prove his title. Further, not only is the onus on the plaintiff, he must prove his title independently, and a decree in his favour cannot be awarded for the only reason that the defendant has not been able to prove his title, as held by this Court in Brahma Nand Puri v. Neki Puri, AIR 1965 SC 1506….”

In Brahma Nand Puri v. Neki Puri, AIR 1965 SC 1506, the Apex Court held as under:

“The plaintiff’s suit being one for ejectment he has to succeed or fail on the title that he establishes and if he cannot succeed on the strength of his title his suit must fail notwithstanding that the defendant in possession has no title to the property… …”

Part III

Suit on Title – If High Degree of Probability Established, Onus Shifts.

A Plaintiff has to win the title-suit on his evidence; not on the weakness of the adversary. But it must be noted that the plaintiff need to show only a high degree of probability; and that it shifts the onus on the defendant.

This principle applies in both civil and criminal cases. In M. Srinivasulu Reddy v. State Inspector of Police, 1991 (3) ALT 542, 1993 CriLJ 558, it is held as under:

“The prosecution cannot take advantage of the weaknesses of the defence or cannot take advantage of the inconsistent stand taken by the accused from time to time. The prosecution must stand on its own legs basing on the evidence that has been let in by it.”

The Supreme Court of India, in Ratnagiri Nagar Parishad v. Gangaram Narayan Ambekar, (2020) 7 SCC 275, held as under:

“The initial burden of proof is on the plaintiffs to substantiate his cause, if he failed to discharge the same, the weakness in the defense cannot be the basis to grant relief to the plaintiffs and burden cannot be shifted on the defendants.”

In R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami, AIR 2003 SC 4548: (2003) 8 SCC 752, the law is stated in the following terms :

“A fact is said to be ‘proved’ when, if considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of a particular case, to act upon the supposition that it exists. It is the evaluation of the result drawn by applicability of the rule, which makes the difference. …”
In a suit for recovery of possession based on title it is for the plaintiff to prove his title and satisfy the court that he, in law, is entitled to dispossess the defendant from his possession over the suit property and for the possession to be restored to him. However, as held in A. Raghavamma v. A. Chenchamma there is an essential distinction between burden of proof and onus of proof:
- burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence.
In our opinion, in a suit for possession based on title once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant it is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiff’s title.
In the present case, the trial Court and the first appellate Court have noted that the plaintiff has not been able to produce any deed of title directly lending support to his claim for title and at the same time the defendant too has no proof of his title much less even an insignia of title. Being a civil case, the plaintiff cannot be expected to proof his title beyond any reasonable doubt; a high degree of probability lending assurance of the availability of title with him would be enough to shift the onus on the defendant and if the defendant does not succeed in shifting back the onus, the plaintiff’s burden of proof can safely be deemed to have been discharged. In the opinion of the two Courts below, the plaintiff had succeeded in shifting the onus on the defendant and, therefore, the burden of proof which lay on the plaintiff had stood discharged. …”.
The suit property, which is a shop, is situated just adjoining the property owned by the temple. It has come in the evidence that the property which is now owned by the temple was at one time owned by the forefathers of the plaintiff and they made an endowment in favour of the temple. The father of the plaintiff, and then the plaintiff, continued to be the trustees. The trouble erupted when in the late sixties the Charity Commissioner appointed other trustees and Chief Executive Officer of the trust dislodging the plaintiff from trusteeship. The plaintiff staked his claim to trusteeship of the temple submitting that the office of the trustee of the temple was hereditary and belonged to the plaintiff. The plaintiff was managing the trust property as trustee while the property adjoining to the property of the temple, i.e. the suit property, was in possession of the plaintiff as owner occupied by the tenant, the defendant No.2., inducted as such by the father of the plaintiff. At the instance of the Chief Executive Officer of the trust, the defendant No.2, during the continuance of the tenancy in favour of the plaintiff, executed a rent note in favour of the temple attorning the latter as his landlord. This the defendant no.2 could not have done in view of the rule of estoppel as contained in Section 116 of the Evidence Act. It was at the instance of the newly appointed trustees and the Chief Executive Officer who on behalf of the temple started claiming the suit property in occupation of the tenant, defendant No.2, to be trust property belonging to the temple. But for this subsequent development the title of the plaintiff to the suit property would not have been in jeopardy and there would have been no occasion to file the present suit.
The learned counsel for the temple, defendant-respondent No.1, faintly urged that the appellant being a trustee of the temple was trying to misappropriate the property belonging to the temple. For such an insinuation there is neither any averment in the written statement nor any evidence laid. Such a submission made during the course of hearing has been noted by us only to be summarily rejected. We have already held that the appellant is the owner of the suit property entitled to its possession and recovery of arrears of rent from the defendant No.2.
… A high degree of preponderance of probability proving title to the suit property was raised in favour of the appellant and the courts below rightly concluded the burden of proof raised on the plaintiff having been discharged while the onus shifting on the defendant remaining undischarged. ..”
(Quoted in: Anil. Rishi vs. Gurbaksh Singh, (2006) 5 SCC 558; City Municipal. Council, Bhalki Vs. Gurappa, (2016) 2 SCC 200)

In Smriti Debbarma v. Prabha Ranjan Debbarma, 2023 SCC OnLine SC 9,it is held bu our Apex Court as under:

“31. The burden of proof
- ^{[See Paragraph 19 in Anil Rishi v. Gurbaksh Singh, (2006) 5 SCC 558 where the expression ‘burden of proof’ is used in three ways, namely, (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later; (ii) to make that of establishing a proposition as against all counter-evidence; and (iii) an indiscriminate use in which it may mean either, or both of the others.]}
to establish a title in the present case lies upon the plaintiff as this burden lies on the party who asserts the existence of a particular state of things on the basis of which she claims relief [See Addagada Raghavamma v. Addagada Chenchamma and Another, AIR 1964 SC 136.] This is mandated in terms of Sec. 101
- ^{[Sec. 101: Burden of Proof.- Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.]}
of the Evidence Act, which states that burden on proving the fact rests with party who substantially asserts in the affirmative and not on the party which is denying it. This rule may not be universal and has exceptions,[See Ss. 103, 104 and 105 of the Evidence Act.] but in the factual background of the present case, the general principle is applicable. In terms of Sec. 102
- ^{[Sec. 102: On whom the burden of proof lies.- The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.]}
of the Evidence Act, if both parties fail to adduce evidence, the suit must fail.[See Anil Rishi v. Gurbaksh Singh, (2006) 5 SCC 558.] Onus of proof, no doubt shifts and the shifting is a continuous process in the evaluation of evidence, but this happens when in a suit for title and possession, the plaintiff has been able to create a high degree of probability to shift the onus on the defendant. In the absence of such evidence, the burden of proof lies on the plaintiff and can be discharged only when he is able to prove title.[See R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami V.P. Temple and Another, (2003) 8 SCC 752.] The weakness of the defence cannot be a justification to decree the suit. [See Union of India and Others v. Vasavi Cooperative Housing Society Limited and Others, (2014) 2 SCC 269.] The plaintiff could have succeeded in respect of the Schedule ‘A’ property 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 of Ss. 101 and 102 of the Evidence Act. [See Sebastiao Luis Fernandes (DEAD) Through LRs. And Others v. K.V.P. Shastri (DEAD) Through LRs. And Others, (2013) 15 SCC 161.]
Therefore, it follows that the plaintiff should have satisfied and discharged the burden under the provisions of the Evidence Act, failing which the suit would be liable to be dismissed.”

Court is Entitled to Consider the Title set up by the Defendants also

In Ram Chandra Sakharam Mahajan Vs. Damodar Trimbak, AIR 2007 SC 2577, it is observed –

In a recovery on title suit, the burden is on the plaintiff to establish title.
Court is also entitled to consider the rival title set up by the defendants
Weakness of defence to establish title, would not enable plaintiff to a decree.

The Apex Court held:

“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 to consider the rival 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. There cannot be any demur to these propositions.”
“14. We find that the trial Court and the appellate Court were not justified in refusing the amendment of the plaint sought for by the plaintiff. No doubt there had been delay in seeking amendment but that delay could have been compensated by awarding costs to the contesting defendants 1 to 9. Therefore, we are satisfied that the amendment sought for by the plaintiff ought to have been allowed. We are inclined to allow the amendment sought for, since it would enable the Court to pin-pointedly consider the real dispute between the parties and would enable it to render a decision more satisfactorily to its conscience. We, therefore, allow the amendment as sought for by the plaintiff at a belated stage. The amendment will be carried out by the plaintiff in the trial Court within three months from this date as per the practice followed in the trial Court. Obviously defendants 1 to 9 would have an opportunity to file an additional written statement to the amended plaint. They will be entitled to file an additional written statement within a period of four months from the date of this judgment.”

Burden of Proof Loses Significance

Burden of proof loses its importance –

if both parties adduced evidence
if there is sufficient evidence on an issue.

In such a situation, it remains academic:

Chidambara Sivaprakasa Pandara Sannadhigal v. Veerama Reddi, 49 IA 286 303: AIR 1922 PC 292 (referred to in Seturatnam Aiyar v. Venkatachala Gounden, (1919) 47 IA 76, and Kumbham Lakshmanna v. Tangirala Venkateswarlu, AIR 1949 PC 278);
Sushil Kumar v. Rakesh Kumar, (2003) 8 SCC 673,
Raghunathi v. Raju Ramappa Shetty, AIR 1991 SC 1040;
Mohd. Abdullah Azam Khan Vs. Nawab Kazim Ali Khan,(1976) 3 SCC 32

When evidence has been led by both sides, “onus” is out of place

In Kalwa Devadattam vs. Union, AIR 1964 SC 880, it is held – where evidence has been led by the contesting parties, abstract considerations of onus are out of place and truth or otherwise must always be adjudged on the evidence led by the parties. The Court held as under:

“The question of onus probandi is certainly important in the early stages of a case. It may also assume importance where no evidence at all is led on the question in dispute by either side; in such a contingency the party on whom the onus lies to prove a certain fact must fail. Where however evidence has been led by the contesting parties on the question in issue, abstract considerations of onus are out of place; truth or otherwise of the case must always be adjudged on the evidence led by the parties.”

This decision is referred to in:

Mohd. Abdullah Azam Khan v. Nawab Kazim Ali Khan, 2022-20 SCC 233
Vinod Kumar Dhall v. Dharampal Dhall, 2018-16 SCC 645
Bibi Sidique Fatima v. Saiyed Mohammad Mahmood Hasan, AIR 1978 SC 1362; 1978-3 SCC 299
Union of India v. Moksh Builders and Financiers Ltd. (1977) 1 SCR 967

Burden of proof remains only academic

In Raghunathi v. Raju Ramappa Shetty, AIR 1991 SC 1040, it is observed that it is a settled law that once the parties have been permitted to produce evidence in support of their respective cases and it is not their grievance that any evidence was shut out the question of burden of proof loses significance and remains only academic.

It is held by the Supreme Court in Thiruvengada Pillai v. Navaneethammal, AIR 2008 SC 1541, that when the execution of an unregistered document put forth by the plaintiff was denied by the defendants, it was for the plaintiffs to establish that the document was forged or concocted. It is observed that the party who asserts something has to prove that thing. It is pointed out that when the plaintiff had come to Court alleging that the first defendant had executed an agreement of sale in his favour and when the defendant denied it, the burden was on the plaintiff to prove that the defendant had executed the agreement, and not on the defendant to prove the negative.

Court Can Draw Adverse Inference If Important Documents are Withheld

In the important decision, Gopal Krishnaji Ketkar v. Mahomed Haji Latif, AIR 1968 SC 1413, it is held as under:

“Even if a party to the suit has no burden, the Court can draw an adverse inference if he withholds important documents in his possession.”

In National Insurance Co. Ltd., New Delhi Vs. Jugal Kishore, 1988-1 SCC 626, Our Apex Court stated the law as under:

“This Court has consistently emphasized that it is the duty of the party which is in possession of a document which would be helpful in doing justice in the cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof.” (Quoted in: Sushil Kumar v. Rakesh Kumar, (2003) 8 SCC 673)

Proof of Title – Preponderance of Probability Sufficient

In Kshetrimayum Ibohal Singh v. Ibemhal Devi, 2012-112 AIC 769; 2011-3 GauLD 803; 2011-6 GauLJ 629; 2012-6 GauLR 680; 2011 5 GauLT 680; 2012-4 NEJ 387, it is held as under: 525;

“In a civil suit, the plaintiff cannot be expected to prove his title beyond any reasonable doubt; a high degree of probability lending assurance of the availability of title with him would be enough to shift the onus on the defendant and if the defendant does not succeed in shifting back the onus, the plaintiff’s burden of proof can safely be deemed to have been discharged.” (relied on: R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami, AIR 2003 SC 4548: (2003) 8 SCC 752.)

In Kshetrimayum Ibohal Singh, the Gauhati High Court relied on J. Yashoda v. K. Shobha Rani: (2007) 6 SCC 730, which held that the rule which is most universal, namely, that best evidence the nature of the case will admit shall be produced only means that, so long as the higher or superior evidence is within the possession of a person or may be reached by a person, that person shall give no inferior proof in relation toil.

Part IV

IF RIVAL CLAIMS, EACH PARTY TO SUCCEED ON STRENGTH OF ITS OWN TITLE

Now, in Bhag Singh v. Basant Kaur, 2026 INSC 983 ; 2026 KHC(Online) 6699 ; 2026 KLT(Online) 4549 (Prashant Kumar Mishra, Shree Chandrashekhar, JJ), the supreme court has made a conspicuous shift in in law on burden of proof in the matter of a title suit. It is held as under:

“It is a settled principle that where rival claims of ownership are asserted, each party must succeed on the strength of its own title and not on the weakness of the opponent’s case.[See: Ramchandra Sakharam Mahajan vs. Damodar Trimbak Tanksale (Dead) and Others, (2007) 6 SCC 737 at Para 13.]

‘Plaintiff to Win on his Evidence’ Vs. ‘EACH PARTY to Succeed on its own Title’

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