Halka vs Bhamri Bai and Others

M.K. Mudgal, J.

Heard on the question of admission.

The appellant/plaintiff has filed this appeal u/s 100 of the CPC being aggrieved by the judgment and decree dated 5.9.2012 passed by the Court of ADJ, Sironj District Vidisha in Civil Appeal No. 17A of 2012, confirming the judgment and decree dated 7.7.2011 passed by the court of Civil Judge Class I, Sironj in Civil Suit No. 9A of 2011 whereby, the suit filed by the plaintiff for restoration of possession was dismissed. In this appeal, the appellant is referred to as "plaintiff" and the respondents No. 1 to 8 as "defendants". The facts in brief of the plaintiff''s case are that a house is situated in Narkheda Jagir Tehsil Sironj which hereinafter would be referred to as "disputed house". The said house being ancestral one was partitioned between plaintiff, defendants, their brother Prabhulal, Chhoteram and their mother Janki Bai and they are occupying their respective shares. It is further pleaded that when the plaintiff went to Aron for some work, defendants encroached upon the plaintiff''s part of the house before 5 to 6 years, hence, the plaintiff filed a suit against the defendants for the relief stated herein above.

The defendants did not appear in the matter and hence, were proceeded ex parte.

After framing of the three issues, recording evidence of both the parties and having considered the recorded evidence, the learned trial Court dismissed the suit of the plaintiff against the defendants as stated above.

Being aggrieved by the judgment and decree passed by learned trial Court, the plaintiff filed an appeal before the first appellate Court which was also dismissed. Hence, this second appeal has been filed as stated herein above.

Heard learned counsel for the appellant and perused the record.

The learned counsel for the appellant submits that both the learned courts below have not properly considered the evidence produced by the plaintiff, owing to which the judgments passed by them deserve to be set aside.

On perusal of the record and the judgments of both the courts below, it becomes clear that the appellant/plaintiff has claimed his title on the basis of his share in the ancestral property in the disputed house. However, no document in this regard was produced by the appellant. In order to prove his case, the plaintiff has produced only oral evidence which has been disbelieved by both the learned courts below. On perusal of the judgment, it is evident that both the courts below having considered the recorded evidence have rightly discarded the plaintiff''s evidence to prove his case. Though the defendants remained ex parte before the trial court and did not file any written statement opposing the contents of the plaint, yet the suit filed by the plaintiff could not be decreed merely on this ground. On the contrary, even if the case is tried ex parte, the plaintiff has to prove his case by the cogent or reliable evidence. In this case, no reliable evidence has been produced by the appellant/plaintiff. The possession follows title whereas, the plaintiff is not in possession and he resides in another village. Since findings of both the courts are concurrent and no substantial question of law crops up for admission in this appeal, it is concluded that the appeal being meritless deserves to be dismissed.

Thus, the appeal being merit less and devoid of substance, is hereby dismissed. No order as to the costs. Let the decree be drawn up accordingly.