Ram Singh vs Abdul Sattar

Sanjay Misra, J.—Heard Sri Ashok Kumar Tripathi holding brief of Sri A.D. Prabhakar, learned Counsel for the Defendant-Appellant and Sri Suresh Chandra Gupta, learned Counsel appearing on behalf of Plaintiff-Respondent.

This is a second appeal u/s 100 of the CPC against the judgment and decree dated 29.08.1985 passed in Civil Appeal No. 104 of 1985 by the 5th Civil Judge, Meerut, whereby the Plaintiff's suit for injunction has been decreed and the judgment and decree of the Trial Court in Suit No. 14 of 1984 has been set aside.

The substantial question of law framed by learned Counsel that arises for decision in this second appeal is:

Whether the Court below has acted with material and substantial illegality in wrongly placing the burden of proof of the Plaintiffs'' case on the Defendant-Appellants?

Learned Counsel for the Defendant-Appellant has submitted that the Plaintiff has to prove his own case and the First Appellate Court has committed an illegality in shifting the burden of proof on the Defendants and as such the impugned judgment cannot be upheld.

Learned Counsel for the Plaintiff-Respondent has contested the submission and states that the First Appellate Court has held that the Plaintiff has proved his averments and case by adducing documentary and oral evidence whereas the Defendant-Appellant had taken the plea of easementary right over the land mentioned as A, B, C & D. According to him the Defendant-Appellant could not prove his case of easementary rights, whereas the Plaintiff-Respondent had produced the sale deed, panchayat rasheed and 5 witnesses in support of his possession and title.

Having considered the submission of learned Counsel for the parties and perused the record, it is quite clear that insofar as the Defendant's claim was concerned it was based on easementary rights and he did not file any cogent evidence to prove the same and hence it was disbelieved.

Insofar as the Plaintiff's case is concerned the Appellate Court has considered the sale deed, panchayat rasheed and the oral statement made by the Plaintiff's witness, wherein it was found that the Plaintiff was in possession of 8 and 1/2 feet of Rasta and for the purpose of right of way of the Defendant he had left out 3 to 4 feet area of his land for passage of the Defendant. The Plaintiff witness also proved his possession over the land in question and the Court found that the Defendant was unauthorizedly interfering in his possession. Consequently, the injunction has been granted by the First Appellate Court against the Defendant-Appellant.

In view of the aforesaid findings of fact recorded in the First Appellate Court judgment the substantial question of law is answered against the Defendant-Appellant and in favour of the Plaintiff-Respondent inasmuch as the burden of proving the case of the Plaintiff has been fully discharged by him and it has not been shifted on the Defendant-Appellant.

The appeal has no force and it is, accordingly, dismissed.

No order is passed as to costs.