Smt. Sunita Yadav vs Kamaldas Bairagi

Heard on the question of admission.

The present second appeal has been filed against the judgment and decree dated 21.6.14 passed by the First Additional District Judge Ashoknagar in Civil Appeal No. 3A/13 whereby the judgment and decree dated 2.1.13 passed by the Second Civil Judge Class-II Ashoknagar in Civil Suit no. 65A/2011 has been confirmed.

It is alleged that the plaintiff/appellant has filed a suit for declaration and permanent injunction before the learned trial court on the ground that survey no. 639 min Rakba 0.300 hectare in which 0.009 hectare i.e. 40ftx25ft plot situated at Kolua road Ashoknagar was purchased by the plaintiff. It is submitted that after payment of the consideration amount to the respondent/defendant the papers were submitted before the Registrar for registration of the sale deed but due to negligence on part of the stamp vendor before the Registrar it cannot be registered and the papers were lost. It is submitted that after purchase of the aforesaid property in question she has constructed a house over the property and is residing in the aforesaid house. It is submitted that due to interference of the defendant the occasion arose to file a civil suit for declaration and injunction with respect to the property in question against the defendant. A written statement was filed by the defendant admitting all the pleas raised by the plaintiff and in the written statement he has further submitted that the decree be passed in favour of the plaintiff and he is having no objection to the same. State of M.P. is a formal party to the civil suit as no relief was claimed against the State of Madhya Pradesh. It is argued that the learned trial Court has dismissed the civil suit without even considering the written statement filed by the defendant in the matter. The learned trial Court has failed to consider the aspect that in the written statement submitted by the defendant he has admitted the fact that he is having no objection in petitioner raising the construction over the disputed property. It is further admitted in para 5 of the written statement that there is no dispute between the plaintiff and the defendant and as far as the prayer in the written statement was made it was categorically mentioned that his name from the array of defendant be deleted as he is having no objection in the relief which has been claimed by the plaintiff. It is argued that the learned trial Court has not considered the aforesaid aspect of the case. It is further argued that several documents are also being filed before the learned trial Court i.e. the receipt of the Electricity Board, photographs of the construction which have been raised by the plaintiff, the receipt of the amount which has been paid for purchase of stamps and the Electricity bills showing the name of the plaintiff. He has also filed the copy of the agreement from the previous owner Balveer. The aforesaid documents were not considered by the learned trial Court and only on the ground that the plaintiff cannot prove his case beyond any reasonable doubt and no documents to demonstrate his ownership were filed by the plaintiff the civil suit was dismissed. The appellate court has affirmed the judgment and decree passed by the trial Court. It is argued that by virtue of pleadings in the written statement virtually the averments made in the plaint are admitted by the defendant and it is a settled position of law that the admitted facts need not to be proved, therefore there was no option to the learned trial Court to reject the contentions raised by the plaintiff. He has relied upon the judgment passed by the Hon'ble Supreme Court in the case of Nagindas Ramdas Vs. Dalpatram Iccharam alias Brijram and others, reported in AIR 1974 SC 471 and has argued that under the provisions of Section 58 of the Evidence Act as the admitted facts are not required to be proved therefore all the arguments which have been advanced by the counsel for the petitioner which finds place in the memo of plaint should have been considered and the civil suit should have been allowed. He has relied upon para 26 of the judgment which reads as under:- 26.From a conspectus of the cases cited at the bar the principle that emerges is that if at the time of the passing of the decree, there was some material before the Court, on the basis of which the Court could be prima facie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction apparently passed on the basis of a compromise, would be valid. Such material may take the shape either of evidence recorded or produced in the case or, it may partly or wholly be in the shape of an express or implied admission made in the compromise agreement itself. Admissions it true and clear are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on the higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand evidentiary admissions which are receivable at the trial as evidence are by themselves not conclusive. They can be shown to be wrong.?

It is submitted that there is every likelihood of the appeal being allowed, therefore, the same should be admitted.

Heard the learned counsel for the appellant and perused the record.

From the perusal of the record it is seen that the civil suit is being filed for declaration and injunction with respect to the property as mentioned in the plaint. The learned trial Court has considered the aspect that it was the duty of the plaintiff to demonstrate his title and the source of title of the property in question. Merely on the basis of Ikrarnama i.e. Ex-P/16 the plaintiff has shown that he is in possession of the property. No title deed was filed by the plaintiff in the matter. In absence of any valid title deed filed by the plaintiff in the entire case and without there being any pleadings with respect to the title of the plaintiff, no relief could have been granted to the plaintiff. Even otherwise the story which has been formulated by the plaintiff that the stamp vendor has lost the stamps therefore the registry could not be executed does not appear to be a reasonable ground owing to the fact that the plaintiff has not even examined the stamp vendor in support of his case. In such circumstances the learned trial Court as well as the learned appellate court has not committed any error in arriving at a conclusion that there are no documents filed by the plaintiff to demonstrate his title over the property in question. It is a settled position of law that the plaintiff is required to prove his own case and details pertaining to the property and its source of title should be specifically pleaded in the plaint.

The  Hon'ble  Supreme  Court  in  the  case  of  Punjab Urban Planning & Development Authority v. M/s. Shiv Saraswati Iron & Steel re-rolling Mills, reported in 1998 (II) MPWN 187 has held that plaintiff has to prove his own case and cannot take advantage of weakness of the case of the defendant.

In the present second appeal also the plaintiff could not demonstrate the source of title of the property nor any documents in support of this contention are being filed by the plaintiff to show that they are title holder of the property in question. There being concurrent findings of both the courts below wherein the learned trial Court as well as the appellate court have categorically held that there is no title of the plaintiff over the property in question therefore the judgment and decree passed by both the courts below appears to be correct. No substantial question of law is involved in the present second appeal. Accordingly, the second appeal sans merits and is hereby dismissed.