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2002 DIGILAW 243 (HP)

KISHORI LAL v. KAMAL SINGH

2002-08-29

M.R.VERMA

body2002
JUDGMENT M.R. Verma, J.—This second appeal has been preferred by the appellant/defendant (hereafter referred to as the defendant) against the judgment and decree dated April 4, 1998 passed by the learned District Judge, Solan thereby affirming the judgment and decree passed by the learned Sub-Judge, First Class, Solan in Civil Suit No. 42/1 of 1995/88 on July 31, 1997. 2. Briefly stated, the facts leading to the preferring of the present appeal are that the respondents/plaintiffs (hereafter referred to as the plaintiffs) instituted a suit against the defendant for possession of one room of Grewal Estate, situate in Khasra No. 78/2, Mauza Lower Bazar, Solan and for perpetual injunction restraining the defendant from interfering in the other land and houses existing in Khasra Nos. 76, 77, 80/6, 78/2, 70/3 and 75/3, measuring 514 square meters, situate in Mauza Lower Bazar, Solan. After the institution of the suit, the defendant is alleged to have wrongly and illegally occupied a portion of annexe of two room set in Khasra Nos. 78/2 and 77 in the absence of the plaintiffs, therefore, they applied for amendment of the plaint to include a prayer for possession of the said Annexe which was allowed. 3. The case of the plaintiffs as made out in the plaint is that by virtue of purchase of the suit property vide sale deed No. 758 dated 12.11.1987, they became owners of the suit property. The possession of the suit property, except one room which was in illegal possession of the defendant, was handed over by the seller to the plaintiffs. The defendant had no right, title or interest to remain in possession of the said room being a trespasser and is required to be evicted and the plaintiffs are entitled to the possession thereof. During the pendency of the suit and in the absence of the plaintiffs, the defendant illegally occupied an Annexe consisting of two rooms without the consent of the plaintiffs and has no right to remain in possession thereof. The plaintiffs also claim compensation by way of damages at the rate of Rs. 50 per day for illegal use and occupation of the premises in suit by the defendant. It is also averred that the defendant had threatened to illegally occupy the other portion of the estate owned by the plaintiffs. Hence the suit. 4. The plaintiffs also claim compensation by way of damages at the rate of Rs. 50 per day for illegal use and occupation of the premises in suit by the defendant. It is also averred that the defendant had threatened to illegally occupy the other portion of the estate owned by the plaintiffs. Hence the suit. 4. The defendant contested the claim of the plaintiff and filed written statement averring therein that the sale deed set up by the plaintiffs is not binding on the defendant because the previous owners had already sold Khasra Nos. 78/2 and 77 to him through Dalip Singh, their power of attorney, vide agreement dated 31.7.1987 and, thus, the previous owners could not sell these two Khasra numbers to the plaintiffs. It is further claimed that after execution of the said agreement, the defendant had incurred expenses in the sum of Rs. 3,500 on improvements of the property agreed to be sold to him and which is in his possession by virtue of the said agreement. Therefore, the sale of the suit land in favour of the plaintiffs is alleged to be a result of fraud and misrepresentation of facts. It has further been claimed that the entire suit property is already in possession of the defendant as per the said agreement. Thus the defendant has denied the claim of the plaintiffs. 5. The plaintiffs filed replication and denied the grounds of defence as taken in the written statement and re-affirmed the claim as made out in the plaint. 6. On the pleadings of the parties, the learned trial Judge framed the following issues:— 1. Whether the plaintiff is entitled for possession of the demised premises as alleged? OPR 2. Whether the plaintiff is entitled for the relief of injunction as prayed? OPR 3. Whether the sale deed No. 758 is not binding on the defendant, as alleged? OPD. 4-A. Whether the defendant has wrongly and illegally occupied a portion of annexe of two rooms set during the pendency of this suit? OPR 5. Relief. 7. After considering the evidence on record, the learned trial Judge vide his judgment dated 31.7.1997 decided Issues No. 1, 2 and 4-A in favour of the plaintiffs and Issue No. 3 against the defendant and as a consequence, decreed the suit. 8. OPR 5. Relief. 7. After considering the evidence on record, the learned trial Judge vide his judgment dated 31.7.1997 decided Issues No. 1, 2 and 4-A in favour of the plaintiffs and Issue No. 3 against the defendant and as a consequence, decreed the suit. 8. Being aggrieved, the defendant preferred an appeal in the Court of the learned District Judge, Solan who by the impugned judgment and decree dismissed the appeal and affirmed the judgment and decree as passed by the trial Court. Hence this appeal. 9. I have heard the learned Counsel for the parties and have also gone through the records. 10. It may be pointed out at the very outset that this appeal was initially admitted vide order dated 16.3.2000 but without formulating any substantial question of law. This lapse was noticed on 26.7.2002 and was rectified vide order dated 19.8.2002 when, after hearing the parties, the following substantial question of law was formulated:— "Whether the judgment and decree passed by both the learned Courts below are vitiated on account of serious procedural illegalities committed by the courts below, firstly in permitting the plaintiff/ respondent to lead such evidence which was not permissible and also relying upon the inadmissible evidence." 11. It was contended by the learned Counsel for the defendant that since the burden of proving some issues in the suit was on the plaintiffs and in fact they led evidence to prove such issues, however, Dalip Singh (RPW-2) was examined by the plaintiffs in rebuttal whereas he ought to have been examined bythe plaintiffs while leading evidence in the affirmative. Therefore, permitting recording of the statement of Dalip Singh (RPW-2) in rebuttal was impermissible and contrary to law and as such his statement could not have been read in evidence. It was further contended that it was mainly because of the statement of RPW-2 that the version of the defendant regarding execution of the agreement to sell the suit property in his favour by the general power of attorney of the previous owners was not believed and thus it is a case of illegal recording and reading of the statement of RPW-2 in evidence which has prejudiced the defence of the defendant who had no opportunity to rebut the statement of the witness who has been examined in rebuttal. 12. 12. Rule 3 of Order 18 of the Code of Civil Procedure which provides the manner of recording evidence in a case where there are several issues and burden of proving some of which lies on one party and burden of proving the others on the other party, reads as follows:— "3. Evidence where several issues.—Where there are several issues, the burden of proving some of which lies on the other party, the party beginning may, at his option, either produce his evidence on those issues or reserve it by way of answer to the evidence produced by the other party; and, in the latter case, the party beginning may produce evidence on those issues after the other party has produced all his evidence, and the other party may then reply specially on the evidence so produced by the party beginning; but the party beginning will then be entitled to reply generally on the whole case.” 13. It is evident on a bare reading of Rule 3 supra that where there are several issues and the burden of proving some of such issues lies on one party and the burden of proving the others lies on the other party, it is optional for the plaintiff to lead evidence on the entire case embracing all the issues or to adduce evidence only on those issues the burden of proving which lies upon him reserving his right to lead rebuttal evidence after leading of the evidence by the defendant. In case the plaintiff chooses to give evidence on all the issues to repel the case of the defendant, he will cease to have a right to lead rebuttal. However, if he opts to lead evidence only in proof of such issues the burden of proving which lies on him and reserves the right to lead rebuttal of the evidence of the defendant, the plaintiff will be entitled to lead rebuttal. Evidently, there cannot be any dispute about the right of the plaintiff, if he so desires, to reserve his right to lead rebuttal evidence when the onus of proving some of the issues is on the defendant. 14. In the case in hand, there are only four issues and the onus of proving Issues No. 1, 2 and 4-A was on the plaintiffs and that of Issues No. 3 was on the defendant. 14. In the case in hand, there are only four issues and the onus of proving Issues No. 1, 2 and 4-A was on the plaintiffs and that of Issues No. 3 was on the defendant. The controversy as to whether any lawful agreement to sell a part of the suit property, as alleged by the defendant, was executed or not, is the subject matter of issue No. 3 the onus of proving of which lay on the defendant. It was only after the defendant had led some evidence in support of his claim that an agreement to sell a part of the suit property has been executed in his favour, that the plaintiffs could lead rebuttal of that evidence. 15. The evidence of the plaintiffs in the affirmative was closed vide statement dated 15.5.1990 of the counsel representing them. It is evident from this statement that the plaintiffs at the first instance led the evidence in the affirmative, i.e. on the issues the onus of proving, which was on them, and closed such evidence on 15.5.1990 leaving it open to lead rebuttal. The defendant closed his evidence on 13.5.1993 and the case was thereafter listed for rebuttal evidence of the plaintiffs. 16. In view of the above discussion, it is evident that the trial Court had not committed any illegality by recording the statement of RPW-2 whose statement in fact is evidence in rebuttal of the evidence of the defendant led by him to prove issue No. 3 the onus of proof whereof lay on him. Thus, no illegality has been committed in the order of recording the evidence, therefore, it cannot be said that the statement of RPW-2 could not have been read in evidence. 17. No other procedural illegality in the trial of the suit has been pointed out nor it is shown that the Courts below, while recording their concurrent findings of facts, have relied on any inadmissible evidence whatsoever. 18. In view of the above discussion, there is no merit and substance in this appeal. 19. As a result, this appeal is dismissed. The parties, however, are left to bear their own costs. Appeal dismissed.