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Madhya Pradesh High Court · body

2005 DIGILAW 1247 (MP)

Moolchand v. Radha Sharan

2005-12-06

U.C.MAHESHWARI

body2005
JUDGMENT 1. The appellant-defendant has called in question the judgment and decree dated 28.1.1991 passed by the Second Additional District Judge, Raisen in Civil Regular Appeal No. 3-A/89 reversing the judgment and decree dated 4.2.1989 regarding dismissal of the suit passed by the Civil Judge Class-I Bareli in Civil Original Suit No. 3-A/84. 2. A suit for perpetual and mandatory injunction was filed by respondents with pleadings that one Amrit Lal Dubey was the owner of a dilapidated house situated at Bareli Bazar. This house also had a small passage, so called 'Gali'. One portion of this house adjoining to this 'Gali' was purchased by the appellant vide sale deed dated 18.4.1962 from said Amrit Lal Dubey which is described with the red colour in the map annexed with the sale deed. Subsequent to this transaction the remaining part of this house was purchased by the respondent vide 'sale deed dated 16.7.1972. According to it remaining part of the said house after selling to the appellant was transferred to the respondent. The said 'Gali', subject matter of this suit had remained towards eastern side of the house of respondents and just behind the house of the appellant. The house of Rishiraj and Brij Mohan Chandak is also situated towards the western side of this 'Gali'. As per sale deed of the respondents said 'Gali' is a part of his property on which appellant has made some construction of septic tank by encroaching it. In such circumstances the suit was filed for perpetual injunction to restrain him from further construction and also for mandatory injunction for demolition of construction which had been made by him. 3. In the written statement of the appellant it is contended that the house purchased by him from Amrit Lal Dubey was a separate one and it was not the part of the house as alleged by the respondents. The place of the septic tank is a part of his property on which earlier a latrine was in existence. The aforesaid construction was not objected by father of the respondents in presence of Nazul Inspector and prayed for dismissal of the suit. 4. In view of the aforesaid pleadings issues were framed by the trial Court. The place of the septic tank is a part of his property on which earlier a latrine was in existence. The aforesaid construction was not objected by father of the respondents in presence of Nazul Inspector and prayed for dismissal of the suit. 4. In view of the aforesaid pleadings issues were framed by the trial Court. On giving the opportunity to lay the evidence neither of the parties have led the evidence, as such no witnesses have been examined to prove the facts as pleaded by them. 5. According to the judgment of the trial Court the parties prayed to decide the matter on their pleadings and the documents placed on the record. Considering the submissions, on appreciation of the pleadings only the suit was dismissed by the trial Court. In appeal the same has been set aside by decreeing the suit for both the reliefs, the perpetual injunction and the mandatory injunction as prayed by the respondent. The appeal was also allowed only on re-appreciation of the pleadings and documents, hence this appeal was preferred and the same was admitted on 13.3.1991 on following substantial question of law : "Whether the lower appellate Court was justified in law in reversing the judgment and decree passed by the trial Court." 6. Learned counsel for the appellant has submitted that mere on the basis of the pleadings or the documents placed on record, no decree could have been passed unless such documents and the pleadings are proved by examining the relevant witnesses. As per procedure the pleadings are only the intimation to Court and other side regarding their dispute but it has no sanctity of the admissible proof without ocular or oral evidence and the documents and other papers are not admissible unless the same are proved by concerning witnesses as per provision of the Evidence Act. He fairly conceded that the trial Court has also committed a gross error in arriving to the conclusion for dismissal of the suit without any evidence only on appreciation of the pleadings and the aforesaid documents and the same error was committed by the appellate Court in reversing the decree of the trial Court by allowing the appeal of respondents. Arguments on merits of the matter has also been put fourth with a prayer for dismissal of the respondents' suit by setting aside the decree of the appellate Court. 7. Arguments on merits of the matter has also been put fourth with a prayer for dismissal of the respondents' suit by setting aside the decree of the appellate Court. 7. No one has appeared on behalf of the respondents to rout the aforesaid arguments. 8. Having heard, learned counsel for the appellant, I have gone through the records of the Courts below, I have not found any statement of witnesses of either of the parties in support of pleadings. This fact has been mentioned by both Courts below in their judgments also. 9. It is settled position of law that in the absence of the pleadings, no evidence can be looked into and also vice versa in the absence of any proof or evidence on record mere on the basis of the pleadings and documents of the parties as placed on record, no inference can be drawn to adjudicate the matter. The provision of Order 6 Rule 2 of the Code of Civil Procedure is very specific on this point that evidence cannot be looked into beyond the pleadings as per various interpretations of the different Courts. It shows that pleadings cannot take the place of proof until it is not proved by reliable evidence by examining the witnesses. 10. The documents produced by the parties as sale deed, some notices of the municipalities and other papers are not the public documents. So without proper proof on record, they could not have been relied upon by the Courts below. 11. Beside this the parties are also bound to prove those facts which they know. According to the pleadings of the plaint, the respondents had knowledge about the dispute as pleaded by them and they themselves have not entered in witness box to prove such facts in support of their pleadings as such they have not discharged their burden to prove their case as per provision of sections 101 and 102 of the Evidence Act. In absence of that there are sufficient circumstances to draw an adverse inference against the respondents. In absence of that there are sufficient circumstances to draw an adverse inference against the respondents. My aforesaid view is fully fortified on a decided case in the matter of Martand Pundharinath Chandhari v. Budhabai Krishnarao Deshmukh reported in AIR 1931, Bombay 97 in which it is held as under: "It is the burden duty of a party personally knowing the facts and circumstances to give evidence, in his own behalf and to submit to cross-examination and his non-appearance as a witness would be the strongest possible circumstances which will go to discredit the truth of his case AIR 1927 PC 230 Rel. on." (Placitinum). 12. The aforesaid question was answered by this Court also in the matter of Gulla Kharagit Carpenter v. Narsingh Nandkishore Rawat reported in AIR 1979 Madhya Pradesh 225 in which it was held as under: "When a material fact is within the knowledge of a party and he doe~ not go into the witness box without any plausible reason, an adverse inference must be drawn against him. A presumption must be draw against a party who having knowledge of the fact in dispute does not go into the witness box, particularly when a prime facie case has been made out against him." 13. In view of the aforesaid principle, on examining the case at hand non-entrance of the respondent-plaintiff in witness box to prove their case as per pleadings are sufficient circumstances to draw an adverse inference against them that they have no case against the appellant but by ignoring this principle the case was considered on merits only on pleadings of parties which is not sustainable under the law as such in the absence of evidence the suit should have been dismissed, 14. Although, no evidence was led by the appellant in support of his pleadings as mentioned in the written statements but the weakness of the appellant-defendants cannot be ground to decree the suit in favour of the respondent-plaintiff. Thus, appellant should not have been benefitted of this count also. In view of settled principle of law that plaintiff has t build up his own case he cannot get success on the weakness of the defendant. Thus, the suit could have been dismissed on this count also. 15. In view of the foregoing discussion, the aforesaid question is answered accordingly against the respondents. 16. In view of settled principle of law that plaintiff has t build up his own case he cannot get success on the weakness of the defendant. Thus, the suit could have been dismissed on this count also. 15. In view of the foregoing discussion, the aforesaid question is answered accordingly against the respondents. 16. Thus, it is held that Courts below have committed error in deciding the case mere on the basis of the pleadings and the documents without any proof or admissible evidence on record. Hence, the judgment and decree of the Courts below are set aside by dismissing the suit of the respondents. The appeal is allowed. There shall be no order as to costs. The decree be drawn up accordingly.