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Madhya Pradesh High Court · body

2010 DIGILAW 264 (MP)

Sadri Prasad v. State of M. P.

2010-03-06

A.K.SHRIVASTAVA

body2010
JUDGMENT 1. Shri Katare is heard on the question of admission. 2. By this second appeal, the plaintiffs are assailing the judgment and decree passed by the learned first appellate Court reversing the decree passed by the trial Court decreeing the suit of the plaintiffs. 3. A suit for declaration of Bhumiswami right and injunction has been filed by the plaintiff on the ground that he is the Bhumiswami of the disputed property which is the subject matter of the suit and because the defendant/State Government and its employees are trying to interfere in the possession of the plaintiff, hence, it be declared that plaintiff are the Bhumiswami and are also in possession of the suit property and further, the defendant be restrained from interfering in their possession. 4. The defendants/State Government did not file any written statement. 5. The plaintiff has filed one document Ex. P/1 alleged to be khasra of Samvats 2037 to 2040 to demonstrate his Bhumiswami right as well as possession. The plaintiff also examined himself, but no evidence was adduced by the defendant. The learned trial Court decreed the suit of the plaintiff, however, in appeal which was filed by the defendant/State Government it has been allowed by the impugned judgment and decree. Hence, this second appeal has been filed. 6. The contention of learned counsel for the appellants is that the suit was filed on 15.12.1983 and the corresponding Samvat was 2040. There is specific pleading of the plaintiff that he is the Bhumiswami having possession of the suit property for last 35-40 years. However, no written statement has been filed by the defendant, therefore, the averments made in the plaint shall be deemed to be admitted under Order VIII Rule 3 and 4 of CPC and hence, the learned first appellate Court erred in substantial question of law in dismissing the suit of the plaintiff. In support of his contention learned counsel placed reliance in the case of Mohd. Syed and another v. M/s. Hindustan Petroleum and others reported as 2004 (1) JLJ 199 . 7. The second contention of learned counsel for the appellants is that despite the plaintiff proved his possession on the suit property and also proved his status as Bhumiswami by filing Khasra Ex. Syed and another v. M/s. Hindustan Petroleum and others reported as 2004 (1) JLJ 199 . 7. The second contention of learned counsel for the appellants is that despite the plaintiff proved his possession on the suit property and also proved his status as Bhumiswami by filing Khasra Ex. P/1 which is of Samvats 2037 to 2040, the learned first appellate Court by discarding the documentary and oral evidence erred in law in dismissing the suit of the plaintiff. It has been put forth by him that since there is no cross-examination on the testimony of the plaintiff, therefore, the statement given by him since it remained unchallenged, is binding on the defendant. In support of his contention, learned counsel for the appellants has placed heavy reliance on the two Division Bench decisions of this Court in the cases of Kasturchand v. Kapurchand reported as 1975 JLJ 333 and Mohd. Syed (supra). It has also been put forth by learned counsel for the appellants that at the time of abolition of Zamindari system, since the plaintiffs' predecessors were in possession of the suit property which was in their self cultivation, therefore, it never vested in the State Government. After the death of plaintiffs' predecessors, thereafter his father Jiwan Lal and after the death of their father ultimately they became the Bhumiswami of the suit property and are also possessing the same. An application under Order41 Rule 47 of CPC (I.A. No. 10912/2005) in that regard has been filed alongwith photocopy of the khasra of Samvat 2007. 8. Considered the arguments. 9. So far as the first contention of learned counsel for the appellants that since no written statement has been filed by the defendant and therefore, the averments made in the plaint shall be deemed to be admitted is concerned, suffice it to say, that the option was left for learned trial Court either to decree the suit on account of non-filing of the written statement but if that option was not opted by learned trial Court and directed the plaintiffs to lead evidence in order to determine their right, according to me no illegality has been committed by learned trial Court. On going through Order 8 Rule 10 CPC, this Court finds that the option is left to the Court either to pronounce the judgment on account of non-filing of the written statement by the defendants or it may make such order in relation to the suit as it think fit. In the present case, the learned trial Court opted that latter option and directed the plaintiffs to lead evidence. According to me, the discretion is vested with the trial Court and once the said direction has been exercised by it by directing the plaintiffs to lead evidence, the learned trial Court has acted within the purview of the Order 8 Rule 10 CPC. The Supreme Court in the case of Modula India v. Kamakshya Singh Deo reported as AIR 1989 SC 162 has categorically held that the present language of Rule 10 says that the Court "shall" pronounce judgment against the defendant and it is obvious from the language of the rule that there is still an option with the Court either to pronounce judgment on the basis of the plaint against the defendant or to make such other appropriate order as the Court may think fit and therefore, according to me, there is nothing in this provision to pass decree in favour of the plaintiffs straightway because written statement has not been filed. The Division Bench of this Court in the case of Mathew Elenjical and another v. Nagpur Roman Catholic Diocesan Corporation (P) Ltd. reported as 1977 (II) MPWN 443 = 1977 MPLJ 811 has reiterated the same principle. The Single Bench of this Court in the case of Bahor Singh v. Devi and others reported as 2000 RN 68 has held down the same proposition. 10. The division Bench decision of this Court in the case of Mohd. Syed (supra) is not applicable in the factual scenario of the present case for the simple reason that in the said case written statement was filed by the defendant but the denial of plaint averments in the written statement was not specific and no knowledge was pleaded in those circumstances, it was held that it amounts to admission as envisaged under Order 8 Rule 3 & 5 of CPC. 11. So far as the second contention of learned counsel for the appellants is concerned, suffice is to say that the document Ex. 11. So far as the second contention of learned counsel for the appellants is concerned, suffice is to say that the document Ex. P/1 is not a certified copy of the khasra. Had it been a certified copy of the khasra mere production would have been sufficient for its proof in terms of section 77 of the Indian Evidence Act because khasra (Revenue record) is a public document. Since, Ex. P/1 is a private document and is a certificate given by the Patwari, according to me it is required to be proved by examining the Patwari. Admittedly, the Patwari has not been examined by the plaintiffs. The Supreme Court in the case of Bhinka and others v. Charan Singh reported in AIR 1959 SC 960 has taken into consideration this aspect of the matter and has held that if a copy of the document which is not a certified copy of the public document (revenue record) mere production of it would not be sufficient and it is required to be proved like other document. Hence, the plaintiff would not be benefited in any manner by mere production of the certificate of Patwari (Ex. P/1) and his case is not proved by this document and therefore when there is no' document on record in order to demonstrate the Bhumiswami right and possession of the plaintiffs, according to me, the bald and oral statement of the original plaintiff-Murarilal whose L.Rs. are present appellants would not be sufficient, since the plaintiff has not filed the relevant revenue record in order to demonstrate his Bhumiswami right and possession. According to me, learned first appellate Court did not commit any error in holding that neither the original plaintiff-Murarilal has proved his Bhumiswami right on the suit property nor he was in possession of the suit property. The case of the plaintiff is that right from very beginning he is the owner of suit property and earlier his predecessors were owner but no documentary evidence has been filed in order to substantiate and prove his case. 12. The case of the plaintiff is that right from very beginning he is the owner of suit property and earlier his predecessors were owner but no documentary evidence has been filed in order to substantiate and prove his case. 12. So far as the another contention of learned counsel for the appellants that no effective cross-examination has been put forth by the defendant and further that defendant did not adduce any evidence in rebuttal is concerned, suffice it to say that in the absence of any documentary evidence placed on record by the plaintiff to demonstrate his ownership and possession of his predecessor, he cannot take any advantage of any weakness of the defendant. In this view of the matter, the Division Bench decisions of this Court in Kasturchand (supra) and Mohd. Syed (supra) are not applicable in the present case. 13. The last contention of learned counsel for the appellants about his application under Order 41 Rule 47 CPC (I.A.No. 1091212005) is concerned, suffice it to say that the photocopy of the khasra of Samvat 2007 has been filed in which the entry of Banshi, Lal Kishan and Ram Singh has been mentioned, but in the plaint, the names of these persons are not mentioned and therefore, the contention of learned counsel for the appellants that these persons were the predecessor of the original plaintiff-Murarilal, at this second appeal stage cannot be accepted, when there is no pleading in the plaint in that regard. 14. I am also not impressed by the submission of learned counsel for the appellants that in the memorandum of appeal this fact has been mentioned. According to me, the memorandum of appeal cannot be said to be the pleadings as envisaged under Order 6 Rule 1 CPC which pertains to pleading and according to which pleading would mean plaint or written statement. 15. I have also gone through the reasoning of the learned first appellate Court and I am of the view that the learned first appellate Court did not commit any error in dismissing the suit of the plaintiff. No substantial question of law is involved in this appeal the same is hereby dismissed, summarily.