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2010 DIGILAW 692 (MP)

Gajadhar Singh v. Gulab Bai

2010-07-14

S.K.GANGELE, S.S.DWIVEDI

body2010
ORDER 1. Petitioner/ plaintiff has filed his petition under Article 227 of the Constitution of India, aggrieved by the order dated 24.6.2009 passed by Civil Judge Class II, Mungaoli in Civil Suit No. 152-A/2008, whereby the trial Court rejected the prayer of the plaintiff to lead evidence in rebuttal of the evidence adduced by the respondents/defendants. 2. Facts of the case are, the petitioner/plaintiff has filed a suit for declaration and injunction with regard to agricultural land situated at village Deccan, Tehsil Mungaoli, District Ashok Nagar, claiming himself to be possessor of the concerning land since last more than 50 years. In this case, the respondents/defendants have flied reply that they are the real owners of the suit land and plaintiff has dispossessed them on 20.1.1984 and with this reply, they also filed a Counter-claim for possession of the disputed land. In this case, learned trial Court has given near about six opportunities to the petitioner/plaintiff to lead evidence but plaintiff always failed to produce any evidence in support of his claim, therefore, the learned trial Court has closed the plaintiff evidence and thereafter, directed the respondents/defendants to adduce their evidence. When, the plaintiff cross-examined the defendants' evidence, thereafter, he filed an application under Order 18 Rule (3) (A) of CPC for permission to lead evidence in rebuttal of the evidence adduced by the defendants. Learned trial Court by the impugned order rejected the aforesaid prayer. Hence, this petition. 3. After hearing learned counsel for the parties and on perusal of the impugned order and pleading of the parties. it is apparent that trial Court has framed near about 11 issues on the basis of pleadings and issues Nos. 1 and 2 are based on the pleadings of the plaintiff wherein he should have proved that he is in peaceful possession of the disputed land since last more than 50 years. For that rebuttal, defendants came with a case that this land had beep purchased by ancestors of the defendants in a public auction and thereafter they came in the possession of the suit land but subsequently on 20.1.1984 the plaintiff has forcefully dispossessed the defendants. Thus, primary burden to prove the ownership of the land is on the plaintiff and admittedly he has not adduced any evidence. Thus, primary burden to prove the ownership of the land is on the plaintiff and admittedly he has not adduced any evidence. Defendants have set -up a case that they are the real owners of the property concerned and plaintiff himself has dispossessed them from the land concerned and in such circumstances, it cannot be presumed that plaintiff is having any right of rebuttal of the case setup by the defendants whereas defendants have already adduced evidence in rebuttal of the case of plaintiff. Similarly, it is also apparent that plaintiff has not declared that he is reserving his right to adduce evidence on the issues for which the burden is on defendants. Therefore, in such circumstances also, learned trial Court has rightly refused the prayer for adducing any evidence by the plaintiff in rebuttal. 4. Learned counsel for the petitioner/plaintiff placed reliance on a decision of this Court reported in 5aphi Mohammad v. Ram Jiyawan. 2001 (1) MPWN 79 wherein this Court while interpreting the provisions of Order 18 Rule 3 (A) of CPC held that "the petitioner is having a right to adduce evidence in rebuttal." 5. Considering the facts of the present case. it is apparent that it is choice of plaintiff to adduce evidence in support of his pleadings and on issue Nos. 1 and 2. The remaining issues are on the ground of denial of plaintiff's title, therefore, it is the defendants who are having right of rebuttal of the plaintiff case and in such circumstances the aforesaid case law cited by the counsel for the petitioner is not applicable to the facts of the present case. 6. Considering the overall facts of the case, we are of the considered opinion that learned trial Court has not committed any error by rejecting the prayer of the plaintiff for providing an opportunity to adduce evidence in rebuttal of the case of the respondents/defendants. 7. Consequently, petition being devoid of any merit is dismissed. No order as to costs.