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2018 DIGILAW 202 (MP)

Munnibai v. Vijay Singh

2018-02-20

ASHOK KUMAR JOSHI

body2018
ORDER 1. The appellant/original plaintiff has filed this second appeal under section 100 of the Code of Civil Procedure, against the judgment and decree dated 18th July, 2017, passed by Additional District Judge, Vijaypur, District Sheopur in Regular Civil Appeal No. 10/2017, reversing the judgment and decree dated 13th December, 2016 passed by Additional Civil Judge Class-1, Vijaypur, District Sheopur in Civil Suit No. 25A/2016. The trial Court had decreed the plaintiff's suit for recovery of possession of disputed patore and also issued perpetual injunction against the defendants regarding any construction work in disputed lane, whereas the lower appellate Court had dismissed the plaintiff's suit. 2. Plaintiff-Munnibai filed a civil suit before the trial Court on 11th July, 2014 on pleadings that the plaintiff is having a parental residential house in village Raghunathpur, wherein a patore is situated, which is shown by red-coloured lines in the map attached to the plaint and adjacent to disputed patore a disputed lane is situated on eastern side. The disputed patore is of plaintiff's title and ownership and defendants have illegally occupied the disputed patore without any right. On 28th November, 2006 defendant No. 1-Vijay Singh had signed a compromise in presence of witnesses Preetam Singh Jadone and Suresh Singh and agreed that within three months defendant will vacate the patore. The agreement was also signed by the plaintiff's husband Man Singh but the defendants have not vacated the disputed patore till filing of the suit and defendants are trying to close the lane adjacent to the disputed patore and if the lane is closed, then discharge of used water from plaintiff's house would be stopped. The plaintiff is entitled for getting possession of the disputed patore from the defendants, hence decree for getting possession of the disputed patore from the defendants and perpetual injunction against the defendants for not doing any construction work in the disputed lane were sought. 3. The defendants, who are father and son, in their joint written statement pleaded that the disputed patore and lane is actually of ownership of defendants. The plaintiff has not filed any title document and has produced an arbitrary map attached with the plaint. The disputed patore is of parental ownership of defendants and defendants are legally occupying the patore and disputed lane. The plaintiff has prepared a forged document regarding compromise with the help of her interested witnesses. The plaintiff has not filed any title document and has produced an arbitrary map attached with the plaint. The disputed patore is of parental ownership of defendants and defendants are legally occupying the patore and disputed lane. The plaintiff has prepared a forged document regarding compromise with the help of her interested witnesses. The defendants are having no knowledge regarding that document. As the plaintiff is and another having no title and ownership, hence the plaintiff is not entitled for any relief. The plaintiff had previously filed false complaints at Police Station Raghunathpur. The plaintiff is having no cause of action, hence dismissal of the suit was prayed. 4. Trial Court framed issues on the pleadings of the parties and before the trial Court for plaintiff, Munnibai (PW1), her husband Man Singh (PW2) and Preetam Singh (PW3) were examined, whereas defendant No. 1- Vijay Singh Bhadoriya (DW-1) and Ramkrishna (DW-2) were examined for defendants. Defendants' witness Ramkrishna (DW-2) deposed in his cross-examination that the disputed patore was given to defendant No. 1- Vijay Singh for residing by Bhanwar Singh, late father of plaintiff-Munnibai and undisputedly Munnibai is sole heir of her father Bhanwar Singh. The trial Court also believed the evidence of plaintiff's husband Man Singh (PW2) and Preetam Singh (PW3), who were signatories to the written compromise (Ex.P-1). The trial Court recorded its finding that it was proved that the disputed patore and lane shown in the plaint attached map is owned by plaintiff and defendants have illegally possessed the disputed patore and lane; the defendants are illegally stopping exit of the used water from the disputed lane and it was proved that the defendants are desirous for illegal construction and plaintiff is entitled for claimed reliefs, hence the plaintiff's suit was decreed by the trial Court. The defendants filed regular appeal before the District Court. The lower appellate Court allowed the defendants' appeal and dismissed the plaintiff's suit mainly on the grounds that no title document regarding ownership of patore was filed by the plaintiff and alleged compromise was not executed in favour of the plaintiff. Hence, this second appeal. 5. Learned counsel for the appellant/original plaintiff contends that the lower appellate Court erred in reversing well-reasoned judgment and decree passed by the trial Court. Hence, this second appeal. 5. Learned counsel for the appellant/original plaintiff contends that the lower appellate Court erred in reversing well-reasoned judgment and decree passed by the trial Court. As the disputed patore is a part of parental building of plaintiff's late father Bhanwar Singh, wherein the defendants were living with permission of plaintiff's father and defendant No. 1-Vijay Singh is son of real maternal uncle of plaintiff, hence the defendant No. 1 was permitted to reside in the disputed patore, hence it is prayed that appeal be admitted for final hearing after formulating the suggested substantial questions of law proposed in second appeal memo. 6. The law is well settled that evidence beyond the pleading of any party is not considerable in civil suit. The plaintiff has not pleaded in her plaint that the disputed patore was given to defendant No. 1-Vijay Singh for residing by her father Bhanwar Singh in her life time. Plaintgiff-Munnibai has only pleaded in her plaint that the defendants are illegally occupying the disputed patore, but in the plaint there is no any specific pleading regarding starting of possession of defendant No. 1 or nature of the possession of any defendant over disputed patore. It has been observed by a Division Bench of this Court in the case of Sukhram v. Baldeodas Manilal ( AIR 1957 MP 138 ) in para 9 of its judgment as follows:- “(9) …............... It is settled law that decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found by the Court: Messrs. Trojan and Co. v. R.M. N.N. Nagappa Chettiar, [ AIR 1953 SC 235 ].” 7. Similarly it is well settled that the plaintiff has to prove her suit by reliable and legally admissible evidence and plaintiff's suit could not be decreed only on the weakness of the case of defendant. In the light of the cases of T.K. Mohammed Abubucker (Dead) through LRs. v. R.M. N.N. Nagappa Chettiar, [ AIR 1953 SC 235 ].” 7. Similarly it is well settled that the plaintiff has to prove her suit by reliable and legally admissible evidence and plaintiff's suit could not be decreed only on the weakness of the case of defendant. In the light of the cases of T.K. Mohammed Abubucker (Dead) through LRs. and others v. P.S.M. Ahamad Abdul Khader and others [( AIR 2009 SC 2966 )] and Punjab Urban Planning and Development Authority v. M/s Shiv Saraswati Iron and Steel Re-Rolling Mills [ 1996(II) MPWN 187 (SC)], it is clear that the burden of proof regarding title and possession of plaintiff lies on the plaintiff and on this point the plaintiff could not rely on any weakness in the title or possession of the defendants. Even the learned trial Court also observed in para 13 of its judgment that plaintiff-Munnibai had not filed any title document regarding her ownership of disputed patore but on the basis of disputed compromise (Ex.P-1) it inferred that disputed patore is a part of residential house left by late Bhanwar Singh, hence the disputed patore could be understood of ownership of plaintiff-Munnibai. It is clear from the perusal of disputed compromise (Ex.P-1) that there are no averments about plaintiff-Munnibai's or her father's title or ownership over the disputed patore. 8. From perusal of alleged compromise (Ex.P-8) it is clear that it was written between husband of the plaintiff Man Singh (PW2) and defendant No. 1-Vijay Singh because above mentioned Man Singh was constructing the house or shop on road side and according to agreement, Vijay Singh expressed that he is having no objection regarding construction by Man Singh. In next sentence it is mentioned that the part of the disputed patore wherein Vijay Singh is residing if comes in the line of constructed shop then he would be ready to leave that part of patore which comes in the line of the shop. Man Singh (PW2) and Preetam Singh (PW3) though deposed that defendant No. 1-Vijay Singh had signed on Ex.P-1, but defendant No. 1-Vijay Singh (DW-1) clearly deposed that Ex.P-1 is not bearing his signature. It appears that Ex. Man Singh (PW2) and Preetam Singh (PW3) though deposed that defendant No. 1-Vijay Singh had signed on Ex.P-1, but defendant No. 1-Vijay Singh (DW-1) clearly deposed that Ex.P-1 is not bearing his signature. It appears that Ex. P-1 is mainly related to dispute regarding construction of house or shop by Man Singh and there is no explanation that when Patore was not vacated within three months from 28th November, 2006, then why no step was immediately taken by Man Singh or his wife regarding possession of patore. 9. Though Preetam Singh (PW3) has deposed in para 1 of his examination-in-chief that some land was given to Vijay Singh's father Pratap Singh for constructing a house by Bhanwar Singh, but in next breath he deposed that Bhanwar Singh had given a small patore for residing to Pratap Singh (father of Vijay Singh). Preetam Singh also deposed that the plaintiff's husband was serving with him in Education Department and he is a resident of Sabalgarh. In cross-examination, Preetam Singh deposed that there were some disputes or quarrels between Munnibai and Vijay Singh but that dispute or quarrel is not referred in compromise (Ex.P-1). He admitted that in compromise length and width of the patore is not described. 10. It is clear that the length and width of disputed patore is not mentioned even in the plaint or attached map and even the four-boundaries of the disputed patore are not described in the plaint. There is no pleading of the plaintiff-Munnibai regarding nature of starting of possession of Vijay Singh or his father Pratap Singh over disputed patore. Even the starting year of the possession of the defendants or their ancestor is not mentioned. There is no pleading of the plaintiff that disputed patore was given by her father in his life time to defendant No. 1 or his father. Hence, in the light of the above mentioned citations, the relating evidence given by plaintiff's witnesses was beyond the limits of pleadings of the plaintiff. The plaintiff has pleaded only that the defendants are unlawfully occupying the disputed patore, but even the starting date or year of the alleged unlawful possession of the defendants over disputed patore has not been pleaded, which is very material in a suit filed for getting possession of the immoveable property. The plaintiff has pleaded only that the defendants are unlawfully occupying the disputed patore, but even the starting date or year of the alleged unlawful possession of the defendants over disputed patore has not been pleaded, which is very material in a suit filed for getting possession of the immoveable property. It is clear from the evidence of Preetam Singh (PW3) that actually the defendant No. 1-Vijay Singh's father was occupying the disputed patore. The defendant No. 1-Vijay Singh (DW1) has also clearly deposed that prior to him, his father Pratap Singh was residing in the disputed patore and late Bhanwar Singh was husband of his father's real sister. The defendants have relied on a certificate (Ex.D/1) issued by Sarpanch of the Gram Panchayat Raghunathpur District Sheopur to the effect that the land on which the defendant No. 1-Vijay Singh resides is of his own ownership. Though such certificate issued by Sarpanch of Gram Panchayat could not be an evidence of title or ownership, but the plaintiff has not filed any title document. The disputed compromise (Ex.P-1) was not written between plaintiff and defendant No. 1. 11. It is well settled that second appeal could not be admitted only on the ground that the lower appellate Court has reversed the judgment and decree passed by the trial Court. It appears that the lower appellate Court has properly and legally analyzed the pleadings and evidence filed by both the parties before the trial Court and there appears no perversity in any of the findings recorded by the lower appellate Court. 12. The lower appellate Court being final Court of facts has recorded its findings on proper appreciation of evidence in the light of referred citations. This Court is of the considered view that this second appeal does not involve any question of law rather then substantial question of law. 13. Consequently, this second appeal filed by the appellant/original plaintiff is dismissed at motion stage.