Barjor Singh vs Bajrang Singh
2022 Latest Caselaw 1153 MP

HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR SA-767-2020 (Barjor Singh Vs. Bajrang Singh & Ors.)

Gwalior, Dated : 25/01/2022

Shri Vijay Singh Chauhan, learned counsel for the appellant.

This second appeal under Section 100 of the Code of Civil

Procedure has been preferred by the appellant (plaintiff) against the

judgment and decree dated 31/01/2020 passed by the Additional

District Judge, Mehgaon, District-Bhind (M.P.) in regular Civil Appeal

No.02/2020, whereby his first appeal has been dismissed and the

judgment and decree dated 06/12/2018 of trial Court dismissing his

suit has been affirmed.

The brief facts are that the appellant/plaintiff filed a civil suit

seeking declaration of title over the disputed open land adjacent to his

house and permanent injunction claiming title and possession over it.

The defendants denied the averments of the plaint. Learned trial Court

dismissed the suit vide judgment and decree dated 06/12/2018. The

appellant/plaintiff challenged the same by filing first appeal which

also came to be dismissed by the above mentioned judgment and

decree dated 31/01/2020. Being aggrieved of the same, this second

appeal has been filed.

Heard learned counsel for the appellant and perused the material

made available on record.

Learned counsel for the appellant submits that ownership and

possession of the plaintiff over the disputed open land is well proved

by the oral as well as documentary evidence adduced by the plaintiff

HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR SA-767-2020 (Barjor Singh Vs. Bajrang Singh & Ors.)

but learned trial Court as well as Appellate Court have not considered

the evidence of the plaintiff in proper perspective. The suit of the

plaintiff has been dismissed only due to lack of documentary evidence

with regard to title over the suit property but learned Courts below did

not consider the fact that disputed open land is in front of the house of

the plaintiff wherein Gobar Gas Plant was established with the

Government Aid fifteen years prior to filing of the present suit. The

defendants have also not produced any documentary evidence to prove

their title over the disputed land. The findings of the Courts below are

perverse, therefore, this appeal deserves to be admitted and allowed.

Heard. Considered.

Having heard learned counsel for the appellant and on perusal

of the record, it is found that this is a case of concurrent findings of

the Courts below. Learned trial Court has appreciated and analyzed

the evidence of both the sides and came to the conclusion that title and

possession of the appellant/plaintiff over the disputed open land is not

proved. The First Appellate Court has also not found any infirmity in

the judgment of the trial Court.

Though re-appreciation of the evidence after concurrent

findings of facts by both the Courts below is not required in the

second appeal, however, in order to adjudge the alleged perversity in

the impugned orders, suffice it to say that in this case burden lies on

the plaintiff to prove his case and he cannot take advantage of

HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR SA-767-2020 (Barjor Singh Vs. Bajrang Singh & Ors.)

weakness of the defendants. The plaintiff has categorically pleaded

that he got established Gobar Gas Plant over the disputed land with

the Government Aid. Had it been so, he could have very well procure

documentary proof from the concerned Government department and

place the same on record to establish his claim but he failed to do so.

The disputed land is in the shape of open land which is adjacent

to houses of both the parties. Learned trial Court after evaluating the

evidence of both the sides has come to the conclusion that doors of

houses of both the parties open in the disputed land. Thus, finding of

fact based on due appreciation of evidence cannot be said to be

perverse in any manner. Accordingly, this Court does not find any

substantial question of law involved in the matter. Consequently, the

instant second appeal fails and is hereby dismissed.

(SATISH KUMAR SHARMA) JUDGE

rahul Digitally signed by RAHUL SINGH PARIHAR DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, postalCode=474001, st=Madhya Pradesh, 2.5.4.20=eac942476567cd1b39b3da46068403462fdf82ab676d0cde4dee4 73fe77953f5, pseudonym=68E0B84BAE73376CD071289B3D9FE728CE00D487, serialNumber=0275C4F803F94C47998BE5C534E21BDED910FD4AB9D159 B55575E814D05B2EED, cn=RAHUL SINGH PARIHAR Date: 2022.01.27 14:59:42 +05'30'