Madhya Pradesh High Court
Haribabu Agrawal vs Chief Municipal Officer on 28 January, 2025
NEUTRAL CITATION NO. 2025:MPHC-GWL:1758
1 SA-1710-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE BINOD KUMAR DWIVEDI
ON THE 28th OF JANUARY, 2025
SECOND APPEAL No. 1710 of 2024
HARIBABU AGRAWAL AND OTHERS
Versus
CHIEF MUNICIPAL OFFICER
Appearance:
Shri Siddharth Sharma - Advocate for the appellants.
ORDER
Heard on admission.
2. The appellants / plaintiffs are aggrieved by judgment and decree
dated 02/05/2024 passed in Regular Civil Appeal No.52/2023 by Principal
District Judge, Vidisha (M.P.), whereby upholding the judgment and decree
dated 29/04/2023 passed by the I Civil Judge, Senior Division, Vidisha
(M.P.) in Civil Suit No.158-A/2019 dismissed the appeal.
3. The appellants / plaintiffs before the learned trial Court filed civil
suit for the relief of possession and mesne profits over the land situated Ward
no. 22, Hakikat Rai Marg, Vidisha, Village Sherpur, Patwari Halka No. 61
area 6774 square feet, which was allotted transgressed by the respondent /
defendant for constructing a road for public use.
4. Learned counsel for the appellants inviting attention of this Court
towards para 20 at page 23 of the impugned judgment dated 02/05/2024
passed by learned First Appellate Court submits that appeal has been
dismissed on the ground that no application under Order XXVI Rule 9 was
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moved by the appellants for demarcating the land. Learned counsel for the
appellants has vehemently emphasized the point that no evidence in rebuttal
was tendered by the respondent / defendant, whereas the appellants have
proved its case by tendering documentary and oral evidence. As per counsel
for the appellant, there is no dispute about the title of the land over which the
road has been constructed that is admittedly with the appellant.
5. To bolster his submissions, learned counsel has placed reliance on
the judgment by the co-ordinate Bench of this Court in the case of Jaswant
S/o Kashi Ram Yadav Vs. Deen Dayal reported in (2011) 2 MPLJ 576 .
Learned counsel has further placed reliance upon the judgment by the Apex
Court in the case of Shrreepat Vs. Rajendra Prasad and Ors . reported in
(2000) 6 Supreme 389 ; Haryana Wakf Board Vs. Shanti Sharup and Ors.
reported in (2008) 8 SCC 671 ; and also on the judgment by this Court in the
case of Durga Prasad Vs. Praveen Foujdar and Ors. reported in 1975 MPL
801 . On these contentions, learned counsel prays for admitting this appeal on
the proposed substantial questions of law.
6. Heard learned counsel for the appellant and perused the record.
7. From perusal of the appellant Court's judgment dated 02/05/2024
and also the judgment passed by the trial Court, it is apparent that evidence as
adduced by the appellants / plaintiffs has been dealt with extensively.
Learned Appellate Court referring Section 101, 102 and 103 of Evidence Act
rightly held that it is the duty of the parties, who alleges existence of a
particular fact, has to prove that.
8. To support his findings, learned appellate Court has also relied upon
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the judgment in the case of Jagdish Prasad Patel (Decd.) through Legal
Representatives and Others Vs. Shivnath and Others reported in (2019) 6
SCC 82 submitting that plaintiffs have to prove their own case and they
cannot be given benefit of weakness of the defendant.
9. In view of the mandate provision under Section 101, 102 and 103 of
the Evidence Act, it cannot be complained that learned trial Court and First
Appellate Court failed to appoint Commissioner for demarcating the land on
their own.
10. Both the Courts below have recorded concurrent finding of facts.
Findings are not show to perverse or contrary to the record. This Court is not
obliged to re-appreciate or re-weigh the evidence in Second Appeal.
11. No substantial question of law is found involved. There is no
justification in disturbing the concurrent findings of fact recorded by both
the Courts below. Hence, the appeal fails and is hereby dismissed.
Certified copy as per rules.
(BINOD KUMAR DWIVEDI)
JUDGE
Van
