Municipal Council, Bhilwara vs Gopilal
2021 Latest Caselaw 622 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Second Appeal No. 240/2019

Municipal Council, Bhilwara, Through Its Commissioner, Municipal Council, Bhilwara, District Bhilwara (Raj.)

----Appellant Versus

1. Gopilal S/o Heeralal Vishnoi, R/o Rajendra Marg, Near Purandasji Ki Bagechi, Bhilwara.

2. Lrs Of Jagdish Chandra, S/o Heeralal Doot 2/1. Smt. Manjula Rani W/o Late Shri Jagdish Chandra Doot, R/o Pur, District Bhilwara

----Respondents

For Appellant(s) : Mr. Rajesh Parihar, AGC For Respondent(s) : Mr. Prashant Tatia for Mr. Sajjan Singh Rajpurohit.

HON'BLE MR. JUSTICE ARUN BHANSALI

Judgment

11/01/2021

This appeal is directed against the judgment & decree dated

23.11.2012 passed by the Additional Civil Judge (Jr.Div.), No.2,

Bhilwara and judgment & decree dated 27.08.2019 passed by the

Additional District Judge No.1, Bhilwara, whereby the suit filed by

respondent Gopilal for permanent and mandatory injunction has

been decreed and the appeal filed by the appellant has been

dismissed, respectively.

The respondent - Gopilal filed a suit, inter-alia, with the

averments that he was in possession of the suit property as tenant

of Jagdish Chandra - defendant No.2, however, he was being

sought to be evicted by the appellant and notice in this regard has

been issued.

(2 of 3) [CSA-240/2019]

A prayer was made that the appellant be restrained from

evicting the appellant from the suit property.

Written statement was filed by the appellant, inter-alia,

indicating that the land in question belonged to the appellant and

that the plaintiff was a trespasser.

The trial court, after the evidence was led by the parties,

came to the conclusion that in a previous suit filed by Jagdish

Chandra - landlord of the plaintiff, it was held that the land in

question belongs to said Jagdish Chandra and while deciding issue

No.2 pertaining as to whether the land in question was owned by

the appellant, based on the previous proceedings, the issue was

decided against the appellant.

Feeling aggrieved, the first appeal was filed. The First

Appellate Court, after hearing the parties, reiterated the findings

recorded by the trial court and consequently, dismissed the

appeal.

It is submitted by learned counsel for the appellant that the

two courts below were not justified in decreeing the suit /

dismissing the appeal, inasmuch as, the burden of issue No.2

could not have been placed on the appellant.

I have considered the submissions made by learned counsel

for the appellant and have perused the judgments of two courts

below.

So far as placing the burden of issue No.2 on the appellant is

concerned, in view of the written statement filed, wherein it was a

specific claim of the appellant that the land in question belonged

to the appellant and the plaintiff was a trespasser, the trial court

was justified in placing the burden on the appellant.

(3 of 3) [CSA-240/2019]

The submission made that the burden should have been

placed on the plaintiff, cannot be countenanced for the simple

reason that if the burden was placed on the plaintiff, he would

have been burdened to prove something in negative and

therefore, the submissions made in this regard have no substance.

Both the courts have concurrently found that the plaintiff

was tenant of respondent No.2 and that a previous suit between

the said respondent No.2 and the appellant, on similar issues, has

already been decreed by the trial court, against which, the appeal

has already been dismissed and therefore, the judgments of two

courts below do not give rise to any substantial question of law.

Consequently, there is no substance in the appeal, the same

is, therefore, dismissed.

(ARUN BHANSALI),J

64-Rmathur/-

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