Naim Khan v. Ashok Chaudhari and another)
Case Details
Court No. - 2 Case :- SECOND APPEAL No. - 33 of 2019
Legal Reasoning
Appellant :- Naim Khan Respondent :- Ashok Chaudhari And 4 Others Counsel for Appellant :- Kavish Suhail,Mr. H.N. Singh Hon'ble Dinesh Pathak,J. 1. Heard learned counsel for the appellant at admission stage and perused the record on board. Record of the courts below was already summoned, vide order dated 10.1.2019, which is available along with second appeal. 2. Instant second appeal has been filed on behalf of the plaintiff-appellant assailing the judgment and decree dated 15.10.2018 passed by VIth Additional District Judge, Aligarh in civil appeal No. 102 of 2017 affirming the judgment and decree dated 24.7.2017 passed by the Civil Judge (Junior Division) Kol, Aligarh in original suit No. 390 of 2014 (Naim Khan Vs. Ashok Chaudhari and another). 3. Facts culled out from the pleadings of the parties are that the plaintiff-appellant has filed suit for permanent injunction against the defendants/respondents with a relief that the plaintiff may not be evicted from the land in question except in accordance with law. Plaintiff is claiming his possession over the property in question being tenant of the defendants. As per the averments made in the plaint, plaintiff has taken the vacant land situated at Sarai Rehman, G.T. Road, Aligarh to run the workshop on the rent of Rs. 1300/- per month. The entry of the rent received by the respondent No. 2 was made in his personal diary and the signatures were made by the brother of the respondent No. 1. In the year 2002, Rajpal Singh, brother of the defendant No. 2 had died. After the death of Rajpal Singh, his heirs continued to realize the rent at the rate of Rs. 1300/- per month from the plaintiff, however, no receipt was furnished to the plaintiff. On 6.8.2014, the respondents have forcibly tried to evict the plaintiff from the premises in question, consequently, suit has been filed for permanent injunction. Owing to absence of the defendants the trial court has passed an order dated 20.4.2015 to proceed ex-parte against them. Vide judgment and decree dated 24.4.2017, the suit has been dismissed ex-parte on the ground that no unimpeachable evidence has been adduced on behalf of the plaintiff to prove his possession based on tenancy over the property in question. The appellate court, on an appeal being filed on behalf of the defendant appellant, has dismissed the appeal and affirmed the judgment and decree passed by the trial court on the ground that the plaintiff has failed to prove his case with respect to the possession and tenancy. 4. Assailing the concurrent findings of fact returned by the courts below in their judgment, learned counsel for the plaintiff/appellant has placed two fold submissions; first, pleading and the examination-in-chief of the plaintiff was un- rebutted, therefore, it has to be believed/accepted by the courts below and the second, the appeal has illegally been dismissed by the first appellate court without considering the application under order 41 Rule 27 CPC for additional evidence filed on behalf of the plaintiff-appellant. In support of his first submission, learned counsel for the appellant has placed reliance on the provisions as enunciated under Order 18 Rule 4 CPC, which denotes that the provisions for recording of evidence. This is no more res-integra that the burden lies upon the plaintiff to prove his case first. Plaintiff came with the plea that he is the tenant of the land in question on the rent of Rs. 1300/- per month since 1993, however, at subsequent stage, the defendants are trying to evict him without adopting legal recourse. To prove his tenancy, the plaintiff-appellant has submitted a hand written small diary and tried to demonstrate that it is an entry of rent endorsed by the original landlord. No particular document has been adduced on behalf of the plaintiff to prove his tenancy over the land in question. The diary (paper No. 10C) has been discarded by the trial court after examining its sanctity. At the appellate stage, plea of tenancy and burden of proof has been discussed in detail by the first appellate court while deciding the point of determination No. 1. Learned first appellate court, in support of its observation, has cited the provisions of Section 101 of Indian Evidence Act and given a categorical finding that the plaintiff has to prove his case first qua his tenancy over the property in question. Both the courts below have concurrently discarded the claim of the plaintiff over the property in question being a tenant. Provisions as enunciated under Order 18 Rule 4 of CPC do not entrust duty upon the trial court to rely upon the unrebutted evidences adduced on behalf of the parties. Plaintiff can not skip from the burden to prove his case first. Proviso to Rule 4 (1) of Order 18 clarifies that where documents are filed and the parties rely upon the document, the proof and admissibility of such documents which are filed along with the affidavit shall be subject to the orders of Court. 5. Second submission made by the learned counsel for the appellant is also unfounded under law. Record reveals that on 24.9.2018, the plaintiff appellant has moved a hand written application (paper No. 7C-2) under Order 41 Rule 27 CPC read with Section 151 CPC for submitting additional documentary evidence which are photographs of the workshop. I have gone through the application and the appended documents. Application (paper No. 7C-2) was filed without affixing requisite stamp (court fee). Even otherwise, in additional evidence simple coloured photographs of the alleged work shop have been filed. At this juncture, when the said documents were not admitted in the appeal, I constrained myself to make any comment on these photographs. Even assuming, for the sake of submission made by the learned counsel for the appellant, that these coloured photographs are related to the plot in question, the same cannot be made basis to regularize the unauthorized possession, if any, of the plaintiff. Submission is that the aforesaid application was filed on 24.2.2018, which was taken on record, however, the appeal has been dismissed finally without passing any order on the application under Order 41 Rule 27 of the CPC. In my considered opinion, even if the said coloured photographs are admitted/accepted on the record, the same can hardly cast any effect to the result of the appeal unless the plaintiff proves, being a tenant over the property in question, his legal possession. 6. Learned counsel for the appellant has failed to make out any substantial question of law in assailing the judgments passed by the the courts below which are concluded by the concurrent findings of facts. The plaintiff has failed to adduce any unimpeachable and credible evidence in support of his pleadings as made in the plaint. Mere absence of the defendants, who has not rebutted the pleadings of the plaintiff, is not sufficient to accept the case set up by the plaintiff without any corroborative evidence. Both the courts below have concurrently held that the defendant is not the tenant over the property in question, therefore, suit filed on his behalf being a tenant fails. I do not find any force in the instant second appeal. No substantial question of law is made out to entertain the appeal under Section 100 CPC. The case of the plaintiff is concluded by the concurrent findings, which does not deserve any interference of this Court. 7. Resultantly, instant second appeal, being devoid of merits, is dismissed with no order as to the costs. Order Date :- 16.11.2022 vinay Digitally signed by VINAY KUMAR Date: 2022.11.18 16:56:22 IST Reason: Location: High Court of Judicature at Allahabad