Adverse inference cannot be drawn for non-production of a document whose existence is not in dispute. The suit for mandatory injunction was not maintainable without challenging the permission granted for the wall's construction.

This appeal filed under section 100 of the Civil Procedure Code, 1908 is by the original defendant No. 1 who is aggrieved by the decree passed by the first Appellate Court decreeing the suit filed by the respondent No. 1 herein.

2. The respondent No. 1 is the original plaintiff. It is her case that she is the owner of the Plot No. 05/33 situated at Gondia. This plot was purchased by her along with her son on 4-8-1983. Towards the western side of that plot, the house of defendant No. 1 on plot No. 05/18 was situated. There was a service-lane between both the houses admeasuring about 348 feet. According to the plaintiff, this service lane was in existence since long. The defendant No. 1 had constructed a wall at the entrance of the service-lane without obtaining any permission of the Municipal Council, hence the Municipal Council removed the said wall. The defendant No. 1 reconstructed the said wall after obtaining the permission in a illegal manner. The plaintiff therefore filed a suit for mandatory injunction that the defendant be directed to remove the said wall and keep the service-lane open as an approach way.

3. The defendant No. 1 filed his written statement at Exh.43. It was pleaded that the defendant No. 1 had purchased a property on 4-8-1983 from the said vendor as that of the plaintiff. It was then pleaded that on account of directions issued by the defendant No. 2, the wall had been earlier removed. The same was again raised on the basis of fresh sanction granted by the defendant No. 2 on 4-9-1989.

Defendant No. 2 filed its written statement at Exh.46. It was stated initially that the permission was granted on 23-3-1986 for constructing the wall. As the permission thereafter was revoked, the said wall was removed. Subsequently, permission was again granted on 4-9-1989 and on that basis, the wall was reconstructed.

4. The parties led evidence before the trial Court. It was held that the plaintiff had failed to prove the existence of the service-lane since 1944. It was further held that it was not proved that this wall had been illegally constructed. The suit was therefore dismissed. The Appellate Court held that though it was the case of defendant No. 1 that permission had been granted for constructing the wall, said order was not produced. An adverse inference was therefore drawn against the defendant No. 1. On that basis, the Appellate Court allowed the appeal and decreed the suit. Being aggrieved, this appeal has been filed.

5. Following substantial questions of law were framed while admitting the appeal.

“i) Whether non-production of a sanction order which according to defendant No. 1 was granted by defendant No. 2 can be used as a circumstance to draw adverse inference against the defendant No. 1?

(ii) Whether the suit as framed and filed by the Respondent No. 1 for mandatory injunction is maintainable especially when there is no challenge to the permission granted by the Municipal Council to the Appellant for construction of the wall?

(iii) Whether in absence of any proof any finding of fact can be recorded ? If no, whether the Lower Appellate Court was justified in holding the existence of a service lane since 1944, when no evidence either oral or documentary has been adduced by the Respondent No. 1 on record to prove the said fact ?

(iv) Whether a fact requiring documentary proof can be said to have been legally proved, when only oral evidence is adduced ? If no, whether the Lower Appellate Court has erred in relying upon the hearsay testimony of the plaintiff and that of PW2 to hold the existence of service lane?”

6. Shri J. T. Gilda, learned counsel for the appellant submitted that the Appellate Court committed an error of drawing an adverse inference against the defendant No. 1 for not producing the order of sanction granting permission to construct the wall dated 4-9-1989. It was submitted that in the plaint it had been pleaded in paragraphs 4 and 5 that such permission was granted to the defendant No. 1 b