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2010 Supreme(MP) 204
2011 jk fu 31 2011 RN 31
¼mPp U;k;ky;½ (HIGH COURT)
U;k- ,-ds- JhokLro
A.K. Shrivastava, J.
cnzhizlkn rFkk ,d vU; fo- e-iz- jkT;
Sadri Prasad and another
Vs
State of M.P.
f}rh; vihy dz- 1069 lu~ 2005 ¼Xokfy;j½( fu.khZr fnukad 6-3-2010A
Second Appeal No. 1069 of 2005 (Gwalior);
Decided on: 6.3.2010
Advocates Appeared:
D.K. Katare for appellants;
P.N. Gupta, Govt. Advocate for respondent/State.
Headnote:¼1½ flfoy izfdz;k lafgrk] 1908 & vk-8 fu- 10 & O;kfIr & fyf[kr dFku izLrqr ugha fd, & U;k;ky; dk fodYi gS fd ;k rks fu.kZ; lquk, ;k ekeys esa dk;Zokgh djs & ,slk dksbZ mica/k ugha gS fd fyf[kr dFku ds vHkko esa lh/kh fMdzh ikfjr dh tkuk pkfg,A , vkb vkj 1989 ,l lh 162 vuqlfjrA 1977 ¼2½ e-iz- ohDyh uksV~l 443 rFkk 2000 jk-fu- 68 ¼mPp U;k-½ voyafcrA 2004 ¼1½ ts ,y ts 199 rFkk 1975 ts ,y ts 333 izHksfnrA ¼iSjk 9½
¼2½ Hkw&jktLo lafgrk] 1959 ¼e-iz-½ & /kkjk 158 & [kljk laor~ 1937 ls 1940 ds vk/kkj ij HkwfeLokeh vf/kdkj rFkk fu"ks/kkKk dh ?kks"k.kk ds fy, flfoy okn & [kljk dh izfrfyfi izekf.kr izfrfyfi ugha & ;g iVokjh }kjk nh xbZ & [kljk lkfcr djus ds fy, iVokjh dk ijh{k.k ugha djk;k & okn fMdzh ugha fd;k tk ldrkA ¼iSjk 11½
¼3½ lk{; vf/kfu;e] 1872 & /kkjk 77 & iVokjh }kjk nh xbZ [kljk dh vizekf.kr izfrfyfi & yksd nLrkost ugha ;g izkbosV nLrkost gS & iVokjh ds ijh{k.k }kjk bls lkfcr djuk visf{kr gS fdarq lkfcr ugha fd;k & ,slk [kljk tks iVokjh dk izek.ki= gS mls izLrqr djus ek= ls dksbZ Qk;nk ugha fn;k tk ldrkA , vkb vkj 1959 ,l lh 960 vuqlfjrA ¼iSjk 11½
¼4½ flfoy izfdz;k lafgrk] 1908 & vk- 41] fu- 27 rFkk /kkjk 100 & okni= esa vfHkopu ugha & vfrfjDr lk{; ds }kjk u;k vfHkopu & f}rh; vihy izdze ij eatwj ugha fd;k tk ldrkA ¼iSjk 13½
¼5½ flfoy izfdz;k lafgrk] 1908 & vk- 6 fu- 1 & vfHkopu & vFkZ & ls vfHkizsr gS & vfHkopu ls vk‘k; okni= ;k fyf[kr dFku ls gksxk & vihy Kkiu ughaA ¼iSjk 14½
(1) Civil P.C., 1908 -- O. 8 R. 10-- scope of -- written statements not filed -- option is with the Court either to pronounce judgment or proceed with the case -- there is no such provision that in absence of written statement decree should be passed straightway. AIR 1989 SC 162 followed. 1977 (II) MPWN 443 and 2000 RN 68 (HC) relied on. 2004 (1) JLJ 199 and 1975 JLJ 333 distinguished. [Para 9
(2) Land Revenue Code, 1959 (M.P.) -- S. 158 -- civil suit for declaration of Bhumiswami rights and injunction on basis of khasra Samvat 1937 to 1940 -- copy of khasra not certified copy -- it was given by Patwari -- Patwari not examined to prove the khasra -- suit cannot be decreed. [Para 11
(3) Evidence Act, 1872 -- S. 77 -- uncertified copy of khasra was given by Patwari -- not a public document it is a private document -- it is required to be proved by examining Patwari but not proved -- no benefit can be given on mere production of such khasra which is certificate of Patwari. AIR 1959 SC 960 followed. [Para 11
(4) Civil P.C., 1908 -- O. 41, R. 27 and S. 100 -- no pleading in plaint -- new plea by way of additional evidence -- cannot be allowed at second appeal stage. [Para 13
(5) Civil P.C., 1908 -- O. 6 R. 1 -- pleadings -- means of -- pleading would mean plaint or written statement -- not memorandum of appeal. [Para 14
1. Shri Katare is heard on the question of admission.
2. By this second appeal, the plaintiffs are assailing the judgment and decree passed by the learned first appellate Court reversing the decree passed by the trial Court decreeing the suit of the plaintiffs.
3. A suit for declaration of Bhumiswami right and injunction has been filed by the plaintiff on the ground that he is the Bhumiswami of the disputed property which is the subject matter of the suit and because the defendant/State Government and its employees are trying to interfere in the possession of the plaintiff, hence, it be declared that plaintiff are the Bhumiswami and are also in possession of the suit property and further, the defendant be restrained from interfering in their possession.
4. The defendants/State Government did not file any written statement.
5. The plaintiff has filed one document Ex. P/1 alleged to be khasra of Samvats 2037 to 2040 to demonstrate his Bhumiswami right as well as possession. The plaintiff also examined himself, but no evidence was adduced by the defendant. The learned trial Court decreed the suit of the plaintiff, however, in appeal which was filed by the defendant/State Government it has been allowed by the impugned judgment and decree. Hence, this second appeal has been filed.
6. The contention of learned counsel for the appellants is that the suit was filed on 15.12.1983 and the corresponding Samvat was 2040. There is specific pleading of the plaintiff that he is the Bhumiswami having possession of the suit property for last 35-40 years. However, no written statement has been filed by the defendant, therefore, the averments made in the plaint shall be deemed to be admitted under Order VIII Rule 3 and 4 of CPC and hence, the learned first appellate Court erred in substantial question of law in dismissing the suit of the plaintiff. In support of his contention learned counsel placed reliance in the case of Mohd. Syed and another v. M/s. Hindustan Petroleum and others reported as 2004 (1) JLJ 199.
7. The second contention of learned counsel for the appellants is that despite the plaintiff proved his possession on the suit property and also proved his status as Bhumiswami by filing Khasra Ex. P/1 which is of Samvats 2037 to 2040, the learned first appellate Court by discarding the documentary and oral evidence erred in law in dismissing the suit of the plaintiff. It has been put forth by him that since there is no cross-examination on the testimony of the plaintiff, therefore, the statement given by him since it remained unchallenged, is binding on the defendant. In support of his contention, learned counsel for the appellants has placed heavy reliance on the two Division Bench decisions of this Court in the cases of Kasturchand v. Kapurchand reported as 1975 JLJ 333 and Mohd. Syed (supra). It has also been put forth by learned counsel for the appellants that at the time of abolition of Zamindari system, since the plaintiffs' predecessors were in possession of the suit property which was in their self cultivation, therefore, it never vested in the State Government. After the death of plaintiffs' predecessors, thereafter his father Jiwan Lal and after the death of their father ultimately they became the Bhumiswami of the suit property and are also possessing the same. An application under Order41 Rule 47 of CPC (I.A. No. 10912/2005) in that regard has been filed alongwith photocopy of the khasra of Samvat 2007.
8. Considered the arguments.
9. So far as the first contention of learned counsel for the appellants that since no written statement has been filed by the defendant and therefore, the averments made in the plaint shall be deemed to be admitted is concerned, suffice it to say, that the option was left for learned trial Court either to decree the suit on account of non-filing of the written statement but if that option was not opted by learned trial Court and directed the plaintiffs to lead evidence in order to determine thei
