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IN THE HIGH COURT OF MADHYA PRADESH
Anand Pathak, J.
Sarita Sharma (Smt.) v. State of M. P. & Others
First Appeal No. 34 of 2003 (Gwalior); against the judgment and decree dated 25.11.2002 passed by the VI Additional District Judge, (Fast Track Court), Gwalior;
Decided on 26.8.2019
(1) Civil P. C., 1908 -- O. 41 R. 27 -- photocopy of khasra entries filed along with application -- not original copy or certified copy -- not material documents -- cannot be taken into consideration for remanding matter back to trial Court. [Paras 19 & 23
(2) Civil P. C., 1908 -- O. 41 R. 27 -- provisions of O. 41 R. 27 have not been engrafted in Code to patch up weak point in case and fill up omission in Court of appeal -- it does not authorize any lacuna or gaps in evidence to be filled up at stage of appeal -- no additional evidence ought to be permitted to be taken on record, which was well within knowledge of plaintiff during trial and could have been adduced during trial -- it is the duty of litigating party to show due diligence. (2001)7 SCC 503 and (2006)9 SCC 772 followed. [Para 21
(3) Evidence Act, 1872 -- Ss. 120 and 114 (g) -- Civil P. C., 1908 -- O. 18 R. 4 -- plaintiff filed suit through power of attorney, i.e., her husband -- power of attorney got himself examined -- sale deed being private document, required to be proved in accordance with provisions of Evidence Act -- unless so proved, cannot be acted upon -- nobody related to sale deed examined -- sale deed not proved -- party abstains from entering witness box -- would give rise to adverse inference -- presumption u/s. 114 of Evidence Act would go against party who did not enter into witness box -- material documents having discrepancies and omissions -- it was duty of plaintiff to enter into witness box -- husband of plaintiff did not state that he is deposing in capacity of her husband therefore he is competent to give evidence not as plaintiff's witness but as plaintiff herself -- plaintiff did not choose to proceed with aid of S. 120 of Evidence Act -- chose to execute power of attorney in favour of husband therefore proceeded under Order III of CPC -- if husband was acting u/s. 120 of Evidence Act then power of attorney was not required -- plaintiff could not prove her case through her power of attorney holder -- adverse inference can be drawn against plaintiff because she did not appear in witness box -- trial Court rightly dismissed suit. (1999)3 SCC 573 and (2010) 10 SCC 512 followed. AIR 1927 PC 230, AIR (1930) Lah.1, AIR (1931) Bom. 97, AIR 1970 MP 225 and AIR 2006 MP 107 relied on. (2005) 2 SC 217, 2009(1) MPWN 9 and 2010(2) JLJ 271 referred to. [Paras 25 to 29
¼1½ flfoy izfØ;k lafgrk] 1908 & vk-41 fu-21 & vkosnu ds lkFk [kljk izfof"V;ksa dh Nk;kizfr Qkby dh xbZ & ewy vFkok izekf.kr izfrfyfi ugha & rkfRod nLrkost ugha & fopkj.k U;k;ky; dks ekeyk izfrizsf"kr djus ds fy, mu ij fopkj ugha fd;k tk ldrkA ¼iSjk 19 ,oa 23
¼2½ flfoy izfØ;k lafgrk] 1908 & vk-41 fu-27 ds mica/k lafgrk esa blfy, la;ksftr ugha fd, x, gSa fd vihy U;k;ky; esa ekeys ds nqcZy fcanq dks Bhd fd;k tk lds vkSj yksi dh iwfrZ dh tk lds &og vihy ds izØe ij lk{; dh fdlh deh vFkok fjfDr dks iwjk djus dk izkf/kdkj ugha nsrk & ,slk dksbZ Hkh vfrfjDr lk{; vfHkys[k ij ysus dh vuqefr ugha nh tkuk pkfg, tks fopkj.k ds le; oknh dks Hkyh Hkk¡fr Kkr Fkk vkSj fopkj.k ds nkSjku is'k fd;k tk ldrk Fkk & eqdnek yM+us okys i{kdkj dk drZO; gS fd og lE;d~ rRijrk fn[kk,A ¼2001½7 ,l lh lh 503 rFkk ¼2006½9 ,l lh lh 772 vuqlfjrA ¼iSjk 21
¼3½ lk{; vf/kfu;e] 1872 & /kkjk 120 rFkk 114 ¼N½ & flfoy izfØ;k lafgrk] 1908 & vk-18 fu-4 & okfnuh us eq[rkj vFkkZr~ vius ifr ds ek/;e ls okn Qkby fd;k & eq[rkj us Lo;a dh ijh{kk djkbZ & foØ; foys[k futh nLrkost gksus ds dkj.k] lk{; vf/kfu;e ds mica/kksa ds vuqlkj lkfcr fd;k tkuk visf{kr & tc rd bl izdkj lkfcr ugha fd;k tk,] ml ij dkjZokbZ ugha dh tk ldrh & foØ; foys[k ls lacaf/kr fdlh dh ijh{kk ugha dh xbZ & foØ; foys[k lkfcr ugha & i{kdkj lk{kh dB?kjs esa izfo"V gksus ls izfojr & izfrdwy fu"d"kZ fudysxk & lk{; vf/kfu;e dh /kkjk 114 ds v/khu mi/kkj.kk ml i{kdkj ds fo#) tk,xh tks lk{kh dB?kjs esa izfo"B ugha gqvk &rkfRod nLrkostksa esa QdZ rFkk dksi & lk{kh dB?kjs esa izfo"V gksuk okfnuh dk drZO; Fkk & okfnuh ds ifr us ;g dFku ugha fd;k fd og okfnuh ds ifr dh gSfl;r ls vfHklk{; ns jgk gS blfy, og okfnuh ds lk{kh ds :i esa ugha vfirq Lo;a okfnuh ds :i esa lk{; nsus ds fy, l{ke gS & okfnuh us lk{; vf/kfu;e dh /kkjk 120 dh lgk;rk ls dk;Zokgh djuk ilan ugha fd;k & ifr ds i{k esa eq[rkjukek fu"ikfnr djuk ilan fd;k blfy, flfoy izfØ;k lafgrk ds vkns'k 3 ds v/khu dk;Zokgh dh & ;fn ifr lk{; vf/kfu;e dh /kkjk 120 ds v/khu dk;Z dj jgk Fkk rks eq[rkjukek visf{kr ugha Fkk & okfnuh vius eq[rkj ds ek/;e ls viuk i{kdFku lkfcr ugha dj ldh & okfnuh ds fo#) izfrdwy fu"d"kZ fudkyk tk ldrk gS D;ksafd og lk{kh dB?kjs esa izfo"V ugha gqbZ & fopkj.k U;k;ky; us okn Bhd gh [kkfjt fd;kA ¼1999½3 ,l lh lh 573 rFkk ¼2010½10 ,l lh lh 512 vuqlfjrA , vkb vkj 1927 ih lh 230] , vkb vkj ¼1930½ ykgkSj 1] , vkb vkj ¼1931½ cacbZ 97] , vkb vkj 1970 e-iz- 225 rFkk , vkb vkj 2006 e-iz- 107 voyafcrA ¼2005½2 ,l lh lh 217] 2009¼1½ e-iz- ohDyh uksV~l 9 rFkk 2010¼2½ ts ,y ts 271 fufnZ"VA ¼iSjk 25 ls 29
JUDGMENT
1. With consent, heard finally.
The instant first appeal under section 96 of Code of Civil Procedure has been preferred at the instance of appellant (hereinafter referred as “plaintiff”) being crestfallen by the judgment and decree dated 25.11.2002 passed by VI Additional District Judge, (Fast Track Court), Gwalior, whereby suit preferred by the appellant/plaintiff has been dismissed.
2. Precisely stated facts of the case are that appellant/plaintiff filed a suit against the respondents (hereinafter referred as “defendants”) for declaration of title, possession and permanent injunction in respect of suit property situate at Municipal Corporation bearing Nos. 32/752, 32/752/1 and 35/752/2. As per the pleadings, plaintiff purchased the first plot vide registered sale deed dated 3.10.1981 from Smt. Anuradha Pathak and Smt. Minakshi Sharma, second plot vide registered sale deed dated 12.4.1982 from Smt.Minakshi Sharma and third plot vide registered sale deed dated 12.11.1987 from Brij Kishore. At the time of purchase, they were the owners of the disputed suit property and their names were mentioned in Municipal Corporation, Gwalior as owners. It is further submitted that foundation had been laid over the property in question and one room had been constructed.
3. It is further pleaded the on 24.4.1989, employees of defendant No.1 (State of M.P. through Collector) with the help of defendants No. 2 and 3 (Commissioner Municipal Corporation and Administrator Municipal Corporation, Gwalior) had tried to remove the construction and interfere in the peaceful possession. Some goods lying over the plot were also taken forcibly.
4. Through the amendment in the plaint, it was added by the plaintiff that defendants No.2 and 3 (Commissioner & Administrator, Municipal Corporation, Gwalior) gave permission for construction vide permission letters dated 8.8.1989, 12.10.1990 and 20.01.1995, which demonstrate that property is under the domain of Municipal Corporation. Nazul Department had no relation what so ever with the property. Therefore, Nazul Department does not have any right to interfere in the suit property. With these pleadings, suit for declaration, title, possession and permanent injunction was preferred.
5. Defendant No.1 filed the written statement and denied the claims of the plaintiff. It was the submission of the State Government that disputed property is not of ownership and possession of plaintiff, but is of State Government and plaintiff, in fact, has encroached upon the land which has been removed before 2.5.1989 and no possession of plaintiff exists over the suit property. It is further submitted that if plaintiff has taken permission for construction from Municipal Corporation, Gwalior in respect of the suit property, then it does not give any benefit to the plaintiff regarding her title. Since the plaintiff has indirectly accepted her encroachment, therefore, encroacher cannot be given any relief in the way she sought. The objection in respect of noncompliance of section 80 of CrPC was also raised.
6. Defendants No.2 and 3 (Commissioner & Administrator, Municipal Corporation, Gwalior) also denied the allegations and raised the objection regarding non receipt of any notice prior to filing of suit.
7. Trial Court framed as many as 11 issues for adjudication on which the evidence had to be led by the parties. Issues No.6 and 7 were regarding title of the plaintiff and plaintiff had to prove the said issues before establishing her claim over the suit property.
8. After evidence of the parties being led and arguments being advanced, trial Court came to the conclusion that plaintiff could not prove her case as well her title over the suit property and therefore, dismissed the suit with cost. Against the dismissal of suit, plaintiff as appellant preferred the instant civil regular appeal before this Court.
9. Learned Senior Counsel appearing on behalf of the appellant/plaintiff submits that plaintiff has taken all permissio
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