1981 Supreme(MP) 352

R. K. Vijaywargiya, J.
Hajari v. Bal Kashan.
A. S. No. 241 of 1970 (I); Decided on 27-6-1981.

Headnote:(1) Civil P. C., 1908 -- S. l00 -- finding of fact based in appreciation of evidence -- interference

       

        in second appeal not called for.

        (2) Practice (Civil) -- plaintiff should prove his own case -- weakness of defendants care

        cannot be availed of.

       

        (3) Civil P. C., 1908 -- O.26,. R. 9 -- commission for investigation issuance of defendant

        closing evidence -- prayer for issuance commission there - after rightly refused.

       

        The facts giving rise to this appeal briefly stated are as follows; The plaintiff-appellant

        filed the present suit for possession of 10 Biswas of land forming part of Survey No. 220

        belonging to him which according to the plaintiff was wrongfully take possession of by the

        defendant in the year 1963.

        The defendant denied that he has taken wrongful possession of the suit land.

        According to him the land formed part of his Survey No. 224 and that

       

       

        he

       

       

        was in rightful possession of his own land. The trial Court held that the plaintiff failed

        to prove that the suit land formed part of his Survey No. 220 and dismissed the suit The

       appeal preferred by the plaintiff was also unsuccessful. Aggrieved by the decree of the

        Court below the plaintiff has preferred this appeal.

       

        Held : The learned counsel for the appellant contended that proper opportunity to held evidence to the plaintiff was not given and that his application under Order 26, rule 9 of CPC was wrongly dismissed by the trial Court. He, therefore, prayed that the suit be remanded for fresh disposal after giving proper opportunity to the p1ainliff to lead evidence. The contention of the learned counsel for the appellant cannot be upheld. When the case was fixed for evidence on 3-12-68 the plaintiff examined himself and closed his case. The plaintiff did not state that he wanted to examine any witness. In the circumstances it cannot be said that the plaintiff was not given proper opportunity to adduce evidence the plaintiffs application under O.26, R. 9, CPC was dismissed by the trial Court on the ground that the plaintiff has closed his case and If the application is allowed it would reopen the case. It cannot be said that the trial Court exercised its discretion wrongly in dismissing the application of the plaintiff for appointment of Commissioner when the plaintiff failed to prime his case by proceeding the relevant record & examining witnesses who had knowledge of the facts of the case. The plaintiff could have examined the Patwari to prove that 10 Biswari as land really formed part of his suney No. 220. He could have also produced the relevant record. Thus, it cannot be said that the trial Court did not give proper opportunity to the plaintiff to lead evidence or committed any error in dismissing the application of the plaintiff under Order 26, rule 9.CPC.It was next contended by the lear,1ed counsel for the applicant that the defendant has not proved that 10 Biswas of land formed part of his Survey No. 224. This contention is also not well founded. Firstly the suit was based on title and it was for the plaintiff to prove his title and he cannot take advantage of the weakness of the defendants case. Secondly on appreciation of the evidence adduced by the defendant the Court below held that 10 Biswas of 1o.nd formed part of defendants Survey No. 224. This is a finding of fact based on appreciation of evidence and cannot be interfered within second appeal. Appeal dismissed.