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MADHYA PRADESH HIGH COURT
(GWALIOR BENCH)
A.K. Shrivastava, J.
Badri Prasad & Anr. —Appellants
versus
State of M.P. —Respondent
S.A. No. 1069 of 2005
Decided on 6.3.2010
Counsel for the Parties:
For the Appellants:D.K. Katare, Advocate.
For the Respondent:P.N. Gupta, Govt. Advocate.
IMPORTANT POINT
Memorandum of appeal cannot be said to be pleadings under Order VI, Rule 1 of CPC which pertains to pleadings and according to which pleading would mean plaint or written statement.
Headnote:Civil Procedure Code, 1908— Section 100—Second appeal—Against dismissed of suit for declaration and injunction—Plaintiff claimed his Bhumiswami right and possession over property in dispute—Defendant not filed written statement trial Court had option either to decree suit or to direct plaintiff to produced evidence in support of his claim— ‘Khasra’ produced by plaintiff not a certified copy of revenue record—Mere bald and oral statement of plaintiff not established title of plaintiff—No documentary proof of ownership of plaintiff—Appellant plaintiff moved an application in Second appeal to receive in evidence photocopy of ‘khasra’ of Samvat 2007—Claiming persons mentioned in khasra 2007 to be predecessors of original plaintiff—Name of those persons not mentioned in plaint—Such contentions cannot be accepted in Second appeal—Though such contentions mentioned in memo of appeal even then memo of appeal not amounts to plaintiffs—First Appellate Court rightly dismissed suit-No substantial question of law involved in Second appeal—Appeal dismissed. (Paras 11 to 15)
A.K. Shrivastava, J.—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 plaintiffs are the Bhumiswami and are also in possession of the suit property and further, the defendant be restrained from thereafter in their possession.
4. The defendant/State Government did not file any written statement.
5. The plaintiff has filed one document Ex. P/1 alleged to be khasra of Samwats 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 Civil Procedure Code 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, 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 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, 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 plaintiff’s 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 Order XLI, Rule 47 of Civil Procedure Code (LA. 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
