Ajay Kumar Agarwal v. Omprakash Agarwal

Chhattisgarh HC27 Feb 2025FA/65/2023

Case brief

AI extract

What is this about?

Burden of proof; onus probandi; initial onus on plaintiff; weakness of defence cannot discharge plaintiff's onus; Sections 101, 102, 103 Evidence Act; perverse finding based on no evidence; presumption cannot substitute proof; first appeal under Section 96 CPC against recovery decree; Tin Shed construction dispute; damage to CCTV and machinery; expert report absence; Chhattisgarh High Court, FA No. 65 of 2023, decided 28.02.2025; decree of Rs. 13,14,000/- set aside; suit dismissed; appeal allowed.

What did the court decide?

First Appeal allowed; judgment and decree dated 28.02.2023 passed by the Additional District Judge, Dongargarh in Civil Suit No. 02-B/2021 set aside; suit filed by the plaintiffs dismissed; decree to be drawn up accordingly. ¶¶95

Ajay Kumar Agarwal Vs Omprakash Agarwal — Chhattisgarh HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

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Issue for consideration

Whether the findings of the trial Court regarding the entitlement of the plaintiff to recover Rs. 13,14,000/- from the defendants with 6% interest for 7 months are legal, justified, free from perversity, and whether they warrant interference by this Court.

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Court's answer

The plaintiff failed to discharge the burden lying on him to prove, by cogent evidence, that the machines and equipment installed in the Tin Shed were damaged due to cracks and leakage caused by poor quality construction; the exhibited purchase bills did not establish such damage, the plaintiff admitted no expert report of damage was filed, and even Ex.P-20 recorded Rs. 3,86,000/- as recoverable/outstanding.

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Ratio / Principle

The trial Court decreed Rs. 13,14,000/- without recording any finding that the plaintiff proved, by cogent evidence and material on record, payment of Rs. 13,14,000/- in addition to the Rs. 7,00,000/- admitted by the defendant; the decree rested on presumption and assumption (paragraph 18 of the trial Court's judgment) and is therefore unsustainable.

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Key takeaways

The trial Court's finding that the construction cost would stand adjusted towards rent (on the footing that no prudent man would invest Rs. 15,00,000/- and use the Tin Shed for only two years) is perverse and based on no evidence, as no written agreement and no material showing payment of rent was placed on record by the plaintiff.ratio¶¶67
The initial onus is always upon the plaintiff to prove his case; if he discharges that onus, the onus shifts to the defendant. In this case nothing was discharged by the plaintiff, who could not rely on the weakness or absence of the defence.ratio¶¶68

Detailed headnote1 paragraphs

First Appeal under Section 96 CPC against the judgment and decree dated 28.02.2023 of the Additional District Judge, Dongargarh, in Civil Suit No. 02-B/2021, whereby the plaintiffs' suit for recovery of Rs. 22,51,822/- (payments made for construction of a Tin Shed on the defendants' land, plus damages to machinery) was partially decreed for Rs. 13,14,000/- with 6% per annum interest for 7 months. Held, allowing the appeal: the initial onus lay squarely on the plaintiffs to prove their payments and the alleged damage by cogent evidence; the exhibited purchase bills did not establish that the machines were damaged due to cracks and leakage in the Tin Shed, and the plaintiff admitted that no expert report of damage was filed; the trial Court decreed Rs. 13,14,000/- without recording any finding that the plaintiffs proved payment of that sum in addition to the Rs. 7,00,000/- admitted by the defendant, and proceeded on presumption and assumption (that no prudent man would invest Rs. 15,00,000/- for two years' use, with construction cost adjusted towards rent) although no written agreement or proof of rent payment existed on record; such findings are perverse and based on no evidence. The Court relied on Supreme Court decisions on burden of proof and onus probandi (Anil Rishi v. Gurbaksh Singh; Rangammal v. Kuppuswami; State of M.P. v. Nomi Singh; Sri Ram Mandir v. S. Rajyalaxmi), reiterating that a plaintiff cannot rely on the weakness or absence of the defence to discharge his onus. Judgment and decree set aside; suit dismissed.

2025:CGHC:10090-DB

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

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FA No. 65 of 2023

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Order Reserved On : 24.01.2025

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Order Delivered On : 28.02.2025

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Ajay Kumar Agarwal S/o Late Dhisulal Agrawal Aged About 45 Years R/o Bamleshwari Ward No.11, Dongargarh, District Rajnandgaon, Chhattisgarh. (Defendants)

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Vijay Kumar Agrawal S/o Late Dhisulal Agrawal Aged About 43 Years R/o Bamleshwari Ward No.11, Dongargarh, District Rajnandgaon, Chhattisgarh. (Defendants)

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Smt. Asha Agarwal W/o Shree Ajay Agarwal Aged About 45 Years R/o Bamleshwari Ward No.11, Dongargarh, District Rajnandgaon, Chhattisgarh. (Defendants)

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... Appellants / Defendants

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versus

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Omprakash Agarwal S/o Hanuman Prasad Agrawal Aged About 57 Years R/o Hanuman Vatika 3-3-114/83 And 84/1 Shreemale Garden Shesh -2 Haidarguda Atapur Telgana. (Plaintiffs)

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Devesh Agarwal S/o Omprakash Agarwal Aged About 30 Years R/o Hanuman Vatika 3-3-114/83 And 84/1 Shreemale Garden Shesh -2 Haidarguda Atapur Telgana. (Plaintiffs)

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... Respondents/Plaintiff

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SANTOSH KUMAR SHARMA Digitally signed by SANTOSH KUMAR SHARMA Date: 2025.03.20 12:38:13 +0530

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For Appellants : Mr. B.P. Singh, Advocate For Respondents : Mr. Rakesh Kumar Thakur, Advocate

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Division Bench: Hon'ble Smt. Justice Rajani Dubey & Hon’ble Shri Justice Narendra Kumar Vyas

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CAV ORDER

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Per Narendra Kumar Vyas, Judge

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This First Appeal has been preferred by the appellant/defendants against the judgment and decree dated 28.02.2023 passed by Additional District Judge, Dongargarh, District Rajnandgaon in Civil Suit No. 02-B/2021 (Omprakash Agrawal v. Ajay Kumar Agrawal and others) by which learned trial Court has partially decreed the suit in favour of the plaintiff and directed the defendants to pay Rs. 13,14,000/- within two months from the date of judgement @ 6% per annum for 7 months only.

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For the sake of convenience, the parties shall be referred to in terms of Civil Suit No. 02-B/2021.

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The plaintiff has filed the civil suit for recovery of Rs. 22, 51, 822/- against the defendant mainly contending that (a) the plaintiffs and the defendants are relatives and defendant owned the land bearing khasra No. 58/6 area 0.22 in 2400 Sq feet situated at village Kurubhat, Tahsil Dongargarh District Rajnandgaon (hereinafter referred as “Tin Shed”). It is contended

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that for running sponge iron business, the defendants gave proposal on 10.05.2019 to the plaintiff to construct Tin Shed upon the land belonging to the defendants on rent and the defendant will not charge any rent on the said tin shed for two years and thereafter, the plaintiff will vacate the premises.

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(b) It is also case of the plaintiff that a formal agreement was executed on 10.05.2019 between them for obtaining GST number. It was also agreed between them that after construction of the tin shed, labour room etc., the cost of construction of the Tin Shed will be evaluated by any civil engineer. On 23.06.2019, the plaintiffs gave Rs. 7,00,000/- in presence of Puranlal Agrawal to appellant No. 1 for construction of Tin Shed, ramp and building for labourers residence in the said land and has incurred total Rs. 14,39,499/- on various heads on different dates as detailed in the plaint.

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(c) It is contended that the defendant constructed wall and other rooms which were got damaged as poor quality material was used for construction, therefore, cracks were found on the wall. It is also contended that on account of leakage, CCTV footage and other articles installed therein worth of Rs. 4,50,000/- were damaged which came to knowledge of the plaintiff during inspection on 21.03.2020. Thereafter on 21.03.2020, the plaintiffs requested the defendants to get repaired the cracks

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occurred in tin shed but the defendants did not repair the same. It is further contended neither the money was returned to the plaintiff nor leakage and cracks were repaired by the defendant which has compelled the plaintiffs to vacate the premises. On 06.06.2020, the plaintiffs orally informed the defendants regarding vacating the premises as such after 06.06.2020, there was no tenancy relationship between the plaintiffs and defendant No. 03.

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(d) Subsequently, defendants assured them that by October, 2020 they will return the money to the plaintiff but no payment was made by the defendant, therefore, the plaintiff has filed the suit for recovery of Rs. 22,51,822/-. Instead of payment, the defendants have sent a legal notice through his advocate on 13.10.2020. The plaintiffs replied to the notice sent by the defendants on 27.10.2020 in which it was mentioned that the plaintiffs have spent Rs. 14,39,499/- for construction of the Tin Shed due to which the plaintiffs have suffered a huge loss. Accordingly, he prayed for recovery of Rs. 21,39,499/- with interest @ 9% per annum from the defendants and in addition to this, they are entitled to get Rs. 15,000/- as notice expenses on various heads as detailed in the plaint.

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The defendants have filed their written statement denying the allegation made in the plaint mainly contending that

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(a) that the plaintiffs have requested them to construct tin sheds on the land owned by them. It is also case of the defendants that the plaintiffs intent to take GST number for sponge iron business for which a Tin Shed on rent is necessary, therefore, the plaintiff requested the defendant to construct Tin Shed on their land by themselves for giving him on rent. This proposal was not accepted by the defendant, therefore, on 20.06.2019 the plaintiff came to defendant with his friend Brij Mohan Sharma and stated that the Tin Shed is very much required, therefore, he will pay entire expenditure for construction of tin shed and after construction it will be given to the defendant and he will use the Tin Shed for 24 months and thereafter he will vacate the premises and cost incurred in construction of Tin Shed will be adjusted towards rent payable to the defendants. The plaintiff have stated that he will obtain electric connection and whatever expenditure is incurred that will be paid by the defendants. The plaintiff himself offered him for expenditure which is accepted by the defendant. He also admitted the fact that on 10.05.2019 an oral agreement was executed between them. It is also stated that the plaintiff has paid Rs. 7,00,000/- to the defendant in presence of Puran Lal Agrawal and also admitted the fact that on 23.02.2020 Rs. 1,22,499/- paid to M/s. Shanti Vijay Raipur. On 27.09.2019 Rs. 1,00,000/-, 14.11.20419 Rs. 1,00,000/-, on 12.12.2019 on 90,000/- and on 08.10.2020 Rs. 52,000/- was

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paid to the defendants. It is also admitted that the plaintiff has paid Rs. 1,50,000/- on 16.01.2020 to the defendants through NEFT in M/s. Balaji Briks. Rs. 40,000/- on 07.02.2020, Rs. 40,000/- on 07.03.2020 and on 11.03.2020 Rs. 45,000/-. Thus the plaintiffs has given total amount of Rs. 7,39,499/- to the defendants and no other amount was given by the plaintiffs despite persuasion by the defendants.

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(b) It was also stated that there was no agreement with regard to valuation of Tin Shed and the Tin Shed was constructed as per direction and modification sought by the plaintiff. It is also contended that the plaintiff has allowed the clerk to stay in the office of defendant and in this regard he has not paid electricity bill as well as rent of the Tin Shed. It has also been denied that sub standard quality material has been used in construction of Tin Shed. It has also been contended that the plaintiffs have not given Rs. 17,000,00/- but he has only given Rs. 7,39,499/- and despite repeated request, the amount was not paid to them. It has also been contend that no damage has been caused to the plaintiff thus, they prayed for dismissal of the suit.

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On the pleading of the parties, learned trial court has framed as many as 6 issues but since the issue No. 1, 2, 3 are relevant therefore, they are extracted below:-

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1- D;k oknhx.k }kjk izfroknhx.k dks xksnke fuekZ.k gsrq dqy 14]39]499@& :i;s ¼v{kjh pkSng yk[k mUpkyhl gtkj pkj lkS fuukucs :i;s½ O;; fd;s x;s gS\

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2- D;k izfroknhx.k }kjk xksnke fuekZ.k esa [kjkc lkexzh mi;ksx fd;s tkus ds dkj.k xksnke esa ikuh ds fydst ls oknhx.k ds 7]00]000@& :i;s ¼v{kjh lkr yk[k :i;s½ ds lh-lh-Vh-Ogh- dSejk bR;kfn izfroknhx.k ds ykijokgh ls u"V gks x;s\

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3- D;k oknhx.k] izfroknhx.k ls 22]51]822@& :i;s ¼v{kjh c;klh yk[k bUD;kou gtkj vkB lkS ck;hl :i;s½ ij 24 izfr’kr okf"kZd C;kt dh nj ls C;kt izkIr djus ds vf/kdkjh gS\

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The plaintiff to substantiate his case has examined himself as PW-1 and defendant examined himself as DW-1 and Ashok Chavda (DW-2).

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The plaintiff in support of his contentions exhibited documents i.e. Notice dated 13.10.2020 (ExP-1), Legal Notice dated 27.10.2020 (Ex. P-2), Prati Uttar (Ex.P-3), Postal receipt (Ex.P4), Bank receipt (Ex.P-5), Bank receipt (Ex.P-6), Bank receipt (Ex.P-7), Monthly purchase of sponge iron (Ex. P-8), Cash Memo (Ex.P-10), Purchase bill of magnet machine (Ex.P-11), E- way bill (Ex.P-12), Purchase of High power magnet drum (Ex.P13), Bill of Maa Bamleshwari Garage (Ex.P-14), Cash Credit Memo (Ex.P-15), Tax invoice (Ex.P-16), Tax invoice (Ex.P-17), Bank statement of Hanuman Industries (Ex.P-18), payment details (Ex.P-19) and expenses incurred by Ajay Agrawal for construction of Tin Shed (Ex.P-20).

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The plaintiff (PW-1) in his examination in chief by way of affidavit as provided under Order 18 Rule 4 CPC has reiterated the facts mentioned in the plaint. This witness was extensively crossexamined by the defendant wherein he has stated that he has not submitted any agreement dated 10.05.2019 before the Court. He has also admitted that the said agreement was executed for obtaining GST number and copy of the same has been submitted. He has also admitted that Tin Shed was not started till 10.05.2019 and the agreement was executed on 10.05.2019 pertaining to Tin Shed which was registered in the name of Ajay Agrawal, Vijay Agrawal and Asha Agrawal. He has admitted in paragraph-24 of his evidence that Tin Shed/godown for which the suit has been filed alleging the defects in construction that Tin Shed has not been begun on 10.05.2019. He has also admitted that agreement which was executed on 10.05.2019 pertains to Ajay Agrawal, Vijay Agrawal and Asha Agrawal. He has also admitted that the agreement executed on 10.05.2019 regarding Tin Shed and constructed Tin Shed both are at different place. He has also admitted that in Ex.P-20 name of Ajay, Vijay and Asha has not been mentioned. He also admitted that Ex.P-20 no date has been mentioned and it relates to which godown has also not been mentioned. He voluntarily he has stated that it relates to suit godown. He has also admitted that in Ex.P-20 it has been mentioned Rs. 3,86,000/- is

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outstanding. He has also admitted that the equipment which has been damaged, their bills have been submitted before the court but he has admitted that he has not submitted any report of expert regarding damages to these instruments as well as Tin Shed.

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The defendant has examined Ajay Agrawal as DW-1 by way of affidavit filed under Order 18 Rule 4 CPC wherein he has reiterated the stand taken in the written statement. This witnesses was cross examined by the plaintiff wherein he has stated that whatever expenditure incurred in construction of Tin Shed was born by the plaintiff. He has also denied that Rs. 7,00,000/- was given to the defendant on 23.06.2019 by the plaintiff and he has started construction from that amount. He has also admitted that in Ex.P-20 written by him wherein he has mentioned that on 23.06.2019 he has received Rs. 7,00,000/and voluntary stated that this account was prepared by him after discussion with his uncle Puran Lal regarding construction of Tin Shed. He has also stated that his uncle told him to include Rs. 7,00,000/- for assessment of amount. He has denied that the wall has sustained damage. He has also denied that he has not given the bills regarding labour payment to the plaintiff. He has stated that he has already submitted account to the plaintiff. He has stated that there is no damage in the Tin Shed but whatever

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cracks occurred it is because of the over loaded trucks used by the plaintiff.

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Ashok Chavda as DW-2 by way of affidavit as provided under Order 18 Rule 4 CPC he has reiterated the stand supporting the case of the defendants. This witness was cross examined by the plaintiff wherein he has stated that Ajay Agrawal has given payment of construction to him. This witness has also stated that Ajay Agrawal remained with him when there was discussion with regard to construction of Tin Shed. Learned trial court after appreciating the evidence, material on record vide impugned judgment and decree has partially allowed the suit as stated above.

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Being aggrieved by the judgment and decree passed by the trial court on 28.02.2023, the defendants have preferred First Appeal under Section 96 CPC before this Court.

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Learned counsel for the appellants would submit that finding recorded by the trial Court is perverse, contrary to the record as the trial Court has completely ignored the testimony of the witnesses supporting the claim of the appellants and has only taken favorable evidence in support of the respondents. He would further submit that the trial Court has failed to consider the fact that formal agreement was claimed by the defendants on 10.05.2019 which was not available in the record of the case.

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and in para-11 of the judgment, it is admitted by the trial Court that the prime question raised by the defendants has not been adjudicated by the Court. The trial Court without material on record has ordered to return Rs. 13, 14, 000/- with 6% annual interest upto 7 months which is illegal. He would further submit that there is no agreement filed by the respective parties relating to the construction of Tin Shed. Learned counsel for the appellants would further submit that it is duty of the plaintiffs to prove their case by their own evidence and they cannot be benefited from the weakness of the appellants/defendants and would pray for setting the judgment and decree passed by the trial Court. The appellant to substantiate their submissions have relied upon the judgment of Hon’ble Supreme Court in the case of State of J & K vs. Hindustan Forest Co and others reported in 2006(12) SCC 198, ILR 2023 MP 1413 in the case of Dhapu Bai and others vs. M/s. Kundu N.G. and others.

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On the other hand, learned counsel for the respondents would submit that the finding recorded by the trial Court is just and proper as the plaintiffs in clear terms have proved their case that they have paid the amount for construction of Tin Shed and the quality of the raw material used by the defendants is inferior quality which has caused damages to the equipment installed in the Tin Shed. He would further submit that the finding of the trial

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court is legal, justified and does not call for interference and would pray for dismissal of the appeal.

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I have heard learned counsel for the parties and record of the Court below with utmost satisfaction.

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From the above submission made by the parties and the point emerged for determination by this Court is whether the findings of the trial Court regarding entitlement of plaintiff to recover Rs. 13,14,000/- from the defendants with 6% interest for 7 months is legal, justified, does not suffer from perversity which warrant interference by this Court.

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From the evidence brought on record, it is quite vivid that the plaintiff has categorically pleaded in paragraph 7 of the plaint that he has paid the amount to various persons for construction of Tin Shed and has made payment of Rs. 14,39,499/-. To substantiate his submission, the plaintiff has placed on record the notice, bank deposit slip Ex.P-6, and Ex.P-14, statement of account and also exhibited cash invoices of purchase of various machines. The plaintiff has also exhibited some hand notes wherein the amount has been mentioned as 13,14,000/- and this account also demonstrates that Rs. 3,86,000/- is recoverable. The plaintiff in his evidence has clearly admitted that he has not submitted the report pertaining to the damages to the equipment like CCTV and other instrument installed in the Tin Shed. The

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documents which have been exhibited are purchase bills of various machines which do not establish that the machines have caused damages due to cracks and leakages in the Tin Shed. Since this fact is within the knowledge of the plaintiff only then the burden lies upon him to prove the said pleadings by recording cogent evidence which the plaintiff miserably failed to plead and prove. The plaintiff is unable to discharge his burden of proving this fact, even in Ex-P-20 it is mentioned, the amount of Rs. 3,86,000/- is recoverable.

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Learned trial Court has not taken into consideration, the evidence of defendants wherein he has admitted that he has received Rs. 7,00,000/- cash but he has denied rest of the amount. In fact, the trial Court has reduced Rs. 7,00,000/admitted by the defendant while passing the decree of Rs. 13,14,000/- without recording any finding that the plaintiff by cogent evidence and material on record is able to prove that he has paid the amount of Rs. 13,14,000/- in addition to Rs. 7,00,000/-. The trial Court has recorded a finding on presumption and assumption in paragraph-18 of its judgment that no prudent men will invest Rs. 15,00,000/- and utilized the Tin Shed for two years only. The trial Court also recorded a finding that the amount incurred in construction of shed will be adjusted towards rent. This finding is perverse, based on no evidence as no

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written agreement was placed on record by the plaintiff regarding contention raised by the plaintiff that he will vacate the premises within two years. Even no such material or evidence is placed on record by the plaintiff before the trial Court that he has paid the rent to record the finding that the amount which he is entitled to recover is in excess to the rent paid by him, still the decree was passed which is nothing but suffers from perversity and illegality as the plaintiff is unable to discharge his burden of proof.

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It is well settled legal position is that initial onus is always upon the plaintiff to prove the fact and if he discharges that onus and makes out a case which entitles him to a relief, then onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same. In this case nothing has been discharged by the plaintiff. The plaintiff has not proved by adducing cogent evidence on record that he has supplied the machines which were installed in the Tin Shed and same has been damaged due to poor quality of material used in the Tin Shed. The issue of burden of proof is subject matter of challenge before the Hon’ble Supreme Court in various cases, some of the cases are as under:-

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Hon'ble Supreme Court in the case of Anil Rishi vs Gurbaksh Singh ( 2006) 5 SCC 558 has held as under;-

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There is another aspect of the matter which should be borne in mind. A distinction exists between a burden of

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proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is which party is to begin. Burden of proof is used in three ways : (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later; (ii) to make that of establishing a proposition as against all counter evidence; and (iii) an indiscriminate use in which it may mean either or both of the others. The elementary rule is Section 101 is inflexible. In terms of Section 102 the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same.

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Hon'ble Supreme Court again in the case of Rangammal vs.

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Kuppuswami and another (2011) 12 SCC 220 has held as under;-

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It has been further held by the Supreme Court in the case of State of J& K vs. Hindustan Forest Company, 2006 (12) SCC 198, wherein it was held that the onus is on the plaintiff to positively establish its case on the basis of material available and it cannot rely on the weakness or absence of defence to discharge onus.

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It was still further held by this Court in the matter of Corporation of City of Bangalore vs. Zulekha Bi, 2008 that it is for the plaintiff to prove his title to the property. This ratio can clearly be made applicable to the facts of this case for it is the plaintiff who claimed title to the property which was a subject-matter of the alleged sale

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deed of 24.2.1951 for which he had sought partition against his brother and, therefore, it was clearly the plaintiff who should have first of all established his case establishing title of the property to the joint family out of which he was claiming his share. When the plaintiff himself failed to discharge the burden to prove that the sale deed which he executed in favour of his own son and nephew by selling the property of a minor of whom he claimed, Even no witness was examined in his support with regard to supply of material. The Appellate Court has considered imed to be legal guardian without permission of the court, it was clearly fit to be set aside by the High Court which the High Court as also the courts below have miserably failed to discharge.

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The onus was clearly on the plaintiff to positively establish his case on the basis of material available and could not have been allowed by the High Court to rely on the weakness or absence of defence of the defendant/appellant herein to discharge such onus. The Courts below thus have illegalily and erroenly failed not to cast this burden on Respondent 1-plaintff by clearlySection 67 in The Indian Evidence Act, 1872 misconstruing the whole cae and thus resulted into recording of finding which are wholly perverse and even against the admitted case of the parties.

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Hon'ble Supreme Court again in the case of State of Madhya Pradesh vs. Nomi Singh and another (2015) 14 SCC 450 has held in paragraph-11 as under;-

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It is settled principle of law that in respect of relief claimed by a plaintiff, he has to stand on his own legs

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by proving his case. On perusal of the impugned order passed by the High Court, this Court finds that the High Court has wrongly shifted burden of proof on the defendants. In the middle of paragraph 12, while giving its reasons to disagree with the decree passed by the courts below, the High Court has observed as under: -

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"It was respondent-defendant who has challenged the possession of plaintiff and his father on the ground of khasra entries, therefore, burden of proving the fact that allegations made by the defendant are correct, is on the defendant, in which defendant has failed. Further it has been admitted before the Court that entry of plaintiffs in the khasra record is as encroacher, but no such khasra entries have been produced by them.…"

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In the middle of paragraph 15 of the impugned decree, again the High Court observes:

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-"Further the defendant has failed to prove the possession of plaintiff and his father was that of an encroacher. Defendant has further failed to prove the khasra Nos. 1950 to 1952 to be wrong or that patta given to the plaintiffs, was only for one year,.…"

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The above observations made by the High Court, show that it has erroneously placed onus of proof of title and possession of the plaintiffs, on defendant. The High Court has completely ignored the fact that the plaintiff after losing case in the first round from trial court, got amended the plaint and took plea of adverse possession, on which matter was

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remanded to the trial court, and after hearing parties suit was again dismissed, which was upheld by the first appellate court. The above approach of the High Court is against the law laid down by this Court, and in our opinion, it erred in law in reversing the decree passed by the trial court and that of the first appellate court by shifting burden of proof on the defendant.

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Hon'ble Supreme Court in the case of Chairman Board of Trustees, Sri Ram Mandir, Jagtial Karimanagar District, Andra Praesh vs. S. Rajyalaxmi(dead) and others reported in 2019(2) SCC 338 has held in paragraph-21 as under;21-It is an established position of law that the burden to proof ownership over the suit property is on the plaintiff. (See Corporation of City of Bangalore vs. Zulekha Bai and Ors. (2008). This court in the case of Parimal vs. Veena (2011) 3SCC 545, held that:

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The provisions of Section 101 of the Evidence Act provide that the burden of proof of the facts rests on the party who substantially asserts it and not on the party who denies it. In fact, burden of proof means that a party has to prove an allegation before he is entitled to a judgment in his favour. Section 103 provides that burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any special law that the proof of that fact shall lie on any particular person. The provision

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of Section 103 amplifies the general rule of Section 101 that the burden of proff lies on the person who asserts the affirmative of the facts in issue.

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From the above stated factual and legal position, it is quite vivid

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that plaintiff is unable to prove his case still the trial Court has passed the judgment and decree in his favour which is nothing but suffers from perversity, illegality and liable to be set aside. Accordingly judgment and decree passed by the trial Court deserves to be set aside and it is set aside. Consequently, the suit filed by the plaintiff before the trial Court is dismissed. Accordingly, the appeal is allowed.

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A decree be drawn up accordingly.

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Sd/Sd/- (Rajani Dubey) (Narendra Kumar Vyas) Judge Judge

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Santosh

Ajay Kumar Agarwal v. Omprakash Agarwal

Case brief

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Ajay Kumar Agarwal v. Omprakash Agarwal

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