CSA/280/2004 of DEENANATH Vs BASHIRO and ORS on 20 December 2005

JUDGMENT

Deenanath.

vs.

Bashiro and another.

S.B.CIVIL SECOND APPEAL NO.280/2004UNDER SECTION 100 CPC AGAINST THEJUDGMENT AND DECREE DATED 18.5.2004PASSED BY SHRI KRISHAN JOSHI,ADDITIONAL DISTRICT JUDGE NO.2,BIKANER IN APPEAL DECREE NO.71/2002.

DATE OF JUDGMENT

::: 20.12.2005

PRESENT

HON'BLE MR. PRAKASH TATIA, J.

Mr. BK Vyas, for the appellant.

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BY THE COURT:

Heard learned counsel for the appellant.

The plaintiff/appellant is aggrieved against thejudgment and decree passed by the trial court dated25.10.2002 and dismissal of his appeal by the appellatecourt vide judgment and decree dated 18.5.2004.

Brief facts of the case are that the plaintiff earlierfiled a suit for injunction only against the defendantswhich was decreed by the trial court but the firstappellate court dismissed the suit of the plaintiffs afterholding that the plaintiff failed to prove the possessionover the property in dispute. Without challenging thejudgment and decree of the first appellate court, theplaintiff filed the present suit for possession of the suitproperty on the basis of title i.e. Patta which was issuedin favour of the plaintiff. The plaintiff did not producethe patta in the present suit and, therefore, both thecourts below concurrently found that the plaintiff failedto prove the title of the property and, therefore, is notentitled for decree of possession against the defendants.

According to the learned counsel for the appellant, theplaintiff produced the patta in the earlier suit and issueabout title was decided in favour of the plaintiffs but thesuit was dismissed on account of the plaintiff not being inpossession. According to learned counsel for the appellant,the appellant produced copy of judgment given in theearlier suit and also produced his patta before theCommissioner who was appointed to inspect the site and theCommissioner produced copy of patta before the trial court.

Learned counsel for the appellant also submitted thatthe appellant has submitted an application under Order 41Rule 27 CPC before this Court seeking permission to produceadditional evidence and by this, the appellant wants toproduce the patta of the property in dispute.

I have considered the submissions of learned counselfor the appellant and perused the record.

It will be worthwhile to mention here that the earliersuit bears no.303/1988 and that was decided by the trialcourt on 19.3.1996. The appeal against the said judgmentand decree was preferred by the defendants and the appealwas decided by the appellate court on 5.12.1997. Theplaintiff was well aware that his suit was dismissed on theground that he failed to prove his possession and he soughtonly relief of injunction in his earlier suit no.303/1988.The consequence of dismissal of the suit might haveprompted the plaintiff to file the present suit andapparently it is clear that this suit could have been filedonly on the basis of claim of title of the plaintiff. Theplaintiff for the reasons best known to him did not producethe patta before the trial court knowing it well that hehas to prove his title over the property. Not only this,even after the decision of the trial court, the plaintiffdid not produce the patta before the first appellate courtand face the natural consequences of dismissal of hisappeal by upholding the issue decided by the trial courtabout lack of title of the plaintiff.

In the application which has been filed before thisCourt also, the plaintiff failed to give any reason why theplaintiff did not produce patta before the trial court oreven before the first appellate court and the plaintiff hasfiled the application under Order 41 Rule 27 CPC withoutdisclosing what to say of sufficient cause not a cause for

namesake. In these circumstances, there appears to be noreason to allow the plaintiff to reopen the proceedings ofthe suit which are terminated by the concurrent findingsrecorded by the two courts below. Apart from it, it will beworthwhile to mention here that even before this Courtalso, the plaintiff failed to produce the original pattabut has produced the photostat copy of patta which isalleged to have been issued in the year 1958.

I do not find any reason to allow the appellant toproduce the evidence at this belated stage in a case wherethe plaintiff's earlier suit was dismissed by the courtbelow as the plaintiff failed to prove his possession andthat the plaintiff has lost the possession long back muchbefore he filed the earlier suit in the year 1988. Hence,the application of the appellant under Order 41 Rule 27 CPCis dismissed.

In view of the fact that the plaintiff failed to provehis title over the property, the courts below were right indismissing the suit of the plaintiff/appellant.

In view of the above, I do not find any merit in theappeal. No substantial question of law is involved in thisappeal, therefore, this appeal deserves to be dismissed,hence, dismissed.

S.Phophaliya

(PRAKASH TATIA), J.