KHANGAR SINGH ALIAS KHURRAN SINGH Vs. KITAB SINGH

JUDGEMENT

(1.) :-

(2.) THIS is a plaintiff's second appeal in a suit for injunction prohibiting the defendants from preventing the plaintiff from constructing his dehliz and further prohibiting him from discharing the water of the parnalas and the mori of house No. 24 on the rasta land and from tethering his cattle on any part or portion thereof. A further relief for demolition of a Kotha, varandah and chabutara which was said to have been erected on a rasta on plot no. 25 during the pendency of the suit was added by an amendment of the plaint. The suit had undergone some vicissitudes. By judgment dated 9-12-1966, it was decreed for demolition of the construction D-1 to X 1 and X 1 and X 2 as shown in the map paper No. 47-A2, and also for an injunction restraining the defendants from interfering with the plaintiff's construction of his dehliz on the land in suit. On appeal, by a judgment dated 17-2-1968, the trial court's judgment dated 9-12-1966 was set aside and the suit was remanded for a fresh trial. After remand, the suit was partly decreed by judgment dated 17-3-1969. The construction which had been ordered to be demolished by the earlier judgment was again ordered to be demolished but this time it was described as the construction on plot no. 25 shown by blue colour in the commissioner's map 86-A2. That map now forms part of the decree of the lower appellate court. The defendants appealed to the District Court from the said decree. There was a cross-objection by the plaintiff. The plaintiff's cross-objection was dismissed but the defendants' appeal was allowed and the decree for demolition of the construction on plot No. 25 was set aside. Instead, a decree was passed restraining the defendants from tying their cattle and putting their pegs on the rasta between the plaintiff's house and the constructions raised by the defendants as they then existed.

(3.) HAVING heard the learned counsel for the appellant, I find that this approach of the lower appellate court is against law. The evidence of partition papers is not such as could be brushed aside in the manner in which the lower appellate court chose to do. The partition papers clearly establish that the plot No. 25 was a rasta. There was the plaintiff's oral evidence, not of one witness, but of three witnesses, which established that the defendants had built constructions on the rasta. The defendants' evidence was found to be unreliable by the trial court and the plaintiff's evidence was believed by it. There was no such improbability about the plaintiff's case or his witnesses as to have authorised the lower appellate court to reverse the trial court's rinding on this point. See Sarju Parshad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh, AIR 1951 SC 120. It is a civil case in which the finding have to be arrived at on a balance of the probabilities on the appraisal of the evidence on the record, and the observation of the lower appellate court quoted above that the plaintiff has to stand on his own legs etc., is not justified in law. As has been well said burden of proof looses much of its importance when evidence has been led by both the parties. The case has to be judged on consideration of the entire evidence on the record and on a preponderance of probabilities.