KANIRAM Vs. DHULILAL

JUDGEMENT

(1.) Being aggrieved by the judgment dated 9.3.2005 passed by District Judge, Rajgarh in Civil Appeal No. 23-A/04 whereby the judgment dated 31.7.2004 passed by Civil Judge Class-I, Khilchipur in civil suit No. 36-A/04 (old No. 29-A/01) whereby the suit filed by the respondent was dismissed, was decreed, the present appeal has been filed.

(2.) The appeal was admitted by this Court vide order dated 4.11.2006 on the following substantial questions of law :-

(3.) Further reliance is placed on a decision in the matter of Heirs Kantilal Purshottamdas Patel v. Dahiben Jagdish Rathore, 2003 AIR(Guj) 82 wherein in a case where the case of defendants having controverted the case of the plaintiff which the plaintiff had put forward a positive case, it could not have been negatively disproved by the defendants. It can only be positively proved by the plaintiffs. Reliance is also placed on a decision in the matter of West Ramkanli Colliery v. Bihar State Cooperative Marketing Union, 1978 AIR(Pat) 57 wherein a suit for price of coal, plaintiff alleging that price was to be paid by weight while defendant alleged payment to be by measurement and no satisfactory evidence was adduced by both the parties, it was held that it was for plaintiff to prove his claim.