ABDUL MAJID KHAN Vs. TUKARAM

JUDGEMENT

(1.) THE facts of this case are sufficiently clear from the lower Courts' judgments. The plaintiffs-respondents obtained a decree for possession of the site in dispute, together with the removal of the building erected by the defendant-appellant thereon. On appeal by the present appellant to the Court of the Additional District Judge, Nagpur, the decree of the Subordinate Judge, was upheld and the defendant has now come up here on second appeal.

(2.) THE first contention, which has been pressed on behalf of the defendant-appellant, is that the lower appellate Court has wrongly placed the onus of proof on the present appellant. I have been referred in this connexion to the fact that the Additional District Judge first of all, dealt with the evidence of the defendant in detail and then proceeded to discuss in the latter part of his judgment, the evidence for the plaintiffs, thus, it is alleged, wrongly placing the burden of proof on the appellant, and it is also suggested that the tenor of paras. 5 to 9 of the appellate judgment suggests the same thing. I am, however, unable to accept this contention. As I read the lower appellate Court's judgment, it does not seem to me that there was any mistake as to where the burden of proof lay, although it may be admitted that the judgment would have been in a better form had the evidence of the plaintiffs been discussed in the first instance. It is perfectly obvious, on the discussion of the evidence by the Additional District Judge, that even fully accepting the position that the initial onus of proof rested on the plaintiffs, they had fully discharged it and that the evidence produced on behalf of the defendant was almost negligible in quality as compared with that for the plaintiffs. I do not think, therefore, that this is a case where any question of misplacing of the burden of proof and of the present appellant having been injured thereby does arise.

(3.) IT has next been urged that the lower appellate Court has failed to discuss the question of limitation, which was undoubtedly raised, although in somewhat vague and general terms in paras. 3, 4, and 6 of the defendant's written statement and was again reiterated in ground 6 of the petition of appeal in the Court of the Additional District Judge. This question seems to me quite immaterial now in view of the fact that there is on record a definite finding of fact that Rodba only occupied the site with the plaintiff's permission, and a similar re-mark applies to Zibal. No question of limitation therefore, in the defendant appellant's favour could possibly arise on the perfectly legitimate findings of fact arrived at by the two lower Courts.