z> Ap8llcar«fs Defendants Non-appiicant Plalntjff Civli Revlsiosn No.99 of 2808 1. Narad Son of Punaram Verma, aged about 52 years; 2. Rajesh Son of Narad verma, agsd about 30 years; Both residents of Viliage Matrs, Tahsll Saja, District Durg (C.G.) Versus SViannuram Son of Hirau Sahu, aged about 53 years, Resjdent of Vliiage Matra, Tahsii Saja, Djstrlct Durg (Civii Revlslon undsr Section 115 ofthe CPC) Present:- Mr.P.P.Sahu, counsel for the applicants. Nr.Ravindra Agrawal; counsel for the non-applicant. (SB: Hon'ble Mr. T.P. Stisrma, J.) ORALGi^ER (25-10-2610) 1. By this cjvli revisjon fiied undsr Sectlon 115 of the Code of Civil Procedure, 1908 (for short 'CPC'), the appllcants have chalienged the tegaiity and propriety of the judgment dated 14.3.2008 passed by the Addltlonai District Judgs (F.T.C.), Bemetara, Distrtet Durg, in Cjvii Appeai No.48/2007, affirmjng the judgment and decree dated 11.1.2007 passed by the 2nd Civjj Judge Class-lj. Bemetaa, tn Cjvi! Suit NQ.2S-B/20Q6 whereby learned 2nd CJvls Judgs Class-11 has decreed the sult for malicjous prosecutlon and has passed the decree ot damages of Rs.8950/- agalnst the present applscants. 2. Judgment is impugned on the ground that whlie dismisslng the appeai and dscreelng the sult, both the Courts beiow have fasled to exercise the jurisdiction vested on it and exceedsd the jurisdjction vested on it and, have committed ilSegailty by holding that wlthout any just asxi proper cause, the appiicants hsd iaunohed criminal case agalnst the non- applicant and thereby commltted lltegality. czlr) -2-- 3. As per case of the prpsecution, one iamannd tree was standlng between the fietds of both the parties, some branches WQTQ cut by the non- appSlcant. The appjicants have lodged the report agalnst the non- appiicant for theft of branches of tamarlnd tree. The non-appllcant was prosecuted for the ofence of theft and fsnaily, he is acqultted of the charge on the ground that the prosecution has falled to prove the charge agalnst the non-appiicant. Thereafter, sult for maiicious prosecution was filed on behaif ofthe non-appiicant. ASer providlng opportunlty of hearlng to the partles; the triai Court has decreed the suit, same has been afflrmed by the iower appeilate Court. 4. I hsve heard iearnsd counsel for the parties, perused th©judgmeRt impugnsd, judgment snd decree of the triaS Court and records of the Courts belovv. 5. Learned counsei for the appiicants subm'sts that as per evjdence In criminal case and civsl case, both the parties have clalmsd ownershlp over tamarind tree and have adduced evsdencs, but in order to prove the ownershlp over the property, the non-applicant was under obtigatlon to prove ths fact that the same was standlng on hls iand and not standlng on the iand of the appiicants, but the non-appiicant has not adduced sny evldence to this effect. in the absence of any evidence about excSuslve ownershlp over the tree, no presumptlon would be posslble that the applscants have maSafideSy prosecuted the non-applicant without just and proper cause. 6. On the other hand, Searned counsel for the non-appitoant opposes the revision and submlts that evidence adduced on behaSf of the non- appiteant Is sufficlent to prove that tree js standlng on the jand of the non- appiicant and not on the Sand of ths appllcants, therefore, the triaS Court has rightiy decreed the suit for matjcious prosecutlon, even othen'vise without just and proper cause; the appjlcants have lodged the report and hsve maliciousiy prosecuted the non-appiicant. 7. As per evidence adduced on behaif ofthe appllcants In criminai case and the Ron-appllcant In civii case, both the partles have clalmed ownershlp. Tamarind tree standing on the med situated between the iands or fieids of both the parties. No conclusive evldence has been adduced on behaif of any of the partles to prove the ownershsp. In of malscious ^[ 7-? ~2>- prosecutjon, the plajntify/non-applicant Is under obligation to prove the fact that the prosecution was without just and proper cause and in the present case, he was requjred to prove that he is owner of the tree and the land where tree js standlng. The non-applicant has not applled for demarcation of the iand or has not examined any revenue offlcsr In supportofhlscSaim. 8. in ths absence of any demarcation or other evidence, it Is dlfflcuit to hoid that tree is standing on the iand of the non-applicant or OR the land of the appiscants. In these circumsiances, decree for maljclous prosecution was not just and proper: 9. Deflnitely, by decreeing the suit and dismlsssng the appess, both the Courts beiow have fai!ed to exercise the jurssdlction vested on It and exceeded the jurisdiction vested on it, and thereby cornmltted ilSegality. 10. Consequentiy, the cjvi! revision is aiiowed. Judgment and decree of both the Courts bsiow are hereby sst aside. Sult filed on behalf of the non-appilcant is hereby dlsmlssed. The parties sha!i bear thelr own cost. 11. Advocate fee as per scheduie. Sd/- T.P. Sharma Judge ^ ^