IN THE HJGH COURT OF JODICATURE AT BILASPUR (CHHATTISGARH) F. A. NoJE^ /200< SINGLE BENCH '>£' APPELLANT ^EFENDANT \ o^ ^^>. ^y ,> ,..^:^>"" Chandrashekhar Sahu aged bout 37 years, S/o Shri Jethuram Sahu, R/o Village Bendrl. Tah. Abhanpur.Dlstt. Raipur (C.G.) y VERSUS RESPONDENT /PLAINTIFF j> ,Smt. Bhagwati Devi aged About 65 years Wd/o ^jmaj Chand Agrawal, R/o 65 Vivekanandnagar Raipur, Tah & Dlstt. Raipur (C.G.) FIRST APPEAL U/S. 96 OF C.P.C APPEALXGAINST THE JUDGMENT AND DECREE DATED 21.04.2005 PASSED IN CIVIL SU1T N0. 42^A/2003 BYYrH ADDITIONAL DISTRICT JUDGE RAIPUR . (C.G.l i'fw H2GH COURT OF CHHATTISGARH, BILASPUR First Appeal No. 135/2005 Chao.drashekhar Saliu Versus Bhagwati Devi Besieh: Hosi?ble Bhri Dilip Raosaheb Deshmiik3a,J. Post Ibr dated :^ ^l 07 Sd/- Dilip Raosaheb Deshmukh Judge X^.U 1.2007. w l^ .c^ C3J h ^ ^ HIGH COURT OF CHHATTISGARH. BILASPUR Siagle Besach: Hoa^ble Shri Dilip Raosafaeb Deshmukh,J. First Appeal No. 133/2005 Chandrashekhar Sahu Versus Bhagwati Devi Shri Rataii Pusty, counsel for flie appellaat^ SIiri B.P. Shaaua, counsel for respondent JUDGMENT (Delivered this day 2.'? January, 2007) Beiag aggrieved by fhe judgmeut aad decree dated 21.4.2005 passed by flie Fiftli Additional District Judge, Raipur m Civil Suit No. 42-A/2003 awai'diag damages quantified at Rs.70,000/- to fhe plaiatiff along with mterest @ 6% per aiinum from tiie date ofjudgment till recoveiy, fhe defendant has preferred this First Appeal. 2, Admittedly, fhe plamtiir owns agricultural laad Khasra No. 106/7 aad 120/11 total 5.176 hectai'es m Village Bendri, Patwad Halka No. 135, TahsU Abhaapur, District Raipur (heremaller referred to as tiie suit laad) aad had sown pacldy thereia iii the year 1999-2000. 3. The plauitiffhad pleaded that on 25.11.1999 whUe her son was conductmg hgavestmg operations ou the suit laad, fhe defendaat at'ter preventmg him from doing so on the ground that tlie land was leased to hiia by Pavaii Kuinar Agrawal, forcibly cut 200 bags ofpaddy crop costiag Rs. 70,000/- (i.e. @ Rs.300/- per bag) which stood ou fhe suit laiid. The plaintiff lodged F.I.R. vide ^ Ex. P.-2 m Police Station Abhaapur on 27.11.1999. On fhese preiaises, tlie plahitill claioied damages of Rs. 76,900/- aiid iiiterest @ Rs. 1.5% per month. 4. The defendaiit spect&cally denied having cut flie paddy crops which stood on tlie suit laiid. He pleaded tliat he had taken laad from. one Pavaa Kumar Agrawal 011 lease aiid had sown paddy aad perfonsied harvestin.g operations fliereon and a false repoxl was lodged by the plaintiff in poUce statioii Abhaiipur. It was also pleaded that due to straiued relations witli Pavan. Ki.miar Agrawal, tlie plaititilT had falsely implicated the appeUaiit. 5, The plaiiitiff proved tlie General pow-er of attortiey Ex. P-1 executed in favour of her son Shreesh Chazidra Agrawal (PW-1) aiid fhe report Ex. P-2 lodged at police statiou, Abhaiipur 011 27.11.1999 and also exaiained Shreesh Chaiidra Agrawal (PW-1) aad witness Hemlal (PW-2), Patwari Kaiihai Smgh (PW-3) aad Punu Ram (PW-4). The defeudaat exainined himself aiid witoaess Pavan Kumar Agrawal (DW-2). 6. The leanied lower Court while appreciatiiig evidence adduced by fhe parties observed fliat fhe defendant did not specificany deny eiflier iri the writteu stateiiient or iii his evidence tliat he had cut the crops from tfie suit laiid on 25.11,1999, Oii fhis ground, tlie leanied lower Court caoie to tlie conclusion iii pai'a 12 tliat for waiit of specilic denial, fhe fact that fhe defendant hacl cut ttie paddy crops which stood on flie suit laad on 25.11.1999 was aa admitted tact. It also held fhat tlie plaintilT had by examiiiiag Pabvari Kanliai Siagh,(PW-3) aiid procluciag Anawaii Report Ex. P-7 had proved fhat 200 bags of paddy was grown 011 fhe suit laad which fact was also wholly unrebutted. It fiirtlier V.. ^s held at tlie end of pai'a 13 tiiat tlie evidence lecl by fhe plaiiitii'f undisputedly proved that tlie plamtilThad sufiercd loss of200 bags of paddy which was grown on fhe suit lands in the year 1999- 2000. Alfhough Palwaii Kaiihai Singh (PW-3) had deposed fhat in 1999-2000 approxixaately 180 bags of paddy crop ixiust liave yielded ii'om tlie suit laiid yet tlie leamed Lower Court awaiTled damage for 200 bags paddy @ Rs.350/~ per bag and furfher awarded interest @ Rs.l.5% per monfh. on Rs.70,000/- from tlie date ofjudgment tiil recoveiy whlle reiteratmg ia para 15 tliat for waiit of specific denial by tlie defendant m his testimony, it was also aii admitted fact tliat tlie clefendaiit had ia fhe rear 1999- 2000 cut fhe paddy crop of 200 bags from tlie suit Imid. 7. Shri Ratan Pusty, leaiiied counsel for the. appellaiit has contended fhat tlie Imdmgs recorded by tlie leanied Lower Court were perverse and contraiy to flie pleadmgs aad evidence on record, The testimony oftlie plaintiirio. para 4 that fhe defeudaat had cut fhe paddy crop for two days was not coiToborated by report Ex. P-2. In the report Ex. P-2 lodged m poUce station Abhaiipur on 27,11.1999 tiie plaiiitiff had mentioned fhat the Station House Officer of Police Station Abhaopur Shri Saiitosh Dubey was present on tlie suit. lao.ds on 25,11.1999 and hacl under his supervision got tiie entire crop cut. However, no evidence was adduced by the plaintiff to tliat effect. It was argued tliat in pai'a 2 of fhe report Ex. P-2, tliere was no mentiou tliat tiie defeudaiit Chaiidra Sekhar Saliu had cut tlie paclcly crop, It was also contended tliat Pat^vari Kaiihai Singh (PW-3) had clearly admitted in cross-exaiiiiiiatiou tliiat iii Anawaii Report Ex, P-7, tlie name of fhe plaiiititT or Pavan Kumar Agrawal or the f27 4 L defendaat was not mentioned aad fhat he had no personal knowledge as to the yield ofpaddy crop in 1999-2000 froin fhe suit land. It was also contended that Shreesh Chandra Agrawal (PW-1) had in para 9 of his testioiony failed to give any accoiint of flie agricultural operatious conducted toy him on tiie suit laiid ia the year 1999-2000. Since the defendant had specilically denied plaiat allegations ia para 2 of the written stateinent and had spectlically deposed ta pai'a 4 of his testiisiony tliat he did not perfoiin aay agricultural operations on Khasra No, 106/7 aiid 120/11, the iaference drawn by tlie leamed lower Court fhat for waat of specilic denial, fhe pleaduigs iii plaiiit were aclinitted by the defendaiit was wholly contraiy to law. 8. On tlie otlier hand, Shri B.P. Sharma, leanied couusel for the respondent/plaiatiff placed reliaiice on Scmt^sh Hes^ari Vs. I^irushottmn Tiwari; 2000 (3) SCC 179 while coutending that since flie leaaied lower Court had dealt with fhe evidence led by fhe parties at leugth aiid had given cogent reasons for graiiting a decree m favour of the plaiiitiff tlie Appenate Court should not ititerfere wifli the fiiiding of fact anived at by tlie lower Coart. It was also ai'gued tliat civil cases m'e decided ou preponderance of probabiMties aiid unless it was shown tliat the view taken by tlie leanied lower court was perverse, it sliould prevail aiid ought uot to be ititerfered in Fii'st Appeal. 9, Havio.g considered the rival subinissions, I have pei-used the record ofCivil Suit No. 42-A/2003 with utinost circumspection. 10. At fhe veiy outset it must be said fliat. fhe leaniecl lower Court proceeded on aii en'oneous assumption tliat fhe defendaiit had not specilicaJly denied the allegation of having cut tlie crops on the suit laads on 25.11. 1999. A perusal of para 2 of ttie written stateraent clearly shows tliat the defendaiit had specifically denied fhe pleadiiigs oftlie plaintiirio. that regard, Smiilarly, iii para 4 of his testimouy Uie defendaat testt&ed fh.at lie did not perform aay agncultural operations on tlie suit land. In tliis view ofthe matter, tlie veiy foundation ou whicli fhe leanied lower Court proceeded to accept the evidence of fhe plahitiffs witoiiesses as a gospel ti-uth is demoMshed. In view of tlie spect&c denial of the aUegations to. tlie plain.t by the defendant in. para 2 of the writtexi statenieiit, tlie conclusion drawn by tlie leariied lower Court under Order 8 Rule 5(1) of C.P.C. tliat Uie allegation of cutting paddy crop of fhe siiit land by tlie defendaat was ao. admitted fact was wholly eiToneous ao.cl contrary to tlie law ofpleadiags. 11. The plaiatiff'has proved the report Ex. P-2 lodged by her aiid Shreesh Chaiiclra Agrawal (PW~1) iii PoUce Station, Abhaiipur. It does not inentiou in aiiy maauer fhat the defendaiit had cut the paddy crops wliich stood on fhe suit laads ou 25, 11.1999. On flie coutraiy, it nientious tliat one Saiitosh Dubey, Station House Officer, PoMce Statiou Abhaapur had under his personal szipervision got the eiitii-e paddy crops of tiie suit laiids cut on 25.11.1999. Neither Shreesh Chandra Agrawal (PW-1) nor his witaesses Hemlal (PW-2) or Punu Ram (PW-4) have stated al3out flie presence of Saiitosh Dubey, S.H.O., Police Statiou Abhaiipiir on fhe suit laiid on 25,11.1999 which completely falsi&ed fhe report Ex. P-2. 12. The report Ex. P-2 further aiakes a clear allegation that the crops were cut ouly on 25,11.1999. However, Shreesh Chandra Agrawal PW-1 stated ia para 4 fhat the crops which stood on the 6 ^l] suit lands were cut withia a period of two days. This part of ttie testmiony is also not con'oborated by plaintiirs witoriess Punu Ram (PW-4) who stated that tlie crop was cut only ou one day. His testiinouy fhat the paddy crop of the suit laiid which was ai'ound 13 acres tn. area were cut by six labourers iii one day does not iaspire confidence beiag aii impossibility. Altliough Punu Ram (PW-4) stated that tlie defendant was accoiupaiiied by 6-7 persons yet tlie uaaie of aiiy of such persons was not divulged. Similaiiy, alth.ough Shreesh Chaiidra Agrawal (PW-1) had stated io. para 3 tliat on the date of occuiTeuce he was hawesting fhe crops which stood on the suit laacls yet Punu Ram (PW-4) has stated that Shreesh Chaadra Agrawal was alone at Uie place of occurrence. It is aiso peitinent to note that Hemlal (PW-2) who was present 011 flie suit laiid on the date of occurrence also did not state tliat fhe detendaiit had cut the crops which stood over the siiit laad. AU that he deposed was tiliat tiie defendaiit ardved on fhe suit land aiid asked fhe plauitilT not to cut the crops siace he hacl taken the laiids froia Pavaii Kuniar Agrawal. In view of tiie fact fhat the aUegations ia tiie report Ex. P-2 ai'e not substantiated by the evidence led by the plamtiIT it cannot be raled out that the plamtiff had lodged a false report agaia.st tlie defendant. 13. So fai' as the quaiitum of the damages awarded by ttie learaed lower Court is concemed, it has placed heavy reUaace on fhe testimony of Patwaii Kaahai Siiigh (PW-3). However, the conclusion aiTived at by the leamied lower Court was whoUy erroneous because it excluded from consideration the testimony of Patwari Kaiihai Shigh in. cross-exainination whereiii he had admitted fh.at he had uo persoual knowledge about the yield of w paddy crops on the suit laiid m the year 1999-2000 and fhe Auawari Report Ex. P-7 did not inake aiiy niention oftlie suit laiids. 14. Shreesh Chaiidra Agrawal (PW-1) stated in para 3, tliat there was aii assault on him at the time of fhe occurrence biit did not mentiou as to who assaulted him. No such fact is mentioned m his report Ex. P-2 also. No otlier witoess has con'oborated him. Slireesh Chaiidra Agrawal also failed to give aiiy account ia cross- examination about tlie agricultural operations conducted by him on the suit. land iti the year 1999-2000. 15, There is no evidence ou record as to how maiiy stacks of paddy were cut aad iii what manner were they reinoved from the suit laiid aiid by whom? The testimony of Slii'eesh Chaiidra Agrawal (PW--1) does not show aiiywhere tliat tlie defendant had employed aiiy laboiirer for cuttmg paddy crops which stood on the suit land. It caiinot fhus be ruled out tfaat tlie plamtiir lodged a false report agaiast the defendant. The evidence led by tlie plaiatiff is not only untrastwortiiy but is highly contradictoxy with the report Ex, P-2. In a suit of ttie present natiire, the plaintilTwas required to estabUsh by leadtag cogent evidence, tlie exact uuinber of paddy stacks removed by tlie defendaixt from his field and tfie niaD.ner in which huge amount of paddy stacks which woiild yield aboiit 200 bags of rice could be removed from flie suit laads. The leanied lower Court upon a wholly erroueoiis appreciatiou of fhe evidence and 011 completely wrong assumption fhat fhere was no specilic denial either in tlie writteu statenient or ia the evidence of tlie defendaat came to a wholly erroneous conclusion tb.at the plaintiff had succeeded ia provin.g its case, | !;ijjl..^ ^: -t4;ii:!i;/?i;iiiigiiii '^!rH:--^rit:''^iK?!'!1.;II :i:l; :,.^ , \ ^' r ^&D' 16. It is also pertiOLent to n^ tite defendant had ia para 4 specificalty denied haviag perfbrmed aay agncultaral 1 . ;: ; '," ' • .' .. . ' . ; operations on fhe Suit laiids but iio que defendant ia cn>ss-sxaimnatk)n fhM he had^^^^^l^ i' yieldiag 200 bags ctf rice froiii fhe suit land. Thus, as a iiiatter of fact, the testimoiiiy of lOie defendai^ !':'.' •.':.'; . ''. .• • ' • ' 'i. unrebutted. It is jalso notewort^ 1 Pavan Agrawal (DW-2) ia cross-exaimnattoit fhat fhe defexidaat had cutthe paddy 0rops whK'hstood on fhe suitlaiid. The lean^ lower Court com^letely lost s^ht of the above fact while ! .. ^ !; appreciatmg the evidence of tlieabove parties. 17. Havmg thus consMered fhe^^^^^e^ fhe parties ia its eiitirety and witli utoiost ciFcuiaspection, I am. pf fhe considered view that fhe findiiagsarrived at by fhe leamed Trial Court and fhe J. . .•.. . ,-. .'. ^ . • • • • . . • ; rcasons assigned therefor were completety erroneous, There was xio conscious applteatton of nund by fhe leamed tower Court to the evidence adducedj by fhe parties aiid it also did not take ixito consMeration tiie jimprobability of the aUegations levelled agaiast fhe defendant, It also lost sight of fhe fact fhat fhe defeiidairf evMence was wholfy unrebutted, The mference fliat fhere^^^^^ spectBc denial eithier m the written st^ ia fhe testimony of the defendant abojiit the allegattons of cutfcing fhe paddy crop from fhe suit land by tlhe defendaiit w erroneous. TIie cross- eKomiiiB^on of PQ^Q^^ escaped fte torial jiidge's notice and it also overipoked fbje balaace of impxxAabilily w^ credibility of fhe evidence led by the plaTntifF Tl^ quanLfi^ damagps fixed by fhe leari d lov^ Court wa^ ateo wIxoUy arbte '^il®^i:;l®P^l^j^!J^?;§!^lltK@^l^ w, Kvr aud not suppoiled by aay reliable oral evidence, I am flierefore, of the considered view fhat the judgment aiid decree passed by tiie leanied lower Court is whoUy erroueous aiid conti'ary to evidence oii record aad tlie law of pleadings aiid is tlierefore, liable to be set aside, 18. In the result, fhis appeal is allowed. The judgment and decree passed m Civil Suit No. 42-A/2003 by tlie Pitlh Additional Distiict Judge, Raipur is set aside. The suit for recovery of daiuages is dismissed with costs. The respoudent/plamtiir shall beai' tlie entii'e cost of the suit, as also of this appeal, Pleadex'?s fee is quaiitilled at Rs.500/- tf certilied. A decree be drawn accordiagly. | Dilip Raosaheb Deshmukh Judge