1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.2673 OF 2009 Yaser Ahmed Nahdi (Chause) - APPELLANT VERSUS Kazi Abdul Wajid s/o Abdul Gaffar and Anr. - RESPONDENTS ***** Mr.GD Sheikh,Advocate for Appellant; Mr.SV Gangapurwala, Advocate for Respondent no.1. ----- CORAM : K.U.CHANDIWAL, J. DATE : 20th January, 2010. PER COURT : 1) Heard. The matter is finally heard at admission stage. Necessary papers, even with annexures are tendered by the Counsel for the appellant. 2) The appellant feels aggrieved by the judgment and decree recorded by learned 5th Joint Civil Judge, Senior Division, Aurangabad in 2 Special Civil Suit No.14/2007 whereby the suit of plaintiff was decreed, directing the present appellant to vacate/to remove himself from the suit property within a month from the date of the judgment. 3) The challenge to the order/judgment basically revolves to – a) the possession purportedly handed over by MHADA to the plaintiff could not have been done so, as prior thereto, already defendant no.2 was in possession; b) There is cloud to the title of the plaintiff; and c) the appellant/defendant did not adduce any evidence, being handicapped to do so for his ill- health, associated with such medical evidence. The possession of the appellant is flowing from original owner of the property, left over after acquisition by MHADA for which there is a City Survey record in the name of original owner. The appellant has come in possession of the property based on agreement of sale and enjoying the same. It was contended that the appellant had leased 3 the property to original defendant no.1 and he has vacated/delivered the possession to the appellant in December 2005 after expiry of tenancy period. Consequently, it is pleaded that original defendant no.1 had no concern with the suit property. The Counsel submits that in the fact situation the matter needs to be remanded back to the learned Judge, giving opportunity to the appellant to adduce evidence and establish his contentions and also to controvert the contentions of original plaintiff. 4) The Counsel representing the the respondent no.1 – Kazi Abdul Wajid s/o Abdul Gaffar/original plaintiff, submits that there were 22 applications made by the appellant herein time to time, seeking adjournments/accommodation, which the learned Judge has on occasions lastly considered; on occasions granted with costs. One of such application below Exh.91 displays that the request of appellant was allowed on payment of costs of Rs.5,000/- to PW-1 to PW-3 and also 4 to pay Witness Bhatta before 27th April, 2009. It is a matter of record, costs also is not complied with by the appellant. Earlier there were costs awarded, however, no lesson could be taken by the appellant. 5) Basically, there is no pleading from the appellant that his possession evolves and flows from original owner or that he has an agreement of sale to retain the same. No efforts are made by the appellant to examine his so-called vendor/owner of the property. No Toach map of the property, showing any demarcation, distinct from the property acquired by MHADA, is projected. 6) The contention that the burden of proof in terms of Section 101 of Evidence Act rests with the Respondent no.1, needs no quarrel However, since the plaintiff (Respondent no.1) has adduced evidence as to how he staked claim for possession of the property, based on payment 5 coupled with a receipt issued by MHADA of handing over possession of the property to the plaintiff, on charges, it was incumbent upon the defendant (appellant) to have established his so-called lawful possession. The onus naturally shifted to the defendant/appellant, which the appellant has miserably failed to discharge. 7) It is not in controversy that the property, forming part of Survey Nos. 59 and 60, was subject of acquisition by MHADA, it got possession thereof. Since there is an Award in favour of MHADA and MHADA has become owner of the property, the presumption of the genuineness of the Award and MHADA’s ownership rests and need not be doubted. The Counsel could not point out as to how a tiny piece of 30 X 50 ft. could separately be carved out from the property of MHADA to stake claim through the original owner and disposing to the appellant herein based on so-called agreement of sale. 6 8) The criticism to the letter issued by MHADA concerning handing over the property to the plaintiff on 21.4.2004, will have to be read in context to the record. Even on 21.4.2004, the appellant herein had no valid document to evince claim to the property. Even if it is presumed, that plaintiff has got a subsequent document, though the appellant was in possession, the appellant legally cannot continue to remain in possession of the property as the plaintiff has a valid document/authority from the competent owner, i.e. MHADA No efforts in past were made by the appellant to controvert the contention of MHADA as to its ownership. 9) Acquittal of the appellant in Criminal prosecution by itself will not be a parameter to hold that the appellant’s possession over the property is legal. The prosecution was in terms of Section 3 of the Prevention of Damage to Public Property Act, 1984 and also 447 of the Indian Penal Code. The distinction between a 7 criminal prosecution and civil case is necessarily to be seen. The plaintiff could not be a party to said prosecution initiated by MHADA against the appellant and naturally nothing could be brought on record about the plaintiff’s coming up as owner based on document from MHADA. The appellant legally cannot coin and press to read evidence of PW-2 – Gawali adduced in criminal prosecution. 10) The repeated requests that the appellant was prevented by circumstances from appearing/prosecuting the matter, has been negatived. The remissness,laxity demonstrated by the defendant/appellant is writ-large. The Court could not be expected to be a moot spectator in the matter of such nature, as optimum opportunities to address the Court by leading cogent evidence or to cross-examine the witnesses of the plaintiff was given. However, it has not been taken benefit and purposeful attempt to drag the proceeding was successfully effected by the 8 appellant and now he sheds tears, seeking remand of the matter, without such prayer in the appeal memo. The Court cannot come to the rescue of the appellant, where the appellant himself is totally at fault. 11) The learned Counsel placed reliance to the Judgment in the matter of Kashinath s/o Ramkrishna Chopade Vs. Purushottam Tulshiram Tekade & Ors. - 2005 (4) All MR 519, which was in relation to Section 83 of the Evidence Act. Brother Judge observed “ onus of proving that a map is accurate lies on the party, who produced it. No such situation creeps herein as the matter of Kashinath was resting on the point of encroachment and the map of Cadestral Surveyor was sought to be acted upon, without such Cadestral Surveyor being examined. 12) Learned Counsel also placed reliance to the Judgment of the Apex Court in the matter of Seth Ramdayal Jat Vs. Laxmi Prasad ( AIR 2009 SC 9 2463. The Hon’ble Lordships observed – Judgment of criminal court not admissible in civil suit. However, admission made by a party in previous criminal proceedings is admissible in subsequent civil proceedings. It was a case where a civil suit was filed against the appellant therein for recovery of certain item of jewelry allegedly pledged with the appellant for the purposes of obtaining loan. On the premise that the appellant had violated the provisions of the Madhya Pradesh Money Lenders Act, 1934, in relation to the aforementioned loan, a criminal proceeding was initiated against him. In the said criminal case, he admitted his guilt. A fine was imposed on him. The admission of the appellant was recorded in writing. While he was deposing in the suit, he was confronted with the question as to whether he had admitted his guilt and pleaded guilty of the charges framed. He did so. The appellant in the said case, having accepted that he had made an admission in the criminal case, the same was admissible in the proceedings of 10 civil suit. 13) Now, turning to the facts of the present case, the evidence of PW-2 Gawali will not come to the assistance of the appellant herein. The admission is not fatal to the contentions as agitated by the plaintiff in the proceedings. 14) Taking survey of merits of entire matter, coupled with the evidence, I find the appeal lacks merit, it is dismissed with CA. No costs. 15) Six months’ time given to the appellant herein to vacate the premises. He will give regular undertaking before this Court, stating not to create third party interest; lien, part with possession to anybody else. The undertaking to be furnished within fifteen days, failure to give the undertaking, it follows that the order of the learned Judge to remain in force, taking recourse of possession. The appellant shall 11 deliver possession in the terms indicated above after the said period, without any demur and excuse. (K.U.CHANDIWAL) JUDGE bdv/fa2673.09