1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.902 OF 2009 Maroti s/o Tukaram Dhongade, age: 62 years, Occ: Pensioner, R/o Parwa, Tq. & Dist.Parbhani, at present Freedom Fighter Colony, Parbhani. Appellant Versus 1 Dnyanoba s/o Digambar Bhalerao, age: 27 years, Occ: Agriculture & Barber, R/o Parwa, Tq. & Dist.Parbhani. 2 Gram Panchayat, Village Parwa, through Sarpanch, Village Parwa, Tal. & Dist.Parbhani. Respondents Mr.S.P.Chapalgaonkar, advocate for the appellant. Mr.M.P.Kale, advocate for Respondents. CORAM: R.M.BORDE, J. DATE : 04 th February, 2010. ORAL JUDGMENT: 1 This is an appeal by original plaintiff raising exception to the judgment and decree dated 01.10.2009, passed by District Judge-2, Parbhani in Regular Civil Appeal No.88/2008, thereby reversing judgment and decree passed by trial Court in Regular Civil Suit No.184/2007 decided on 22.08.2008. 2 Appellant herein / original plaintiff has instituted suit claiming decree of perpetual and mandatory injunction against defendant no.1 Dnyanoba Bhalerao and Village Panchayat Parwa. According to plaintiff, he 2 is owner and possessor of house property bearing No.305, situate at village Parwa, Taluka and District Parbhani. According to plaintiff, defendant no.1 has encroached upon open space in front of house of plaintiff, which is situate on the northern side to the extent of 20 x 20 feet. It is alleged that defendant no.1 has stacked fire wood and waste material in the open space thereby access of the plaintiff to road, which passes through open space, has been obstructed. 3 Defendant no.1 presented written statement and controverted contentions raised by plaintiff. It is the contention of defendant no.1 that plaintiff has no legal right in respect of user of open space. According to defendant no.1, open space, which is the subject matter of dispute, situate towards eastern side of plaintiff’s property, in fact belongs to defendant no.1 and same is not owned by Village Panchayat. According to him, since the time of of his forefathers, he is enjoying house property along with open space situate in front of plaintiff’s house. Defendant has further contended that plaintiff has access to the road from eastern side and by stacking material in open space, access of plaintiff to the road is not blocked. Defendant No.1 denied to have committed encroachment over disputed property. Defendant No.2 – Village Panchayat did not present written statement and suit was proceeded ex parte against defendant no.2. 4 The trial Court, on the basis of pleadings raised by parties framed two issues: (1) Whether defendant No.1 proves that an open space in front of the house of plaintiff belongs to him? (2) Whether the plaintiff is entitled for injunction as sought for? 3 The trial Court recorded finding on the first issue in negative, whereas, held that plaintiff has made out a case for grant of injunction and as such decreed the suit. 5 Aggrieved defendant no.1 approached first appellate Court by preferring Regular Civil Appeal No.88/2008, which came to be heard and disposed of by District Judge-2, Parbhani, who was pleased to allow same by judgment and decree dated 01.10.2009. 6 I have perused the judgment delivered by first appellate Court. The first appellate Court has framed a point for determination, as to: Whether the learned trial Court has committed error by placing burden on defendant no.1 to prove that he is the owner of suit property? and said point is answered in affirmative by the first appellate Court. The first appellate Court has also considered the question in relation to right of easement allegedly claimed by plaintiff. 7 On perusal of the judgment passed by first appellate Court, the appellant has formulated following substantial questions of law, those are recorded in paragraphs I & II: (I) Whether the First Appellate Court has jurisdiction to cast burden on original plaintiff to prove certain fact and to proceed to dispose of the appeal without giving the parties any opportunity to adduce evidence whether oral or documentary and to address the said change in burden of proof? 4 (II) Whether the provisions of Indian Easement Act, 1882 are at all applicable in the present case? 8 Admit. By consent of learned Counsel for respective parties, appeal is taken up for final hearing forthwith. 9 I have heard arguments advanced by learned Counsel for respective parties. Shri M.P.Kale, learned Counsel appearing for Respondents, has fairly admitted that Point No.1 framed by first appellate Court is improper and has also admitted that first appellate Court has committed an error in law in placing burden on plaintiff in respect of proving title of defendant no.1 over the suit property. 10 The first appellate Court, strangely enough, on consideration of provisions of Indian Evidence Act relating to burden of proof, has recorded in the judgment that the trial Court has committed an error in framing Issue No.1 and shifting burden on defendant no.1 in respect of proving his title in relation to suit open space. It is to be noted that Sections 101, 102 and 110 of Indian Evidence Act are relevant for purposes of consideration in this appeal. Section 101 provides that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Section 102 provides that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. Section 110 provides that when the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the 5 owner. 11 In the instant matter, so far as ownership of plaintiff in respect of his own property is concerned i.e. house property, question of proving his title does not arise. So far as disputed open space, which is situate on the northern side of plaintiff’s house is concerned, it is the contention of plaintiff that said property belongs to Village Panchayat. Defendant no.1, however, claims that suit property belongs to him. In view of provisions of Section 110 of the Evidence Act, the burden is on defendant no.1 to prove that disputed plot/open space really belongs to him. It is also to be taken note of that Defendant No.2 - Village Panchayat has not appeared and resisted suit. The claim of plaintiff is that property belongs to Village Panchayat and defendant no.1 has encroached upon said open space. In order to establish that defendant no.1 is not encroacher, defendant no.1 has to establish that in fact he is owner of disputed plot. Naturally, therefore, burden would shift on defendant no.1 to establish his case in relation to disputed open plot. The first appellate Court has erred in framing Point No.1 while dealing with the appeal. 12 Another aspect of the matter is that the first appellate Court has considered alleged claim of right of easement of plaintiff. On perusal of plaint, it is evident that plaintiff has nowhere asserted his easementary right or access by way of easement. The discussion in that regard contained in the judgment of first appellate Court from paragraph 15 onwards is irrelevant. The first appellate Court is required to decide the appeal considering case put up by parties. The judgment is required to be pronounced on consideration of the material placed before the Court and on consideration of issues raised in the matter. The issue in respect of easementary right is 6 irrelevant. The judgment of the first appellate Court is perverse and is not sustainable. It is rather surprising as to how first appellate Court has considered the matter in such strikingly incorrect manner. In these circumstances, therefore, there is no option but to remit the matter back to the first appellate Court for reconsideration of the issues raised by the parties. It would be appropriate for Principal District Judge, Parbhani, to allot the appeal, on remand, to some other judicial officer. 11 In the result, for the reasons stated above, judgment and decree dated 01.10.2009, passed by District Judge-2, Parbhani in Regular Civil Appeal No.88/2008, is quashed and set aside and matter is remitted back to the first appellate Court for reconsideration and rendering decision in accordance with provisions of law. Appeal is allowed to above extent. However, in the facts and circumstances of this case, there shall be no order as to costs. (R.M.BORDE) JUDGE ******* adb/sa90209