Original Suit Number: 208/1984
Amar Nath and Others Vs. Vishwanath and Others
(Presiding Officer- Ashutosh Tiwari , Uttar Pradesh Judicial Service)
J.O. Code: UP2199
After oral examinations of the parties U/O-10 R-2 of CPC and on the basis of the averments of parties in their pleadings this court framed following issues:
i. Whether plaintiffs are owner and in the possession of the suit property?
ii. Whether suit has been undervalued?
iii. Whether court fees paid is insufficient?
iv. Whether plaintiff ’s suit is barred by estoppel and acquiescence?
v. Whether plaintiff ’s suit is barred by Sections 34, 38 and 41 of the Specific Relief Act, 1963?
vi. Whether plaintiff ’s suit is barred by Section 49 of the U.P. Consolidation Of Holdings, Act, 1953 Act?
vii. Whether plaintiff is barred under Order 7 Rule 3 of CPC?
viii. Whether plaintiff ’s suit is bad due to non-joinder of necessary party?
ix. Whether plaintiff ’s suit is bad due to misjoinder of the parties?
x. Whether the plaintiffs are entitle to the relief as claimed by them?
Development (steps)
Issue Nos. 2 and 3 have been treated as preliminary issue and the same has been disposed off by the Predecessor Court
negatively in favour of the plaintiffs and against the defendants, hence now this court is concerned only with the undisposed issues.
Both plaintiffs and the defendants have filed various documentary evidences and have got several persons to be examined on their account. Due to non-appearance this court closed opportunity of all defendants except of defendant no:9 vide its order dated 12/02/2020. After conclusion of the trial, plaintiffs and defendant no:9 submitted their final arguments.
Heard the arguments of learned counsels of the plaintiffs and defendant no:9 submitted and perused relevant materials placed on record.
It is well settled legal position of general burden of proof provided under section 101 of the Indian Evidence Act, 1872, that one, who has brought his lis before the court of justice, the primary burden of proof lies upon him. Said burden of proof is permanent and never shifting in nature. The plaintiff must first prove his cause of action and it is only then the onus shifts upon the defendant. In civil cases the standard of proof is preponderance of probability. Thus all that the court is required to test the evidences of both the parties on the touchstone of probability of truthfulness in particular version.
Testing the plaintiff’s evidences on the touchstone of preponderance of probability, it can be said that plaintiffs have
miserably failed to discharge their primary burden of proof. This court finds present suit as total sham litigation.
After above said analysis of the evidences and arguments advanced by counsels of the parties, this court is inclined to record
its finding on remainder issues as follows:
i. That plaintiffs are neither the owner nor entitle to the possession of the suit property. Hence issue no:1 is decided against the plaintiffs and in favour of the defendants.
ii. That since onus to prove that the plaintiff suit is barred by estopple and acquiescence was upon the defendants which they
failed to discharge, hence it can be said that the plaintiff ’s suit is not barred by estopple and acquiescence, hence issue No. 4 is decided in favour of the plaintiff and against the defendant.
iii. That onus to prove that, the plaintiff ’s suit is bad due to nonjoinder of necessary party or misjoinder of parties, was upon
the defendants which they failed to discharge, hence it can be said that the suit is not bad due to non-joinder of necessary party or due misjoinder of parties. Hence issue Nos. 8 and 9 stands decided in favour of the plaintiffs and against the defendants.
iv. That, since the plaintiffs have failed to establish their cause of action, hence it can be said that plaintiffs are not entitled to
any relief from this court.
Plaintiffs suit is hereby dismissed for want merit. No order as to cost. Case file be consigned to the record room as per law.
Today this judgement was pronounced by me in the open court and the same bears my signature.
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