Deoki Nandan, J. - (1.) :-
(2.) THIS is a plaintiff's second appeal in a suit for injunction prohibiting the defendants from preventing the plaintiff from constructing his dehliz and further prohibiting him from discharing the water of the parnalas and the mori of house No. 24 on the rasta land and from tethering his cattle on any part or portion thereof. A further relief for demolition of a Kotha, varandah and chabutara which was said to have been erected on a rasta on plot no. 25 during the pendency of the suit was added by an amendment of the plaint. The suit had undergone some vicissitudes. By judgment dated 9-12-1966, it was decreed for demolition of the construction D-1 to X 1 and X 1 and X 2 as shown in the map paper No. 47-A2, and also for an injunction restraining the defendants from interfering with the plaintiff's construction of his dehliz on the land in suit. On appeal, by a judgment dated 17-2-1968, the trial court's judgment dated 9-12-1966 was set aside and the suit was remanded for a fresh trial. After remand, the suit was partly decreed by judgment dated 17-3-1969. The construction which had been ordered to be demolished by the earlier judgment was again ordered to be demolished but this time it was described as the construction on plot no. 25 shown by blue colour in the commissioner's map 86-A2. That map now forms part of the decree of the lower appellate court. The defendants appealed to the District Court from the said decree. There was a cross-objection by the plaintiff. The plaintiff's cross-objection was dismissed but the defendants' appeal was allowed and the decree for demolition of the construction on plot No. 25 was set aside. Instead, a decree was passed restraining the defendants from tying their cattle and putting their pegs on the rasta between the plaintiff's house and the constructions raised by the defendants as they then existed. In this Second Appeal by the plaintiff, the only question which survives for consideration now, is, whether the plaintiff is entitled to have the construction on the rasta shown by blue colour in the map 86-A2, which forms part of the lower appellate court's decree, should be ordered to be demolished. I may here mention that the shading in blue colour on the original map 86-A2 which forms part of the lower appellate court's decree has become faint and a better copy of that man, which clearly shows the shading in blue colour is available as a part of the certified copy of the trial court's decree, based on the judgment dated 17-3-1969, which was filed with the memorandum of appeal in the lower appellate court and bears paper No. 7C-2. The lower appellate court has proceeded on the basis that the partition map was a weak kind of evidence and was not enough to establish the existence of the rasta and that the plaintiff ought to have led better evidence for establishing the existence of the rasta or for establishing his right to use that land as a passage. The plaintiff did lead oral evidence,, After disbelieving that oral evidence, the lower appellate court proceeded to observe that "the learned Munsif has remarked that the D.Ws. are not reliable witnesses, but the plaintiff has to stand on his own legs in proving his case and cannot take benefit of the laches of the opposite-parties in proving their case unless they amount to admission of the plaintiff's claim."
(3.) HAVING heard the learned counsel for the appellant, I find that this approach of the lower appellate court is against law. The evidence of partition papers is not such as could be brushed aside in the manner in which the lower appellate court chose to do. The partition papers clearly establish that the plot No. 25 was a rasta. There was the plaintiff's oral evidence, not of one witness, but of three witnesses, which established that the defendants had built constructions on the rasta. The defendants' evidence was found to be unreliable by the trial court and the plaintiff's evidence was believed by it. There was no such improbability about the plaintiff's case or his witnesses as to have authorised the lower appellate court to reverse the trial court's rinding on this point. See Sarju Parshad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh, AIR 1951 SC 120. It is a civil case in which the finding have to be arrived at on a balance of the probabilities on the appraisal of the evidence on the record, and the observation of the lower appellate court quoted above that the plaintiff has to stand on his own legs etc., is not justified in law. As has been well said burden of proof looses much of its importance when evidence has been led by both the parties. The case has to be judged on consideration of the entire evidence on the record and on a preponderance of probabilities. Learned counsel for the appellant urged that the lower appellate court was right in not relying on Batwara papers and cited before me certain cases in that context.;