1 2025:CGHC:36533 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR FA No. 160 of 2005  Abhishek Singh Aged About 45 Years s/o. Purkshottam Singh, r/io. Village Akaltara, Tahsil and District Janjgir-Cchampa (CG). ... Appellant/plaintiff versus  Bhuwanlal Sidar, s/o. SukhramSidar, Caste Gond, r/o. Village Parsahi, Nala, District Janjgir-Champa (CG). ... Respondent/defendant For appellant : Mr. Atul Kesharwani, Advocate. For Respondent : Mr. H.V. Sharma, Advocate. (Hon’ble Mr. Justice Narendra Kumar Vyas) Order on Board 28/07/2025 1. The plaintiff has filed this first appeal under Section 96 of the Code of Civil Procedure against the judgment and decree dated 30-4-2005 passed by the learned Additional District Judge, Janjgir-Champa in Civil Suit No. 07-B/2003 by which the learned trial Court has dismissed the suit filed by the plaintiff for recovery of loan amount of Rs.68,000/- and interest Rs.35,180/- total Rs.1,03,180/- from the defendant. 2. The parties have been described as per their description given in the Civil Suit No. 07-B/2003 before the trial Court. 2 3. The brief facts reflected from the record are that the plaintiff has filed a civil suit for recovery of money mainly contending that he is doing agricultural work and money lending business. The defendant who is in Government service has sought a loan of Rs.68,000/- from the plaintiff on 20-10-2000 for his personal use. He has also agreed to pay 18% interest per annum. The defendant also assured him that after taking withdrawal of part final from GPF he shall pay the loan amount. Accordingly, an affidavit on stamp paper was executed before the Notary Vasudev Rathore and he has also given three cheques of current account No 20/66, but no amount has been given. It is also the case of the plaintiff that to avoid payment of amount he has subsequently transferred the account from Gramin Bank to State Bank. It is also the case of the plaintiff that due to non-payment of amount the plaintiff filed a suit for recovery of amount. 4. The defendant has filed a written statement admitting the fact that the plaintiff is doing business of money lending and the rest of the averments made by the plaintiff, particularly receipt of amount from the plaintiff has been specifically denied. He has also contended that the plaintiff has fraudulently executed the affidavit on 20-10-2000, but no amount has been paid. He has also denied that he has given any cheque of current account and has prayed for dismissal of the suit. It has also been contended that the suit is also barred by limitation. 5. On the pleadings of the parties learned trial Court has framed as many as six issues. The issue No. 2 is relevant which is extracted as under: “2. Whether the defendant obtained a cash loan of Rs.68,000/- on 20-10-2000 and executed an 3 affidavit before the Notary on a stamp of Rs.50/-?”. 6. The plaintiff to substantiate his case has examined Vasudev Rathore (PW/1), plaintiff himself (PW/2) and Ganesh Ram (PW/3). PW/1 Notary Vasudev in cross examination has clearly admitted that before him no transaction of money has been taken place between defendant Bhuvanlal and plaintiff Abhishek Singh. Ganesh Ram (PW/3) has also admitted in his cross examination that before filing of the affidavit the plaintiff told him to put his signature in Ex.P/1, thereafter, he will give the money at Akaltara, they have gone to Akalatara and thereafter before him no money was given to the defendant by the plaintiff. He has also admitted that the defendant demanded the money from plaintiff, but the plaintiff has not given the money and thereafter he went to his house. 7. PW/2 Plaintiff Abhishek Singh in examination-in-chief has reiterated the averments made in the plaint and he was extensively cross examined by the defendant and in the cross examination he has admitted that no one has put signature in Ex.P/1 before him. He has also admitted that in the notary affidavit there was no mention of the fact that Bhuavanlal has taken Rs.68,000/- from the plaintiff. He has also admitted that at the time of giving money to the defendant, he has not taken any receipt. He has also admitted that payment of rate of interest has been settled before Ganesh Ram Porte on 20.10.2000. 8. The defendant has not examined any witness and the learned trial Court vide impugned judgment and decree dated 30-4-2005 has dismissed the suit. Being aggrieved with the judgment and decree, the plaintiff has filed the instant first appeal. 4 9. Learned counsel for the appellant would submit that the finding recorded by the learned trial Court is perverse and contrary to the record as once the affidavit has already been executed, therefore, the contents made therein are deemed to have been proved. Thus, he would further submit that the defendant has not raised any question about the correctness of the contents of the affidavit, as such there was sufficient material to record a finding by the learned trial Court that the money has been given and would pray for setting aside the impugned judgment and decree passed by the trial Court. 10. Per contra, learned counsel for the respondent opposing the aforesaid submission would submit that PW/1 Vasudev, Notary in para 3 of his cross examination has categorically stated that money was not given before him. Similarly, PW/3 Ganesh Ram, has also stated in the cross examination that money has not been given to the defendant and the plaintiff told him that the money will be given to him at Akaltara but before him no money was given and thereafter he has gone to his house. Thus, he would submit that there is sufficient material to record a finding that no money transaction has been taken place between the plaintiff and the defendant. He would further submit that the learned trial Court after appreciating the evidence, material on record has rightly dismissed the appeal and would pray for dismissal of the appeal. 11. I have heard learned counsel for the parties and perused the record of the Court below with utmost satisfaction. 12. From the aforesaid submissions, it is quite vivid that the evidence adduced before the learned trial Court would clearly demonstrate that 5 the burden of proof lies upon the plaintiff to prove the averments made in the plaint and it is equally well settled position of law that the exhibition of documents does not establish that the contents of the affidavit have been proved, as such it is for the plaintiff to prove the contents made in the documents. The issue of burden of proof is always subject matter of consideration before the Hon’ble Supreme Court. The Hon’ble Supreme Court in case of State of Madhya Pradesh vs. Nomi Singh and another (2015) 14 SCC 450 has considered the issue of burden of proof in paragraph 11 and 12 as under. “11. It is settled principle of law that in respect of relief claimed by a plaintiff, he has to stand on his own legs by proving his case. On perusal of the impugned order passed by the High Court, this Court finds that the High Court has wrongly shifted burden of proof on the defendants. In the middle of paragraph 12, while giving its reasons to disagree with the decree passed by the courts below, the High Court has observed as under: - "It was respondent-defendant who has challenged the possession of plaintiff and his father on the ground of khasra entries, therefore, burden of proving the fact that allegations made by the defendant are correct, is on the defendant, in which defendant has failed. Further it has been admitted before the Court that entry of plaintiffs in the khasra record is as encroacher, but no such khasra entries have been produced by them.…" In the middle of paragraph 15 of the impugned decree, again the High Court observes: - "Further the defendant has failed to prove the possession of plaintiff and his father was that of an encroacher. Defendant has further failed to prove the khasra Nos. 1950 to 1952 to be wrong or that patta given to the plaintiffs, was only for one year,. …" 12. The above observations made by the High Court, show that it has erroneously placed onus of proof of title and possession of the plaintiffs, on defendant. The High Court has completely ignored the fact that 6 the plaintiff after losing case in the first round from trial court, got amended the plaint and took plea of adverse possession, on which matter was remanded to the trial court, and after hearing parties suit was again dismissed, which was upheld by the first appellate court. The above approach of the High Court is against the law laid down by this Court, and in our opinion, it erred in law in reversing the decree passed by the trial court and that of the first appellate court by shifting burden of proof on the defendant.” 13. Again the Hon’ble Supreme Court in the case of Chairman Board of Trustees, Sri Ram Mandir, Jagtial Karimnagar, District, Andhra Pradesh vs. S. Rajyalaxmi (dead) and others, reported in 2019(2) SCC 338 has held in paragraph 21 as under: “21-It is an established position of law that the burden to proof ownership over the suit property is on the plaintiff. (See Corporation of City of Bangalore vs. Zulekha Bai and Ors. (2008). This court in the case of Parimal vs. Veena (2011) 3SCC 545, held that: 19. The provisions of Section 101 of the Evidence Act provide that the burden of proof of the facts rests on the party who substantially asserts it and not on the party who denies it. In fact, burden of proof means that a party has to prove an allegation before he is entitled to a judgment in his favour. Section 103 provides that burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any special law that the proof of that fact shall lie on any particular person. The provision of Section 103 amplifies the general rule of Section 101 that the burden of proof lies on the person who asserts the affirmative of the facts in issue. 14. In the present case, the plaintiff was unable to substantiate his contentions by recording sufficient material as the (PW/1) Notary Vasudev and (PW/3) Ganesh Ram in cross examination have admitted the fact that no money transaction has been taken place before them, despite this evidence the plaintiff has not examined any 7 person before whom he has given the money before execution of agreement. The person before whom if any amount has been given is the vital witness who can directly prove the averments made in the plaint. Therefore, the learned trial Court has rightly drawn an adverse inference against the plaintiff for not examining the importance witness. 15. The learned trial Court considering all the facts, evidence, material on record and law laid down by the Hon’ble Supreme Court has rightly dismissed the suit. The finding recorded by the learned trial Court with regard to the fact that the plaintiff is unable to plead and prove that the money has been given to the defendant, is just and proper which does not suffer from perversity or illegality warranting interference by this Court. 16. Accordingly, the instant first appeal being devoid of merit is liable to be dismissed and it is hereby dismissed. 17. Accordingly, a decree be drawn up. Sd/- (Narendra Kumar Vyas) JUDGE Raju RAVVA SATYANARAYANA RAJU Digitally signed by RAVVA SATYANARAYANA RAJU Date: 2025.10.14 15:02:28 +0530