S.No. 1 Regular List HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR CFA 166/2015 GH. MOHI UD DIN SHAH …Petitioner/ Appellant(s) Through: Mr. Rizwan Ul Zaman, Advocate V/s MOHD JABBAR KOKA …Respondent(s) Through: Mr.P.S. Ahmad, Advocate with Mr. Adil Rashid Bhat, Advocate CORAM: HON’BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE. ORDER 04.03.2025 1. Appellant herein has thrown challenge to the judgment and decree dated 108.06.2014 (for short the “impugned decree & judgement”) passed by the Court of learned Principal District Judge, Anantnag (for short “the Trial Court”) in case titled as “Mohammad Jabar Koka Vs. Ghulam Mohi Ud Din Shah”. 2. The factual matrix in brief is that the plaintiff /respondent herein filed a suit for recovery of an amount of Rs. 3.10 lacs along with interest @ 18% and costs from the defendant/appellant herein on the premise that he, the plaintiff/respondent herein, is a contractor/businessman dealing with willow and other timber, sold and supplied to the defendant/appellant herein 5000 feet of willow and Bren logs @ Rs. 62 per square feet for an amount of Rs. 3.50 lacs in the year 2001 without executing any agreement thereof though a kacha bill for realisation of the payment in favour of the plaintiff/respondent herein by the defendant/appellant herein for the timber sold and delivered came to be prepared and submitted to the defendant upon a promise made by the defendant/appellant herein that he would make payments for the said timber, however, he, the defendant/appellant herein did not pay the same and that upon the failure of the defendant/appellant herein to liquidate the outstanding amount of Rs. 3.50 lacs, the defendant/appellant herein in presence of the respectable members of the locality paid an amount of Rs. 40,000/- and agreed to pay the rest of the amount by the end of May, 2022 and thereafter upon the failure of the defendant/appellant herein in lieu thereof to pay the remaining amount, the defendant/appellant herein executed a special power of attorney in respect of his vehicle owned by him on 08.01.2002 in favour of the plaintiff/respondent herein and that the defendant/appellant herein subsequently lodged a case against the plaintiff/ respondent herein alleging theft of the vehicle in question in Police Station Bijbehara and that thereater on account of continuous failure of the defendant/appellant herein to pay to the plaintiff/respondent herein, the outstanding amount qua the supply of willow timber and the Bren logs, the plaintiff/respondent herein was compelled to institute the suit for recovery of the amount. 3. 3. The trial court after entertaining the suit, summoned the defendant/appellant herein who after entering appearance filed written statement to the suit and opposed the suit inter alia on the premise that he does not owe any money to the plaintiff/respondent herein and also did not execute any document including the power of attorney relied upon by the plaintiff/respondent herein and that the vehicle in question owned by him was in fact stolen by the plaintiff/respondent which, however, was got retrieved by him through intervention of police upon registration of a case against the plaintiff/ respondent herein. 4. The trial court upon the pleadings of the parties framed the following issues. I. Whether the plaintiff has sold and delivered 5000 sq.ft, of willow and Bren logs @ Rs. 62/- per sq. ft, to the defendant? OPP II. Whether on verbal agreement defendant handed over his vehicle amount to Rs. 3.10 lacs in lieu of timber supplied? OPP III. Whether the defendant did not pay the remaining amount of Rs. 40,000/- till date inspite of promise?OPP IV. Whether the defendant by his fraudulent act got the case registered and vehicle seized by the police concerned? OPP V. Whether this court has no jurisdiction to try the suit, if so, how? OPD VI. Whether the plaintiff has served a notice upon the defendant to pay the amount? OPP VII. Whether the defendant has executed a power of attorney with regard to vehicle (truck) bearing registration No. JK01/7736 in favour of the plaintiff? OPP VIII. Relief. 5. The plaintiff/respondent herein in order to prove issues i, ii, iii, iv, vi & vii produced witnesses namely Gh. Mohi UD Din Koka, Gh. Mohammad Koka, Abdul Razak Bhat and Ali Mohammad Lone besides appearing himself as his own witness, whereas the defendant/appellant herein in order to prove issue No. v examined witnesses namely Gh. Hassan Bhat, Abdul Rashid Bhat, Manzoor Ahmad Najar, Gh. Mohammad Reshi and Bashir Ahmad Bhathanji besides appearing as his own witness. 6. The trial court after conclusion of the trial and after hearing the appearing counsel for the parties in terms of the impugned judgement and decree, decreed the suit in favour of the plaintiff/respondent herein. 7. The defendant/appellant herein has challenged the impugned judgement and decree in the instant appeal on the following grounds. a) That the impugned judgement/decree is perverse as the same is neither supported by pleadings nor by evidence, as such the same is liable to be setaside. b) That the impugned judgment is confusing, incorrect, ambiguous, vague and has not been passed on conclusions supported by facts and evidence. On this count also the impugned judgment and decree are liable to be setaside. c) That the trial court, below while deciding the issue Nos. 1 & 2 has acted in violation of all the principles relating to appreciation of evidence. It is worthwhile to mention here that the entire judgment rests upon the findings returned in issue Nos. 1 & 2. By a bare perusal of the judgment impugned, it is more than clear that while deciding the said issue i.e issue No. 1 & 2 the trial court below has been more than convinced regarding the failure of the plaintiff/respondent to prove these issues in the major part of the discussion made while deciding these two important issues. The trial court has rightly observed while deciding these two issues that the plaintiff/respondent has failed to prove the supply of 5000 cubic feet of timber @ 62/ per feet and the documents which have been exhibited as .EXPW-.1 (Annexur- A) attached with the plaint, nowhere prove the supply of timber by the plaintiff/respondent in favour of the appellant/defendant. It has been further rightly pointed out in the discussion regarding these two issues i,e issue NO's 1 and 2 that the plaintiff/ respondent has not examined the author of Annexure-A' which is relied upon by the plaintiff/respondent to prove the supply of timber in favour of the defendant/appellant, Further more it has been rightly observed that the Power of attorney allegedly executed by the defendant/appellant with respect to the vehicle bearing registration No, 7736/JKO1A, nowhere mentions as to whether he alleged sale of vehicle was related at all to the alleged supply of timber by the plaintiff/respondent to the defendant/appellant. The aforementioned convincing facts have not been considered and relied upon by the trial court while deciding the above mentioned important issues i,e issue t0's 1 & 2. It does not stand to reason as to whether the trial court has accepted the shakey, unreliable and uninspiring oral evidence of the plaintiff/ respondent and his witnesses and discarded the conclusive evidence which goes against the plaintiff/respondent while deciding the issue N0s 1 and 2. In his view of the matter also, the impugned Judgment and decree are liable to be set-aside. d)/-. That the trial court is a court of fact and a court of evidence. The plaintiff has to prove his case by way of evidence and the evidence has to be sufficient in material particulars to support a decree for recovery of money. The plaintiff/respondent has not produced any documentary evidence in support of his claim, nor any receipt with respect to the supply of timber executed by the appellant/ defendant, has been produced. Everything has been pleaded without any basis and no material evidence has been produced by the plaintiff/respondent to prove the pleadings made in the plaint. On this count also the impugned judgment and decree are liable to be set aside and the present appeal merits to be allowed. e)/ That the plaintiff/respondent has tried to prove that the timber has been received by the defendant/appellant by producing a document/ bill allegedly issued by Bilal Sports, however it has not been proved before the trial court as to whether Bilal Sports has any connection with the defendant/appellant, which also renders the case of the plaintiff/respondent totally doubt full and not proved. On this count also the present appeal merits to be allowed and the impugned judgment/decree are liable to be set-aside. f)/- That much reliance has been placed by the plaintiff/respondent on the alleged admission purportedly made by the defendant/appellant regarding the indebtedness to the plaintiff/ respondent before the respectable of the locality (Baradari), but none of the respectable who had been present in the alleged Baradari, has been examined by the respondent. The important links in the evidence of the plaintiff/respondent, are miss, which also renders the impugned judgment and decree , liable to be set aside and hence the present appeal merits to be allowed. g)/- That the plaintiff/respondent has not proved the author of Annexure"A' which is alleged by the plaintiff/respondent to be a document authored by the driver of the truck who has delivered the alleged timber to the appellant/defendant. The plaintiff/respondent has relied upon this document to prove the all important fact of supplying of timber to the appellant/defendant, but neither the author of the said document has been examined, nor any explanation in this behalf has been tendered during the trial for non-examination of such an important witness. On this count also the resent appeal merits to be allowed and the impugned judgment and decree are liable to be set- aside. h)/- That the plaintiffs/respondents evidence has been deficient in material particulars, whereas the defendant/appellant by producing many witnesses, has been able to prove his defense • All the witnesses produced by the defendant/appellant have supported the case of the defendant/appellant, but unfortunately the trial court has relied upon the ambiguous and doubt full evidence lead by the plaintiff/respondent and the cogent and clear evidence lead by the defendant/appellant, has been brushed aside without any reason and justification. On this count also the present appeal merits to be allowed and the impugned judgment/decree are liable to be set-aside. i)/- That the impugned judgment/decree is not sustainable in the eyes of law as the same has been passed in blatant violation of established principles of law regarding the appreciation of evidence and against the most important principle of preponderance of probability. The plaintiff/ respondent has lead self destructive evidence which instead of proving the case of the plaintiff/ respondent, has destroyed the same. On this count also the present appeal merits to be allowed and the impugned judgment/decree are liable to be set-aside. j)/- That the court below has failed to appreciate the serious contradictions in the case of the plaintiff/respondents. The plaintiff/ respondent claimed to have supplied Bren and willow timber to the appellant/defendant, whereas Annexure "A" relied upon by the plaintiff/respondent mentioned that the timber was Bren and Popular. Further more annexure-B " which is a Bill, issued by Bilal sports Industries, has corrections which makes it altogether disputed and untrustworthy. The serious contradictions in the plaintiffs case are sufficient to dismiss the plaintiffs/respondents case as being vaxacious and falicious. On this count also the present appeal merits to be allowed and the impugned Judgment/Decree are liable to be set aside. k)/- That all other legal grounds will be taken at the time of arguments by leave of this court. Heard learned counsel for the parties and perused the record. 8. Before proceeding to advert to the issues raised in the instant appeal, a brief account of the evidence produced by the parties before the trial court would be necessary hereunder; 9. Perusal of the record available on the file would reveal that insofar as issue no. i and ii are concerned, in terms whereof onus to prove was on the plaintiff that he had sold and delivered 5000 square feet of willow and Bren logs @ Rs. 62 per square feet to the defendant/appellant herein, and that the defendant/ appellant herein in lieu of the outstanding amount handed over his vehicle for an amount of Rs. 3.10 lacs to the plaintiff/respondent herein, the plaintiff/respondent herein in his statement has deposed that he being a businessman dealing in timber had sold and delivered timber to the extent of 5000 sq. feet to the defendant/appellant herein @ Rs. 62 per sq. feet amounting to Rs. 3.50 lacs through his driver and had obtained a receipt from the defendant/appellant herein annexed with the plaint and that upon continuous demand made by him to the defendant/appellant herein for payment of the amount, qua the supply of timber, the defendant/appellant herein failed to pay the same whereupon negotiations were held through the intervention of Baradri and it was resolved that the defendant/appellant herein would sell his vehicle to the plaintiff/respondent herein for an amount of Rs. 3.10 lacs and in this connection, a document was prepared and the same was also placed on the file, however, after delivering the vehicle to the plaintiff/respondent herein, the defendant/appellant herein got the said vehicle seized through the intervention of police and that the defendant/appellant herein did not pay the outstanding amount to the plaintiff/respondent herein. It is significant to note here that the plaintiff while appearing as his own witness has also deposed that and he obtained a receipt from the defendant in regard to sale of timber from the defendant being available on the file and marked as EXPW-1, and that upon the failure of the defendant to liquidate the said amount, a Baradari was held and it came to be resolved that the defendant will sell his vehicle to the plaintiff for an amount of Rs. 3.10 lacs and a document was prepared being on record of the suit and marked as EXPW-1/2 and that the vehicle in question was subsequently seized by the police at the instance of the defendant. In the cross examination by the counsel for the defendant/appellant herein the plaintiff/respondent herein has stated that he has been doing timber business for the last 12 to 13 years and that he used to purchase timber from various Zamindars and that he would maintain the account of the timber personally. Gh. Mohi UD Din Koka witness of the plaintiff/respondent herein has also deposed in the witness box that the plaintiff and the defendant were doing the business of timber and that the plaintiff sold and delivered timber to defendant/appellant herein in the year 2001 without specifying the quantity of the timber, stating further that upon settlement of the accounts between the parties, an amount of Rs. 3.10 lacs remained outstanding against the defendant/appellant herein, and that on account of the said settlement, the defendant/appellant herein agreed to deliver his vehicle to the plaintiff on one hand and on the other the defendant/appellant herein got the said vehicle seized through the intervention of police. In his cross examination the said witness has stood by his statement made in the examination in chief insofar as supply of timber claimed to have been supplied by the plaintiff/respondent herein to the defendant/appellant herein, is concerned as also the outstanding amount thereof to the tune of Rs. 3.10 lacs after the settlement arrived at between the parties. Gh. Mohammad Koka another witness of the plaintiff/respondent herein has also stated that in the witness box before the trial court that the plaintiff supplied 5000 sq ft of timber to the defendant/appellant herein @ Rs. 62 per sq. ft for an amount of Rs. 3.50 lacs while stating further that he sent the timber to the defendant in a truck, however, the defendant did not make any payment in lieu thereof and instead sold his truck later on to the plaintiff for an amount of Rs. 3.10 lacs out of which Rs. 40,000/- were outstanding against the plaintiff which were to be paid to the defendant within six months by the plaintiff and the paper work was also done, having stated further that however the truck in question subsequently came to be seized by the police. In the cross examination, the said witness has also stood by his statement made in the examination in chief. Abdul Razak Bhat another witness of the plaintiff has stated during the course of trial in the suit that he knows the parties and that plaintiff delivered timber to the defendant to the extent of 5000 sq ft @ Rs. 62 per sq. ft. against an amount of Rs. 3.50 lacs and that after settlement of accounts the defendant did not pay the said amount to the plaintiff despite the demands made by the plaintiff and instead the defendant sold his vehicle to the plaintiff regarding which a document was prepared and he signed the said document. In the cross examination the said witness has also stood by the statement made in examination in chief. Ali Mohammad Lone another witness of the plaintiff has almost made a similar statement as has been made by the above referred witnesses qua the sale and supply of 5000 sq ft by the plaintiff to the defendant @ Rs. 62 per sq ft amounting to Rs. 3.50 lacs and also upon settlement between the parties, the defendant sold his vehicle to the plaintiff for an amount of Rs. 3.10 lacs and that the said vehicle was subsequently seized by the police at the instance of the defendant. 10. Perusal of the record would also reveal that the defendant while appearing as his own witness before the trial court has stated that he does not know the plaintiff and had no business dealings with him and that he does not own a machine or any bandsaw or any industry under the name of “Bilal Sports” and that he never purchased any timber from the plaintiff and that vehicle bearing No. 7736-JK01A belonging to him was stolen from his house in the month of December 2001 and was seized thereafter from the house of the plaintiff and that said vehicle was never sold by him to the plaintiff and no document in this regard was executed by him with the plaintiff, including the power of attorney and that he had not gone to any court or petition writer for preparing any documents in respect of the vehicle in question and that the said vehicle came to be released by the court in his favour. In the cross examination the defendant has stated that it is true that the name of his son is Bilal Ahmad, but there is no karkhana in the name of Bilal Sports or else a bandsaw, while stating further that he is doing labour work as well as agriculture work and has four kanals of land and in the year 2001 he has been doing the agriculture/labour work and that he does not know the plaintiff and the plaintiff had stolen his truck and that he does not know anything about the document exhibited as EXPW-1/2 shown to him and that his elder son used to ply the truck and that when the truck was seized he did not involve the Baradari in the matter. Gh. Hassan Bhat witnesses of the defendant/applicant herein who has stated that he knows the defendant and his sons who are labourers and that they do not own any machine or karkhana and that the defendant has a vehicle which he did not sell to any person or to the plaintiff, and that the vehicle however was stolen and was later recovered by police station Malapora. In the cross examination the said witness has reiterated that the defendant is a labourer and has two kanals of landed property and had purchased a truck on loan with cost of Rs. 3-4 lacs and that there was no dispute regarding the vehicle which was stolen. Abdul Rashid Bhat another witnesses of the defendant/applicant herein has also deposed before the trial court that he does not know the plaintiff and that he was plying the vehicle of the defendant for three months and was even plying it when the same was stolen from the courtyard of the defendant, whereafter police was informed and the vehicle was recovered from the village Malapora and the defendant has no karkhana and the defendant is doing labour work along with his son in junglat mandi. The said witness during cross examination has stated that he is driver by profession for the last 30 years. Zahoor Ahmad Najar another witness of the defendant has deposed before the trial court that he knows the defendant but does not know the plaintiff while stating further that the defendant is a labourer and has no karkhana and his sons are also labourers and that there was no business between the parties and that the defendant is not running the business under the name of Bilal Sports and that the parties had no business of timer and that actually the parties had a dispute over the vehicle and that plaintiff had purchased the vehicle from the defendant and what became the cause of dispute, he does not know. In his cross examination the said witness had stated that he is neighbour the defendant and that there is not any karkhana in the village under the name of “Bilal Sports” and that he has no knowledge as to what is the dispute between the parties or whether any Baradri was held regarding the matter in the village or not and that he was not instructed by the defendant to make a statement in the court and that a dispute in regard to the vehicle had erupted in the parties in the year 2001. Gh. Mohammad Reshi another witness of the defendant/appellant herein has stated that he does know the plaintiff but he knows the defendant who is a labourer and his truck was stolen and that he heard that the same was recovered from the plaintiff. The said witness however was not cross examined by the plaintiff. Bashir Ahmad Bathanji another witness of the defendant/appellant herein has deposed that he knows the plaintiff who had stolen the vehicle of the defendant which was recovered by Bijbehara police and was handed over to the defendant and that the defendant has no bandsaw, but is a zamindar doing labour work and has no transaction with the plaintiff and that the defendant did not give any document to the plaintiff. In the cross examination the said witness has stated that he is a contractor and is doing timber business also and that he knows the plaintiff from the date he had stolen the vehicle of the defendant and that he has not given any statement to the police about the stealing of the vehicle and that the defendant had one son whose name is Bilal Ahmad and does not have business in the name of “Bilal Sports”. 11. A deeper and closure examination of the record available on the file including the statement of witnesses, noticed in the preceding paras as also the impugned judgement would reveal that the trial court while dealing with the issues onus whereof was put upon the plaintiff to prove has rightly came to the conclusion that the documents relied upon by the plaintiff/respondent herein in support of the case set up in the plaint being receipt EXPW-1 and power of attorney EXPW-1/2 nowhere signify that the plaintiff supplied the timber in question to the defendant and that in lieu of the outstanding amount qua the timber in question the defendant handed oversold the vehicle to the plaintiff. 12. However, the trial court not being oblivious to the fact that the entire case set up by the plaintiff is based on oral evidence insofar as the sale and supply of timber/Bren wooden logs to the defendant/appellant herein is concerned has rightly relied upon the principle of preponderance of probability while taking into consideration the evidence lead by the plaintiff in this regard, in that, plaintiff himself as also through his above referred witnesses in one voice have deposed that the plaintiff supplied/sold the 5000 sq ft timber to the defendant/ appellant herein @ Rs. 62 per sq. ft amounting to Rs. 62 per sq. ft amounting to Rs. 3.50 lacs and there is hardly any conflict and contradiction in the said evidence led by the plaintiff/respondent herein insofar as the supply/sale of the timber/wood by him to the defendant/ appellant herein and the failure of the defendant to make payments in lieu thereof to the plaintiff is concerned. The trial court under these circumstances has rightly given much greater credence to said evidence led by the plaintiff/respondent herein as against the evidence lead by the defendant/appellant herein on the basis of principle of preponderance of probability and also the law referred and relied upon thereof. The trial court seemingly has not committed any illegality, perversity or irregularity in the matter while rendering the impugned judgment and decree. 13. Resultantly for the aforesaid reasons the judgment and decree impugned in the instant appeal do not call for any interference, as a consequence whereof, the appeal fails and is dismissed. 14. The amount claimed to have been deposited by the appellant herein before his court shall be returned back to the appellant along with interest accrued thereon. 15. Dismissed. (JAVED IQBAL WANI) JUDGE SRINAGAR 04.03.2025 “S.Nuzhat” Whether the order is speaking: Yes Whether the order is reportable: Yes