JUDGMENT 1. - This second appeal is directed against concurrent findings arrived at by the courts below in judgment & decree whereby civil suit for possession of a property filed by the plaintiffs (respondent Nos. 1 & 2, namely Illahi Bux & Smt. Chhango) against defendant (respondent) No.3-Mangilal and appellant Abdul Rauf) was partly decreed declaring that in the disputed shop & house as described in paras 3 & 4 of the plaint, the plaintiffs have got ⅔rd share whereas the appellant (defendant) only ⅓rd share, and consequently, the decree was passed for joint possession in favour of both the parties. 2. The dispute arose for possession of one house and a shop situated in Mahajans Mohallah Ward No. 1, Deoli town and village Raj Mahal Tehsil Deoli respectively which belonged to Ibrahim (deceased) who is said to be brother of plaintiffs, Illa hi Bux and Mst. Chhango who are children of Kallu. Abdul Rauf (defends not-appellant) is son of Mst. Magbool-daughter of Ibrahim. Mst. Maqbool had expired in life time of Ibrahim. The plaintiffs claimed title to the property in question as heirs of Ibrahim and averred in their plaint that the defendant-appellant has taken forcible possession of the suit property and were in wrongful possession thereof. It was prayed that possession of the suit property should be given to the plaintiffs and a decree for damage in the form of mesne profits should also be granted. 3. The defence set up by the defendants in written statement was that the plaintiffs are not real brother and sister of Ibrahim whose mother and that of plaintiffs were different and they are not legitimate children of Kallu that, the plaintiffs are not heirs of Ibrahim (deceased) whose daughter, Mst. Maqbool (mother of Abdul Rauf-appellant defendant) had since died during life time of Ibrahim, the defendant appellant was brought up by Ibrahim and a Will made in favour of the appellant by him (deceased) on 20.10.59 for the suit property apart from other immovable and movable properties. Next defence plea taken in written statement was that since Ibrahim had some unpaid debts, therefore, the suit shop was sold in auction and defendant-Mangilal (respondent No. 1) purchased the same in auction; so, he (Mangilal) was in legal possession of the shop in question. 4. Next defence plea taken in written statement was that since Ibrahim had some unpaid debts, therefore, the suit shop was sold in auction and defendant-Mangilal (respondent No. 1) purchased the same in auction; so, he (Mangilal) was in legal possession of the shop in question. 4. On the basis of the pleadings, following issues were framed : 1 & D;k ck<+xzLr tk;nkn ftl dk foLr`r fooj.k okn i= ds isjk 3 o 4 esa of.kZr gS e`rd bczkfge ds LokfeRo o dCts dh gS ftlds oknhx.k ckfjl gSa vkSj mUgsa Lojokf/kdkj izkIr gSaA 2 & D;k izfroknh us mDr tk;nkn ij vukf/kd`r dCtk fd;k gS\ rFkk izfroknh ua0 2 dks dqN ekxZ ij dCtk ns fn;k gS ftldk mls dksbZ vf/kdkj ugha gS\ 3 & izfrdkj D;k gksxk\ After recording of the evidence of both parties and hearing them, learned trial Court vide its judgment & decree dated 12.7.79 decreed the plaintiffs suit as indicated earlier holding that the Will made in favour of the defendant-appellant was valid only to the extent of one-third share in the suit property because, according to the Mohammedan law. the Will made without consent of other heirs is valid only to the extent of one third share in the property bequeathed. Learned trial Court also observed the plaintiffs were heirs of deceased, Ibrahim and therefore, were entitled to ⅔ share in the suit property Thus, learned trial Court passed the decree for joint possession in favour of the plaintiffs and defendants over the disputed property. Against the said decree. defendant-appellant went in appeal before the District Judge, Tonk who vide his judgment & decree dated 17.9.1980 dismissed the appeal and upheld the decree passed by the trial court. Hence this second appeal. 5. At the time of admitting the present appeal, this Court formulated following substantial questions for adjudication of the controversy in issue : (1) Whether the presumption of legitimacy as regards respondent Nos. 1 and 2, the children of Kallu, has been rightly drawn ? (2) Whether according to Mohammedan Law step-brothers and sisters can inherit the property of a step-brother ? 6. I have heard learned counsel for the parties and perused the entire record. 7. 1 and 2, the children of Kallu, has been rightly drawn ? (2) Whether according to Mohammedan Law step-brothers and sisters can inherit the property of a step-brother ? 6. I have heard learned counsel for the parties and perused the entire record. 7. The appellant's counsel argued at the outset that learned trial Court fell in error in drawing presumption under Section 112 of the Indian Evidence Act in favour of the plaintiffs, thereby erred in holding that the plaintiffs are entitled to get ⅔rd shares in suit property. It was urged that looking to the evidence on record, it can safely be said that both the plaintiffs were off-springs of Kallu but they were begotten by Kallu having illicit relations with Mst. Rehmat so, they are bastards and according to Mohammedan law, the bastard cannot inherit property either of Ibrahim or Kallu. 8. According to the learned counsel, both subordinate courts misread the evidence. Learned counsel for the appellant then added that even if the plaintiffs are assumed to be step brother and sister of deceased, Ibrahim then in that situation, they could and cannot inherit the property of Ibrahim. Next urge on behalf of the appellant was that learned subordinate courts fell in error in shifting onus of proving illegitimacy as regards defendant-appellant. To fortify, learned counsel cited the decisions reported in (1) AIR 1952 All. 640 ; (2) AIR 1936 All. 528; (3) AIR 1929 Labour p. 444; (41 AIR 1944 Oudh p. 162 and (5) AIR 1954 SC 526 . 9. Counteracting the above submissions, learned counsel for the plaintiffs ( respondents) contended that both the courts below have rightly appreciated the evidence of the parties and after full consideration passed the judgments under challenge in this appeal merely on the ground that the conclusions arrived at by the courts below are contrary to the evidence on record. The conclusions arrived at by the courts below are concurrent in nature and cannot be assailed and interfered with in this second appeal, howsoever they may be erroneous, Shri S.M. Ali added. 10. The conclusions arrived at by the courts below are concurrent in nature and cannot be assailed and interfered with in this second appeal, howsoever they may be erroneous, Shri S.M. Ali added. 10. Next contention on behalf of the plaintiffs was that the parentage of the plaintiffs has been admitted by the defendant-appellant and in these circumstances, it was for the defendant-appellant to have proved illegitimacy but the appellant failed and in this view of the matter, both the courts below were justified in concurrently saying that the appellant failed to shift his onus. 11. Having considered the points raised by both the learned counsel and gone through the entire record apart from the decisions referred to by the parties, in my view, a few salient facts need emphasis. 12. According to the averments made in paras 1 and 2 of the plaint, Ibrahim (deceased) was the plaintiff brother whereas in reply to this averment, the defendant-appellant in his written statement stated that the plaintiffs are not real brothers of Ibrahim and they are not born by one mother but born by different mothers and that apart they were not legitimate children of Kalu. 13. From the above narration of few facts condensed from the written statement, it would be gain-saying that the plaintiffs are not denied to be offsprings of Kalu and, therefore, parentage of the plaintiffs is admitted. Admissions wrung out from the written statement and pleadings show that the defendant admitted that the plaintiffs were off springs of Kalu who is admittedly father of Ibrahim. That being so, the presumption would be that the plaintiffs are legitimate son and daughter of Kalu and if the case of the defendant-appellant was that the plaintiffs were not son and daughter of Kalu but they were begotten by a woman who was not lawful married wife of Kalu then it was on the defendant-appellant to establish these facts. 14. The law as to the presumption in favour of legitimacy is well understood. Presumption of legitimacy arises under Section 114 of the Evidence Act. Of course, in order to raise presumption of such a kind there must be some facts to support it. 14. The law as to the presumption in favour of legitimacy is well understood. Presumption of legitimacy arises under Section 114 of the Evidence Act. Of course, in order to raise presumption of such a kind there must be some facts to support it. Here, I have the one fact, namely, that the paternity of the plaintiffs was admitted by the defendant who in his written statement as well as evidence before the trial Court and that apart, his witnesses did not dispute that the plaintiffs were not son and daughter of Kalu. This evidence fortifies the presumption which the law allows and makes it more difficult to overturn. The result, therefore, is that the decision of courts below cannot be erroneous on the point of law warranting no interference in this second appeal. Hence I hold that the burden of proving illegitimacy was on the defendant-appellant and that burden was not discharged by him. 15. Both the courts below after discussing the evidence of parties and, therefore, came to this conclusion that the paternity of the plaintiffs has not been disputed and it was the defendant's case that they (plaintiffs) were begotten by a woman (Smt. Rehmat) who was not lawful married wife of Kalu. Learned counsel for the appellant pointed out the infirmities in the statement of Illa hi Bux (PW1). Those infirmities have also been noticed by the courts below but the testimony of Illahi Bux was found to be believed on the point that the plaintiffs are son and daughter of Kalu. That apart, the courts below held that the infirmities are not material for the real controversy. 16. On behalf of the defendant-appellant, Abdul Gani (DW 4) was the only witness who deposed that Rehmat was not married lawfully to Kalu. This witness has been disbelieved by the courts below on the ground that the witness did not even seen either Rehmat or Smt. Geri who are allegedly wife of Kalu and, therefore, the Courts below observed that Abdul Gani (DW 4) cannot be held to be best witness for proving that Rehmat was not lawful married wife of Kalu. I have gone through statement of witnesses and I am of the opinion that in the case at hand, it has not been proved that the plaintiffs are bastard. In these circumstances, contention of the learned counsel for the appellant is devoid of any force. I have gone through statement of witnesses and I am of the opinion that in the case at hand, it has not been proved that the plaintiffs are bastard. In these circumstances, contention of the learned counsel for the appellant is devoid of any force. 17. From the evidence, it can be inferred that the plaintiffs were legitimate children of Kalu and are begotten in wedlock of Rehmat and Kalu. Evidently, Rehmat lived with Kalu for long time and both were living as husband and wife. Thus, the courts below rightly took the aid of Section 112 and 114 of the Evidence Act in order to draw presumption in favour of the plaintiffs. 18. Learned counsel for the defendant-appellant failed to show any law on the point whether step brother and sister cannot inherit property of step brother ? 19. In Rahmat Ullah v. Maqsood (AIR 1953 All. 640) the facts were different. In the cited case, paternity was not admitted and that is why, it had been held that illegitimate child could inherit from mother and her relations and that a son born of a woman after her marriage cannot be considered as her relation' whose property her illegitimate child is entitled to inherit. In these circumstances, this cited case has got no bearing on the point and controversy involved in the case at hand and the learned counsel cannot take benefit of it here. 20. As stated earlier, in the case at hand. the subordinate courts were justified in drawing inference under Sections 112 & 114 of the Evidence Act because here, paternity has not been disputed and for this, I lend support from the decision in Nand Kishwar v. Gopal Bux ( AIR 1940 PC 93 ). 21. This Court cannot interfere with the conclusions of fact recorded by the lower courts howsoever erroneous the said conclusions may appear to be to the High Court because, as the Privy Council observed, however, gross or inexcusable the error may seem to be, there is no jurisdiction under Section 100 to correct that error. Having benefited by the enlightens derived from authoritative decisions, it is not necessary for me to decide the points raised by the parties which attack the findings and conclusions of fact recorded by the subordinate courts. 22. Having benefited by the enlightens derived from authoritative decisions, it is not necessary for me to decide the points raised by the parties which attack the findings and conclusions of fact recorded by the subordinate courts. 22. In view of the aforesaid discussions, I do not find any force in this second appeal and the same is dismissed without any order as to costs.Appeal dismissed. *******