JUDGMENT Radha Mohan Prasad, J. The plaintiff-appellant has preferred this second appeal against the judgment and decree dated 15th November, 1983 passed by the 5th Additional District Judge, Siwan in Title Appeal No. 29 of 1979 dismissing the appeal and affirming the judgment and decree dated 17th January, 1979 passed by the 2nd Additional Subordinate Judge, Gopalganj, in Title Suit No. 74/86 of 1970/75. 2. In short, the relevant facts are that the claim of the plaintiff-appellant is based on a deed of gift dated 29.5.1967 executed by Most. Pawdhariya, who, according to the appellant, was the wife of his first cousin Mahesh Rai, son of Jiw Rai who died leaving behind her. Out of defendants 1 to 3. defendant 1 died in the court below. The said defendants are the first cousins of the plaintiff. According to them, Most. Pawdhariy was not the widow of Mahesh Rai. Actually she was he wife of Jamadar Rai, mother of Langatu Rai and Bindeshwari Rai and grandmother of the plaintiff. After the death of her husband, Most. Pawdhariya lived with her Dewar Mahesh Rai as she was neglected by her sons. Most. Kalahi, who executed sale deed dated 19.5.1967 in favour of defendants 1 to 3 with respect to the land of Mahesh Rai, used to tender her service to Most. Pawdhariya, who was suffering from leprosy since long. According to the defendants, Most. Kalahi is the legally married wife and Santi Devi is legitimate daughter of Mahesh Rai and the marriage of Mahesh Rai with Kalahi was the first and last. It is the case of the defendants that Pawdhariya had no right to transfer the land of Mahesh Rai by means of deed of gift to the plaintiff. It is alleged that the deed of gift is a forged and fabricated document and got executed in order to grab the land of Mahesh Rai and oust Most. Kalahi and her daughter from their right and interest over the suit land. 3. The main issues framed by the trial court were as to whether Pawdhariya or Kalahi is the widow of Mahesh and as to whether Pawdhariya succeeded the suit property being the widow of Mahesh and is the plaintiff in possession of the suit land and the deed of gift executed by her created any right and title to the plaintiff. 4.
4. The lower appellate court on detailed consideration of the documentary evidence found that the plaintiff failed to prove that Most. Pawdhariya was the wife of Mahesh. In this case the plaintiff has not been examined. The plaintiff took heavy risk by withholding himself from coming in the dock. His uncle came to depose on his behalf and his father who was alive also did not come to support the case of the plaintiff. Most. Pawdhariya died and as such obviously she was not examined. The lower appellate court has considered the oral evidence also in detail and on consideration of all other evidences led on behalf of the plaintiff came to the conclusion that the said evidences are insufficient to form the opinion that Pawdhariya was the legally married wife of Mahesh and, thus, held that the plaintiff had not succeeded in proving Pawdhariya as the wife of Mahesh by oral evidence too. The lower appellate court has also considered the evidence adduced by the defendants elaborately and held that Kalahi was the wife of Mahesh and from their cohabitation Shanti was born and she is the daughter of Mahesh. It has also been held that the case of the plaintiff that Kalahi was married with Ramnandan also stands nowhere when Ramnandan appeared before the court and deposed that she was not his wife and Shanti was not his daughter. 5. Both the courts below have concurred with the said findings on detailed consideration of the evidences and as such they stand concluded by concurrent findings on facts by the two courts below, with which this Court sitting in second appeal normally cannot interfere. However, while admitting this appeal on 14.5.1984, this Court formulated the following question of law, which is as follows: "Whether the court of appeal below has committed error of law in holding that Paudharia is not the wife of Mahesh and that Kalahi is the wife of Mahesh without considering the oral evidence adduced on behalf of the appellants and committed errors of record in rejecting Ext. 5 Series on the ground that they were obtained during the life time of Mahesh, although those documents were obtained after Mahesh had died ?" 6. Learned counsel for the appellant has failed to point out that oral evidences adduced on behalf of the appellant have not been considered by the two courts below.
5 Series on the ground that they were obtained during the life time of Mahesh, although those documents were obtained after Mahesh had died ?" 6. Learned counsel for the appellant has failed to point out that oral evidences adduced on behalf of the appellant have not been considered by the two courts below. In fact, the lower appellate court has considered the oral evidences adduced on behalf of the plaintiff-appellant in paragraph 13 of the impugned judgment in detail. 7. Mr. Surya, learned counsel appearing on behalf of the respondents submitted that though non-discussion of the evidence by the lower appellate court affirming the trial court's judgment does not vitiate the judgment of the lower appellate court but, in the present case, both the courts have considered the evidence in detail and recorded findings concurring with each other and this Court sitting in second appeal should refrain from interfering with the concurrent findings on facts by the courts below. In this regard he has referred to the decisions of this Court in the case of Kuleshwari Devi vs. Mosst. Jagdamba Devi, reported in 1987 PLJR 70 and in the case of Garib Mahto vs. Girija Devi, reported in 1987 PLJR 142 (Paragraph 8). As regards the documentary evidence also Mr. Surya submitted that the courts below especially the lower appellate court have considered the exhibits, including Ext. 5 Series in detail and finding serious discrepancies held that they reasonably create a doubt on their authenticity. It was submitted that moreover, the custody of said rent receipts was not proved which was very essential especially when the plaintiff and Pawdhariya were not _ examined in the suit. It was further submitted by him that said rent receipts, out of Ext. 5 Series, contain the name of Pawdhariya even in the year 1963-64 i.e during the lifetime of Mahesh. The rent receipts which have been issued in the year 1964 bear the name of Mahesh and two of the rent receipts bear the name of Ramayan in the column of 'rent payee'. As such, the lower appellate court has rightly held that they create a doubt on their authenticity. Accordingly, Mr. Surya submitted that there is no question much less a substantial one involved in the present second appeal warranting interference with the impugned judgment. 8. Mr.
As such, the lower appellate court has rightly held that they create a doubt on their authenticity. Accordingly, Mr. Surya submitted that there is no question much less a substantial one involved in the present second appeal warranting interference with the impugned judgment. 8. Mr. Dwivedi, learned counsel appearing for the appellant submitted that there cannot be any doubt that the judgment of affirmance is not normally interfered unless there is substantial question of law involved, but the Courts right up to Apex Court have held that the appellate court is duty bound to consider the entire evidence, with correct approach and with legal perspective. According to him, the primary object of a Court of law is to dispense justice and not to bank on empty technicality of finality of concurrent finding, howsoever wrong it may be, based on non-consideration of material facts, errors of record and enumeration of evidence without proper scrutiny. It was submitted that the Apex Court has repeatedly held that the concurrent finding is not the touchstone of the legality of the judgment. 9. There cannot be any doubt to the aforementioned proposition argued by Mr. Dwivedi. Such judgments, in my opinion, can also be said to be illegal and perverse. As such, merely because a finding is recorded concurrently by the two courts below will not preclude second appellate court from interfering with the same even if the said findings are perverse and/or suffer from gross illegality but, at the same time, if the finding is merely erroneous, it is not sufficient to invoke the interference by the second appellate court. Reference in this connection may be made to the decisions of the Apex Court as well as to this Court in the case of D.Pattabhiramaswamy v. S.Hanymayya ( AIR 1959 S.C. 57 ) and in the case of S.N. Sah vs. B.N.P. Tiwary (AIR 1973 Patna 386). 10. The trial court and specially the lower appellate court has discussed each and every evidence led by the parties and has recorded specific finding that Pawdhariya is not the widow of Mahesh.
10. The trial court and specially the lower appellate court has discussed each and every evidence led by the parties and has recorded specific finding that Pawdhariya is not the widow of Mahesh. I do not find any vital infirmity in the discussion made by the lower appellate court so much so that he has also taken notice of the fact that the plaintiff has not examined himself and his father also did not come in the dock to support the case of the plaintiff about the marriage of Pawdhariya to Mahesh Rai. 11. Learned counsel for the appellant also submitted that the two courts below have adopted double standard In evaluating the evidences led by the parties. I do not find any substance in the said submission of the learned counsel for the appellant. In fact, bare perusal of the judgment of the lower appellate court would show that on detailed consideration of the documentary as well as oral evidence of the plaintiff-appellant, the lower appellate court has found and held that the plaintiff failed to prove that Most, Pawdhariya was the wife of Mahesh. Under such circumstances, I do not find it to be a fit case in which this Court sitting in second appellate jurisdiction should interfere with the impugned judgment and decree. 12. Accordingly, this appeal fails and is dismissed. In the facts and circumstances, there shall be no order as to costs.