Bideshi Ram v. Nathuni Ram — 1999 DIGILAW 884 (PAT)

Judgment M.Y.Eqbal, J. 1. This appeal under clause 10 of the Letters Patent of the High Court is directed against the judgment dated 27.2.91 passed by learned Single Judge of this Court in F.A. No. 325/80 (R), whereby and whereunder the appeal filed by the plaintiffs-respondents has been allowed and the judgment and decree dated 28.3.80 passed by Additional Subordinate Judge II, Daltonganj, Palamau in Partition Suit No. 73/76 has been set aside. 2. The fact of the case lies in a narrow compass. 3. The original plaintiff (now deceased) namely, Janki Kahar instituted partition suit No. 73/76 for a decree of partition in respect of his share in the suit property left by his father, Rajnandan Kahar. The plaintiffs case, inter alia, was that common ancestor Rajnandan Kahar had four sons namely, Janki Kahar, Bechu Kahar, Supan Ram and Bideshi Ram. It is alleged that all of them constituted a joint Hihdu family having Ramnandan Kahar the common ancestor of the family. After the death of Ramnandan Kahar the joint family continued and the plaintiff became the Karta of the family. It was further alleged that the said properties were jointly held and possessed by all the four sons and their heirs but cultivation was carried out according to to convenience. However, subsequently the plaintiff experienced difficulty in cultivation and claimed 1/4th share in the suit property. It is, however, alleged that one of the sons namely Bechu Kahar died about 10 years ago leaving behind widow and sons, who are defendant nos. 2 and 4 to 6. Similarly Supan Ram, another son of Ramnandan Kahar died in the year 1970-71 leaving behind defendant no.3 and his only son defendant no.7. He also left behind three daughters, who are defendant nos.8 to 10. 4. The defendants-appellants filed written statement denying and disputing that the plaintiff Janki Kahar is the son of Ramnandan Kahar. It was alleged that the plaintiff is not even Kahar by caste and he has no right, title, possession or interest in any portion of the suit property. The defendants also denied and disputed the genealogical table given by the plaintiff in the plaint. The defendants case is that it is true that the plaintiff is the brother of defendant no.1 but through different father. It is stated that one Sudan Ram, Kahar by caste, was a resident of village Murmasi. The defendants also denied and disputed the genealogical table given by the plaintiff in the plaint. The defendants case is that it is true that the plaintiff is the brother of defendant no.1 but through different father. It is stated that one Sudan Ram, Kahar by caste, was a resident of village Murmasi. He had a daughter namely Jiwasia. She was married to one Mutur Ram of the same village. Mutur Ram finding her unchastity, divorced Jiwasia Kahharin about 65 years ago. She then came back to her fathers place and started living with him. In course of time she developed intimacy with one Kali Sao of village Lesiganj. This was not approved by the elders of the village who pressed Sudan Kahar to marry Jiwasia. Accordingly Jiwasia was married to one Gopi Ram of Lakhipatra. She went to live with her new husband Gopi but she was immediately divorced as she was pregnant from before. It was further alleged that she was brought back to Murmasi by Gopi Ram and left on her father Sudan Ram. A son was later on born, who was known as Janki Ram. The defendants further case is that Ramnandan Kahar was married with one Mst. Neuri but he could have only two daughters through her. He expressed his desire to marry again, on which seniors of the village and Sudan Ram pressed him to marry Jiwasia. Accordingly Ramnandan Kahar married Jiwasia and she was brought to his house. At that time plaintiff was 10 to 12 years of age. Later on Ramnandan Kahar allowed the plaintiff Jania Kahar to live in his house and agreed to appoint him as his plough man. The defendants further case was that after this marriage with Jiwasia Ramnandan Kahar was blessed with a son Bachu Kahar through his first wife Mst. Neuri. Thereafter, two sons namely Sudan Kahar and Bideshi Kahar were born to Jiwasia through Ramnandan Kahar. The defendants, therefore, pleaded various other defences to show that plaintiff has no right, title and interest in the property and he is not the member of the family. 5. The trial court framed the following issues for consideration in the suit : "1. Is the suit as framed maintainable? 2. Has the plaintiff any cause of action for the suit? 3. Is the plaintiff a son of Ramnandan Kahar? 4. Is the plaintiff entitled to the partition? 5. 5. The trial court framed the following issues for consideration in the suit : "1. Is the suit as framed maintainable? 2. Has the plaintiff any cause of action for the suit? 3. Is the plaintiff a son of Ramnandan Kahar? 4. Is the plaintiff entitled to the partition? 5. To what relief or reliefs, if any, is plaintiff entitled?" 6. The trial court relying upon the oral testimony of the defendant witnesses has decided issue no.3 against the plaintiff and it was held that plaintiff is not the son of Ramnandan Kahar. Accordingly the suit was dismissed. Aggrieved by the said judgment and decree the plaintiff filed F.A. No. 325/80 (R) before this Court. The said appeal was heard by a learned Single Judge, who by the impugned judgment allowed the appeal and set aside the judgment and decree of the trial court. Hence this Letters Patent Appeal by the defendants-appellants. 7. Mr. P.C. Roy, learned counsel appearing for the appellants, assailed the judgment of the learned Single Judge as being contrary to law, facts and evidence on record. Learned counsel submitted that while reversing the judgment and decree of the trial court the learned Judge has not taken into account the oral evidence in its right perspective. Learned counsel submitted that while considering the question of proving of genealogy the learned Judge ought to have followed the principles laid down by the Supreme Court in the case of State of Bihar & ors. V/s. Sri Radha Krishna Singh & ors. ( AIR 1983 SC 684 ). Learned counsel lastly submitted that the learned Single Judge has given too much improtance to the documentary evidence created by the original plaintiff instead of taking precaution before relying on those documents for deciding the issue of parantage of the plaintiff. 8. On the other hand, Mr. K.K. Sahay, learned counsel appearing on behalf of the respondents, supported the decision of the learned Single Judge on various grounds. Learned counsel submitted that the trial court has not at all discussed the documentary evidence in its right perspective while deciding the issue of parantage of the plaintiff. 9. From perusal of the judgment of the learned Single Judge, it reveals that learned counsels confined their argument only on the issue as to whether the plaintiff is or is not the son of Ramnandan Kahar. 9. From perusal of the judgment of the learned Single Judge, it reveals that learned counsels confined their argument only on the issue as to whether the plaintiff is or is not the son of Ramnandan Kahar. Undoubtedly, this appears to be the main dispute between the parties. The trial court mainly relied upon the evidence of the defendants witnesses and came to a finding that the defendants could prove that the plaintiff was born to Jiwasia prior to her marriage with Ramnandan Kahar. 10. The learned Single Judge has taken much pain in analysing the entire oral evidence adduced by the plaintiffs witnesses and the defendants witnesses. The teamed Judge has also given anxious consideration to the documentary evidences adduced by the plaintiff. I would also like to refer some of the documentary evidences namely, Ext. 2, which is a sale deed executed by Raghunandan Kahar in favour of plaintiff Janki Kahar and his brother Supan Kahar in the year 1941. In this document there is clear mention of the fact that Janki and Supan were the sons of Ramnandan Kahar. Similarly Ext.1 series are the rent receipts in which the plaintiff Janki Kahar has been shown to be the son of Ramnandan Kahar. Ext.3 is the notice issued by the Collector under the Land Acquisition Act some time in the year 1956. In this notice also the plaintiff Janki Kahar and Supan Kahar has been described to be the sons of Ramnandan Kahar. Ext.4 is the voter list of village Murmusi. In this voter list at serial no. 161 the name of plaintiff has been shown and his fathers name has been disclosed as Ramnandan Ram @ Ramnandan Kahar. Similarly Ext. 5 is a hand-note dated 31.12.58 executed by Janki Ram in which he had described himself as the son of Ramnandan Kahar. Ext, 6 is another sale deed dated 14.5.53 executed by Smt. Dharmawati Devi in favour of Janki Kahar, the son of Ramnandan Kahar. Ext. 7 is another sale deed executed by Smt. Dharmawati Devi in favour of the plaintiff describing him as son of Ramnandan Kahar. The document filed by the defendants namely, Ext.B is a notice issued by S.D.O. Sadar, Daltonganj in a proceeding under Section 144 Cr. P.C. in which the plaintiff and others have been figured as members of second party. 7 is another sale deed executed by Smt. Dharmawati Devi in favour of the plaintiff describing him as son of Ramnandan Kahar. The document filed by the defendants namely, Ext.B is a notice issued by S.D.O. Sadar, Daltonganj in a proceeding under Section 144 Cr. P.C. in which the plaintiff and others have been figured as members of second party. In this notice also the plaintiff was shown as son of Ramnandan Kahar. 11. As noticed above, the learned Single Judge has analysed and scrutinised the entire evidences both oral and documentary in details and has come to a finding that there are sufficient evidence on recored which conclusively prove the fact that the plaintiff is the son of Ramnandan Kahar. While deciding the parentage the teamed Single Judge has also taken notice of the provision of Section 50 of the Indian Evidence Act and the law decided by the Supreme Court in the case of Sitajl V/s. Bijendra Narajn Choudhary (AIR 1964 SC 601) and the case of Dolgobinda V/s. Nima Charan (AIR 1957 SC 914) and also in the case of Ramadhar V/s. Janki (AIR 1956 Patna 49). 12. I do not find any reason to differ with the findings arrived at by the learned Single Judge. In my opinion also besides the oral evidence, the documentary evidences adduced by the plaintiff are sufficient for cominig to a conclusion that the original plaintiff Janki Ram was the son of Ramnandan Kahar. The decision of the Supreme Court in the case of State of Bihar vs. Radha Krishna Singh (supra), relied upon by Mr. P.C. Roy, fully support the case of the plaintiff-respondent. In that case their Lordships have laid down the principles of law in the matter of appreciation of evidence while deciding the issue of genealogy. So far admissibility of documentary evidence is concerned, their Lordships observed : "In our opinion, Ext. J. squarely falls within the four comers of S.35 of the Evidence Act which requires the following conditions to be fulfilled before a document can be admissible under this section. (1) The document must be in the nature of an entry in any public or other official book, register or record. (2) It must state a fact in issue or a relevant fact. (1) The document must be in the nature of an entry in any public or other official book, register or record. (2) It must state a fact in issue or a relevant fact. (3) The entry must be made by a public servant in the discharge of his official duties or in performance of his duties especially enjoined by the law of the country in which the relevant entry is kept." 13. Applying the principles laid down by the Apex Court in the instant case, the documentary evidence adduced by the plaintiff cannot be discarded and it must be held that these documents are important admissible evidence for coming to a right decision. As noticed above, admittedly the sale deeds were executed long long before the institution of the suit when there was no-dispute with regard to the parentage of the plaintiff. Besides sale deeds, voter list, notice issued by the Land Acquisition Officer are the strong piece of evidence to suggest that the original plaintiff Janki Ram was none else but the son of Ramnandan Kahar. After taking into consideration all these facts and evidences the learned Single Judge has rightly reversed the finding of the trial court, which was based on extaneous consideration. 14. Having regard to the entire facts and circumstances of the case and the law discussed by the teamed Single Judge as also by this Court, I do not find any merit in this appeal, which is accordingly dismissed.