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2001 DIGILAW 666 (PAT)

Dhaneshwari Devi v. Kedar Mahto

2001-07-31

P.K.DEB

body2001
Judgment 1. This appeal has been preferred against the concurrent findings of both the courts below while the second Additional District Judge, Jamui, in Title Appeal no. 42 of 1988 has affirmed the judgment and decree passed by the Sub-Judge-ll, Jamui, in Title Suit no. 22 of 1985 (17 of 1.987) all through the plaintiff-appellants suit had been dismissed up to the appellate court. 2. The admitted genealogy runs as follows. One Sewa Mahto was the original owner. He died leaving behind two sons Lalman Mahto and Chutar Mahto. There was partition between Lalman and Chutar and Lalman got half land of Khata no. 23. Chutar Mahto and his heirs had no concern with the land of Lalman because Lalman has got lands in plot no. 13 through Hukumnama. But for proper adjudication the heirs of Chutar had also been made parties in the suit. Lalman had two sons, namely, Niro and Jawahar. Jawahar died issueless. Niro had two sons, namely, Harkhu and Bhaglu. Harkhu also died issueless. Bhaglu had three sons and one wife. His wife Dhaneshwari is the plaintiff no. 1 while two sons Sitaram and Lutan are the plaintiff nos. 2 and 3. It was the case of the plaintiff that Bhaglu had a son Keshar but he died issueless, unmarried and at the minority. Jhapila @ Jhalia through whom the defendants were claiming have no relations with the family of the plaintiff and according to the defendants Jhalia @ Dhalia is the wife of Keshar Mahto and that Keshar Mahto was adopted by Jawahar during his life time as his son in the year 1960 and when Keshar Mahto became young he was married with Jhalia and after-wards in the year 1972/73 Jawahar Mahto died leaving his adopted son Keshar Mahto and Jhalia and wife of Jawahar Mahto died in his life time. So after the death of Jawahar Mahto Keshar Mahto came in possession of the entire property of Jawahar Mahto. Keshar Mahto also died issueless leaving behind his wife Jhalia Devi and when the plaintiff started to vex her, for payment of loan from the Cooperative Society, she on 23.6.1977 sold the suit land to defendant nos. 2 and 8 for Rs. 5,000/- on a registered sale deed and so in the proceeding under Section 145 of the Code of Criminal Procedure possession was declared in favour of defendant nos. 2 and 8. 2 and 8 for Rs. 5,000/- on a registered sale deed and so in the proceeding under Section 145 of the Code of Criminal Procedure possession was declared in favour of defendant nos. 2 and 8. The only point in issue was as to whether Keshar Mahto was adopted by Jawahar Mahto and if so whether Jhalia Mahto was the wife of Keshar Mahto and she had any right to sell the suit property. Evidence has been adduced regarding adoption from the side of the defendants and the trial court held that adoption could be proved. Such adoption was said to be proved not only on oral evidence but also in documents in which it could be revealed that the name of Keshar Mahto was mentioned as son of Jawahar Mahto, and it was further proved that Jhalia @ Dhalia was the wife of Keshar Mahto and on his death property of Keshar Mahto had devolved on her and she sold it for her personal necessity. 3. On independent scrutiny, the appellate court held the same thing that adoption could be proved and that Jhalia Mahto was the wife of Keshar Mahto. 4. Mr. C.R. Sinha appearing for and on behalf of the appellants submitted that although both the courts below have come to a concurrent finding that Keshar Mahto was adopted son of Jawahar Mahto but there is not a direct evidence regarding giving and taking as contemplated under Section 11 (VI) of Hindu Adoptions and Maintenance Act, 1956. His submission is that giving and taking is a must to be proved for factum of adoption but only hearsay evidence has been given that such adoption was there. None has come to say that he was present at the time of taking adoption. The adoption took place long back. Whether any body at the time was living or not has not come in evidence and it is not also stated before this Court. So unless anybody is present at the time of adopton or still living and such evidence has been suppressed then there remains no scope to find fault with the evidence of hearsay witness. Whether any body at the time was living or not has not come in evidence and it is not also stated before this Court. So unless anybody is present at the time of adopton or still living and such evidence has been suppressed then there remains no scope to find fault with the evidence of hearsay witness. Moreover, both the courts below independently came to the findings that adoption was there not only on oral evidence but also on documentary evidence and it has already been held by the Apex Court as reported in 1999 (SC) 2213 (Kondiba Dagadu Kadam V/s. Savitribai Sopan Gujar & Ors.) that under Section 100 no relief can be granted on equitable grounds when concurrent findings of facts are there even though those findings are erroneous. On the other hand, Mr. C. R. Sinha has referred to a judgment of the Apex Court as reported in (2001) 5 SCC 46 (Surendra Kumar V/s. Nathulal and Anr.) wherein it was held that when error of law committed by the first appellate court then interference by a second appellate court is a must. Here in the fact finding position of adoption both the courts below have considered the oral evidence regarding adoption. It is true that those oral evidence is of type of hearsay evidence but nowhere it is there nor in the cross-examination that some body was present at the time of adoption but these evidences have been suppressed and, as such, there was non-consideration of Section 11 of the Act and on that factum there is concurrent findings by both the courts below. In my opinion, there is no scope to interfere in this case. 5. A second point has been raised that although no plea was taken before the court below either in the written statement or in the appellate court but this point as urged by him goes to the root of the suit itself and non-consideration of the same is fatal. His submission is that even if it is taken to be true that Keshar Mahto was adopted by Jawahar Mahto and on death of both Jawahar and Keshar, the property has been devolved on Jhalia @ Dhalia. On the face of the record it could be found that she is married for the second time. His submission is that even if it is taken to be true that Keshar Mahto was adopted by Jawahar Mahto and on death of both Jawahar and Keshar, the property has been devolved on Jhalia @ Dhalia. On the face of the record it could be found that she is married for the second time. In that way, when the sale was made in the year 1977 before the amendement of Hindu Widows Remarriage Act Jhalia @ Dhalia even if inherited the property of Keshar Mahto has been divested of it on her remarriage. It has been brought to the notice of this Court that in her deposition she stated that her first marriage was with Keshar Mahto meaning thereby that she had been married for the second, in the form of deposition also her husbands name has been written other than that of Keshar Mahto. So it remains an admitted position that the she was remarried. In that way, she must have been divested of the property on her remarriage but nowhere it has come as to when remarriage had taken place. If her marriage took place after 1983 or after 1977 then the question of divesting her property does not come in. Before her remarriage if she sold away the property then the sale remains valid and by giving of invoking of the Act if no challenge was made earlier then this sale becomes absolute. No such plea was there from the side of the plaintiff at any stage nor there was any argument to that effect nor such issue was framed at any point of time. Although, in my view, that was the vital point to be considered but no such plea is there. Only plea was with regard to non-marriage of Jhalia with Keshar and then Keshar was being adopted by Jawahar Mahto, the suit has come for to be adjudicated and on adjudication both the courts below came to the concurrent findings that sale by Jhalia to defendant nos. 2 and 8 are valid holding both the factum of adoption and marriage then there remains no scope to interfere with such concurrent findings. A new plea taken in the Second Appeal for the first time cannot be considered for the purpose of framing of substantial question of law as contemplated under Section 100 of the Code of Civil Procedure. 6. A new plea taken in the Second Appeal for the first time cannot be considered for the purpose of framing of substantial question of law as contemplated under Section 100 of the Code of Civil Procedure. 6. In that way, I do not find any force in this appeal. Hence, the same is rejected under Order 41, Rule 11 of the Code of Civil Procedure.