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Madhya Pradesh High Court · body

2009 DIGILAW 1128 (MP)

Badri Prasad v. Bhagwant

2009-09-14

D.C.MAHESHWARI

body2009
ORDER 1. This appeal is directed under section 100 of the CPC by the appellant/plaintiff being aggrieved by the judgment and decree dated 12.1.09 passed by II Addl. District Judge (Fast Track) Mauganj in Civil Regular Appeal No. 1-A/09 affirming the judgment and decree dated 25.3.08 passed by Civil Judge Class-I, Mauganj in Civil Original Suit No. 142-A/99, dismissing the suit of the appellant filed for declaration of his title over 1/2 share of the suit land with possession by declaring him to be the son of Shiv Prasad with a further direction to correct the revenue record accordingly. 2. The facts giving rise to this appeal in short are that the appellant herein filed the suit against the respondents contending that the disputed property described in the plaint being ancestral property of the appellant and the respondent No. I was earlier recorded in the name of Beni Madhav Kurmi. In such suit land the grandfather of the appellant, namely, Baba Sukhdev Kurmi, had 1/2 share while the remaining 1/2 share was of Bud hi Kurmi. Said Baba Sukhdev Kurmi died long before 72 years and after his death his land was inherited by his sons, namely, Shiv Prasad and Muni Prasad, who also died long before 70 years and 55 years respectively. Muni Prasad was survived by his two sons, namely, Kedar and Bhagwant. After death of Kedar, his wife, namely Chandrawati started residing with Bhagwant. There was a Joint Hindu Family of Shiv Prasad the father of the appellant and Muni Prasad. The appellant was of the age of 5 years when his father Shiv Prasad died. Thereafter, as per custom of the community, his mother started residing with Mum Prasad as his wife. Said Muni Prasad, being cunning person, by taking his mother in confidence, started to show his name as father of the appellant instead of the name of Shiv Prasad. The alleged Joint Hindu Family is still inexistence. In the month of March, 1999, some dispute took place between the members of the family, on which, the appellant asked respondent No.1 Bhagwant for partition of the ancestral land. The alleged Joint Hindu Family is still inexistence. In the month of March, 1999, some dispute took place between the members of the family, on which, the appellant asked respondent No.1 Bhagwant for partition of the ancestral land. On such occasion, Bhagwant told him that in the revenue records the name of Muni Prasad has been mentioned as his father therefore, he may get only 1/4 share, on which, appellant obtained the certified copies of the record of rights in which he found the name of Muni Prasad as his father and not Shiv Prasad. With these averments, the appellant filed the impugned suit declaring him to be the son of Shiv Prasad and in such premises the Bhumiswami and possession holder of 1/2 share of the suit land with a further declaration to mention the name of Shiv Prasad as his father in the revenue record by replacing the name of Muni Prasad. 3. In the written statement of the respondents No. I to 6 it is stated that in fact the appellant is the son of Muni Prasad and is entitled to get the share in the property accordingly and there is no dispute in this regard but by making false story, the appellant has filed the impugned suit. As per further averments, said Shiv Prasad died issue-less in the lifetime of the predecessor-in-title Shri Beni Madhav. Muni Prasad also died before 45 years. After death of Muni Prasad, as his legal heirs, the appellants, respondent No.1 and the other brother Kedar, had inherited the aforesaid land. Subsequently, Kedar also died before 33 years. Thereafter, as per custom of community, his wife started residing with respondent No.1 Bhagwant as his wife. Shiv Prasad was married with Subarnua but soon after the marriage, before happening their 'Guna' ceremony, Shiv Prasad died hence they could not consume the marital relationship. Thereafter, as per custom of the community Subarnua started residing with Muni Prasad as his wife and due to such physical relationship, appellant Badri Prasad was born while the respondent No.1 Bhagwant and said Kedar, were born from Title, the first wife of Muni Prasad. In such premises, the appellant was known as the son of Muni Prasad and such paternity was always used by the appellant upon filing the present suit. In such premises, the appellant was known as the son of Muni Prasad and such paternity was always used by the appellant upon filing the present suit. At the time of registration of some document regarding transfer and partition of the property with his sons, he shown himself to be the son of Muni Prasad but now unnecessarily only to create the dispute in the family he is showing himself to be the son of Shiv Prasad. Before 40 years, after the death of Muni Prasad, some oral partition took place between the parties in which 1/2 of the ancestral land was taken by Budhi Kurmi while remaining 1/2 of the land was divided between all the three brothers, the appellant, respondent No. 1 and deceased Kedar in equal1/3rd share. Since then the appellant by taking his 1/3rd share is residing separately and also in possession of the same. After the death of Kedar, his wife and sons are in possession of his share. In the month of March, 1999, no discussion with respect of the partition of the land took place between the appellant and respondent No.1. In addition, it is stated that the appellant himself has made the arrangements of the land of his share by carrying out the partition in favour of his sons Bhagwant and Ram Garib stating himself to be the son of Muni Prasad. In pursuance of such registered partition dated 25.2.1970, the names of his sons are also mutated in the revenue record. In such permises, the appellant did not have any cause of action for the impugned suit. The suit is filed on false averments. In such premises prayer for dismissal of the suit is made. 4. The respondent No.7 State being formal party remained ex-parte in the trial Court. 5. In view of the pleadings of the parties, after framing the issues and recording the evidence, on appreciation of the same, the trial Court dismissed the suit. On filing the appeal, by affirming the findings of the trial Court, the same was dismissed, on which, appellant has come forward to this Court with this appeal. 6. Shri R.L. Ariha, learned counsel for the appellant, by referring the pleadings of the parties, the evidence and the exhibited documents argued that the evidence led by the appellant especially the deposition of Deman (PW. 6. Shri R.L. Ariha, learned counsel for the appellant, by referring the pleadings of the parties, the evidence and the exhibited documents argued that the evidence led by the appellant especially the deposition of Deman (PW. 3) aged about 85 years showing the appellant was born from the wedlock of Shiv Prasad and Surbamua, has not been considered by the Courts below with proper approach and contrary to such record, his suit was dismissed by the trial Court and such dismissal was upheld by the appellate Court under the wrong premises. In response of the query of the Court, he fairly conceded that except the oral testimony of some witnesses, the appellant has neither produced nor proved any document on record showing that at any point of time he shown himself to be the son of Shiv Prasad and not of the Muni Prasad. He further said that there was no occasion before the Courts below to discard and disbelieve the evidence of the senior citizen like Deman (PW-3) who saw the appellant since the time of his birth. The Courts below ought to have decreed the suit by accepting such testimony of the witness. By placing his reliance on the provision of sections 60 and 112 of the Evidence Act he prayed for admission of this appeal on the proposed substantial question of law mentioned in the appeal memo. 7. Having heard the counsel at length, I have gone through the record of the Courts below and perused the impugned judgment. It is apparent fact on record that the appellant could not produce any document in which he was shown to be the son of Shiv Prasad at any point of time before filing the impugned suit. On the contrary, on appreciation of the admissible evidence by both the Courts below, it has been concurrently held that the appellant, being son of Muni Prasad and Subamua, is step brother of respondent No.1 Bhagwant and deceased Kedar who were born From Smt. Titli the first wife of Muni Prasad. Besides this, as per certified copies of record of rights available on the record From Ex. P/2 upto Ex. P118, the name of Muni Prasad is shown to be the father of the appellant. Similarly, the name of respondent No.1 is also mentioned showing the name of Muni Prasad as his father. Besides this, as per certified copies of record of rights available on the record From Ex. P/2 upto Ex. P118, the name of Muni Prasad is shown to be the father of the appellant. Similarly, the name of respondent No.1 is also mentioned showing the name of Muni Prasad as his father. I have not found any record showing that at any point of time, the appellant herein initiated any proceeding before the revenue Court or other competent authority in years together before filing the suit to change or modify the name of Shiv Prasad as his father at the place of Muni Prasad. Besides this, at the age of 73 years when the impugned suit was filed how and from which reliable source he got the information that he is the son of Shiv Prasad and not Muni Prasad has not been proved by any admissible evidence. It appears from the impugned judgment that taking into consideration all such aspects and the conduct of the appellant, on appreciation of the evidence, the suit of the appellant was dismissed by the trial Court and on re-appreciation of the evidence, such finding of the trial Court has been affirmed by the appellate Court. It is settled proposition of the law that the concurrent findings based on appreciation of the admissible evidence, being findings of fact, howsoever the same are erroneous, is not open for interference under section 100 of CPC at the stage of second appeal as laid down by the Apex Court in the matter of Kondiba Dagadu Kallam v. Savitri Bai Sopan Gurjar [ AIR 1999 SC 2213 ]. 8. In the aforesaid premises, I have not found any perversity in the impugned judgment. Merely on the basis of some deposition which appear to be the hearsay and inadimissible evidence, this appeal could not be admitted by framing any substantial question of law. In the available circumstances, sections 60 and 112 of the Evidence Act, are also not helping to the appellant because the same are not applicable in the present circumstances of the case at hand. 9. In the aforesaid premises, I have not found any circumstance in the present matter giving rise to any question of law, much less the substantial question of law requiring any consideration under section 100 of the CPC at this stage. 9. In the aforesaid premises, I have not found any circumstance in the present matter giving rise to any question of law, much less the substantial question of law requiring any consideration under section 100 of the CPC at this stage. Consequently, this appeal being devoid of any merit, deserves to be, and is hereby dismissed at the stage of motion hearing.