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Jharkhand High Court · body

2010 DIGILAW 881 (JHR)

Shyamlal Gundua v. Gola Gundua

2010-09-08

N.N.TIWARI

body2010
Order The defendants are appellants in this second appeal. They have challenged the impugned judgment and decree passed by learned 1st Additional District Judge. Chaibasa in Title Appeal No.18 of 2004. By the said judgment and decree, learned Lower Appellate Court has set aside the judgment and decree of the learned Trial Court and decreed the suit. 2. The plaintiffs had filed title suit, being T.S. No.13 of 2000, praying relief for declaration of right, title and interest. Plaintiffs' case was that the plaintiffs and one Sumi Kui are descendants of one common ancestor-Sado Ho. who died leavmg behind Baragola Ho and Joteya Ho. The plaintiffs are descendants of Baragola Ho. whereas Joteya Ho had only one daughter-Sumi Kui. Sumi Kui died unmarried. When Sumi Kui was alive, she was in possession of the land of her father Joteya Ho. Her name was also recorded as raiyat in respect of the suit land alongwith the sons of Baragola Ho. After the death of Sumi Kui the plaintiffs, being the nearest agnates, inherited the said property according to their custom. The defendants, who are stranger, started making false claim over the suit land after the death of Sumi Kui, which gave rise to the cause of action for the suit. 3. The defendants case, on the other hand, is that Sado Ho had four sons, namely, Daso Ho, Chumbru Ho, Baragola Ho and Joteya Ho. The defendants are the descendants of Daso Ho and Chumbru Ho and are the nearest agnates alongwith the plaintiffs. They have got 1/3rd share in the property of Joteya Ho, after the death of his daughter Sumi Kui. The name of Sumi Kui was recorded in the survey record of right showing her possession. However, there was no necessity for challenging the said entry during the lifetime of Sumi Kui, as the name of Sumi Kui was jointly recorded with the plaintiffs. They have been illegally claiming their right over the property of Sumi Kui, whereas the defendants also being the nearest agnates are entitled to their share in the property of Joteya Ho after the death of his daughter Sumi Kui. 4. Learned Trial Court dismissed the suit, holding that there are oral evidences in support of both the sides. The plaintiffs' witnesses though supported the genealogy given by the plaintiffs, yet admitted that there should be partition of land of Sumi Kui. 4. Learned Trial Court dismissed the suit, holding that there are oral evidences in support of both the sides. The plaintiffs' witnesses though supported the genealogy given by the plaintiffs, yet admitted that there should be partition of land of Sumi Kui. The document-Ext.-E, prepared by the villagers, also supported the claim of the defendants. On that basis, learned Trial Court inferred that the genealogical table given by the defendants are correct and the plaintiffs are not entitled to the relief claimed for. 5. Aggrieved by the judgment and decree of the learned Trial Court, the plaintiffs/respondents filed appeal in the Court of learned District Judge, Chaibasa, being Title Appeal No.18 of 2004. The said appeal was finally heard and decided by the 1st Additional District Judge, Chaibasa. Learned Lower Appellate Court thoroughly appraised the evidences of the parties and came to the finding that in the record of right-Ext.-1, the names of the plaintiffs are recorded with Sumi Kui and their possessions are also recorded. The plaintiffs' witnesses particularly, P.Ws. 2, 3 and 4. belong to the same KILLI (same family line) and they have supported the claim of the plamtiffs and have proved the genealogy given by the plaintiffs, whereas the defendants have brought witnesses, who, except D.W. 5, are of different villages 'and D.W. 5 is also not of same KILLI. 6. On appraisal of the aforesaid evidences and other materials on record, learned Lower Appellate Court set aside the judgment and decree of the Trial Court and decreed the suit. Learned Lower Appellate Court has recorded a detailed reason for arriving at the said conclusion. 7. Mr. Bhaiya Vishwajit, learned counsel appearing on behalf of the appellants, submitted that the learned Lower Appellate Court has erroneously believed on the evidences of the plaintiffs. The reasons for discarding the defendants' evidences are not sound and legal. The findings arrived at by the learned Appellate Court on the basis of the evidences of P.Ws. are erroneous. The reasons recorded by the learned Lower Appellate Court for setting aside the judgment and decree of the Trial Court are not supported by the facts, evidences and law and the judgment and decree of the learned Lower Appellate Court IS liable to be set aside. 8. Learned counsel appearing on behalf of the respondents on the other hand. submitted that the learned Lower. 8. Learned counsel appearing on behalf of the respondents on the other hand. submitted that the learned Lower. Appellate Court has throughly scrutinized the evidences on record and has come to the conclusion that the plaintiffs being the nearest agnates of Joteya Ho, are entitled to inherit the property and share of Joteya Ho after the death of Sumi Kui. The finding is based on legal evidences and is in accordance with legal principles. Learned Trial Court had committed serious error in holding that the defendants were also entitled to the share in the property, though there is no such evidence to support the claim of the defendants that they belong to the same family. 9. Having heard learned counsel for the parties, I perused the judgments of learned Lower Appellate Court as well as of learned Trial Court. I find that though learned Trial Court had dismissed the plaintiffs' suit, the finding recorded by him is not supported by sound reasons and is perverse. Trial Court has based his finding or assumption and surmises. He has held that it may be inferred that genealogical table produced by the defendants is correct. 10. Section 50 of the Evidence Act provides specific mode for proving the relationship and genealogy. According to the said provision, the person proving genealogy and relationship must have special means of knowledge as a member of the family or otherwise. An oral evidence of a person without having special means of knowledge. who is not a family member, cannot be held to be legal evidence for proving genealogy and relationship. Reference may be also made to the decision of the Hon'ble Supreme Court in the case of Dolgobinda Paricha vs. Nimai Charan Misra, reported in AIR 1959 SC 914 . 11. Learned Lower Appellate Court has found that the plaintiffs have proved their relationship on the basis of the entry in survey record of rights as also by producing the P.Ws., who belong to the same KILLI and same family line and who have special means of knowledge. Their evidences are admissible and in accordance with the provision of Section 50 of the Evidence Act. The finding of fact arrived at by learned Lower Appellate Court being based on legal evidence, is binding in second appeal. 12. There is, thus, no substance in the submission of learned counsel for the appellants. Their evidences are admissible and in accordance with the provision of Section 50 of the Evidence Act. The finding of fact arrived at by learned Lower Appellate Court being based on legal evidence, is binding in second appeal. 12. There is, thus, no substance in the submission of learned counsel for the appellants. I find no error in the judgment and decree of the learned Lower Appellate Court, giving rise to any substantial question of law to be framed and decided in this second appeal. 13. This appeal is, accordingly, dismissed.