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2011 DIGILAW 40 (ORI)

Abdul Mazid Khan v. Abdul Rasid Khan

2011-01-18

B.N.MAHAPATRA, V.GOPALA GOWDA

body2011
JUDGMENT V. GOPALA GOWDA, C.J. — This Letters Patent Appeal has been preferred by the unsuccessful first defendant questioning the correctness of the judgment and decree passed by the learned Single Judge of this Court in F.A. No.179 of 1982 urging various facts and legal grounds to set aside the same and prayed for dismissal of the suit. Relevant brief facts as stated herein below for the purpose of meeting out rival legal contentions between the parties, for the sake of convenience rank of the parties assigned before the trial Court is adverted in this judgment. 2.The suit was filed by the deceased plaintiff-Abdul Rashid Khan claiming to be son of late Ramjan Khan and therefore he is entitled a share in the suit schedule property by originally impleading the first defendant as a party to the defendants. Subsequently, Pairan Bibi, wife of Sadat Ali and Maiman Bibi, wife of Kuanar Khan were impleaded as defendant Nos. 2 and 3 to the original suit proceedings. It is the case of the plaintiff that the plaintiff himself and the defendants are Muslims of Suni Sect and they are governed by Hanafi School of Mohammedan Law. 3.The case of the plaintiff is that Ramjan Khan, the father of the plaintiff and the first defendant died in the year 1949 leaving them as his two sons and Widow Sairun Nisa Bibi, who died on 15.08.1980. It is his further case that the properties described in schedule of property stands recorded in the name of Late Nawaj Khan, the grandfather of the parties and some of the properties also stand recorded in the name of Zahooran Bibi, the grandmother and some properties stand recorded in the name of Ramjan Khan which were acquired by them. It is the further case that after demise of Ramjan Khan and Zahooran Bibi, their only son, namely, the alleged father of the plaintiff, who is the son of Late Nawaj Khan, became the absolute owner of the property and after the death of Ramjan Khan and his widow Sairun Nisha Bibi, the plaintiff and the first defendant had become the owners of the properties being entitled to 8 anas share by each one of them. Since properties were not partitioned by metes and bounds, it is the parties who were in joint possession and enjoyment of the suit properties by way of mutual arrangement. Since properties were not partitioned by metes and bounds, it is the parties who were in joint possession and enjoyment of the suit properties by way of mutual arrangement. 4.It is alleged that since the first defendant was a very rowdy and influential person of the locality and that out of grudge and taking advantage of there being no partition was creating trouble in the peaceful possession of the properties by putting a deaf ear to the demand for partition of the same made by the plaintiff. Therefore, the suit was filed before the trial Court and it has passed a preliminary decree in favour of the plaintiff in respect of half share in the suit schedule properties and further directed to amicably partition the suit properties within the time fixed by the Court failing which the Commissioner of the Court would be deputed to prepare allotment in favour of the plaintiff. 5.After filing of the suit, and summon being served on the first defendant, he filed the written statement addressing the plaint averments, inter alia, contending that the suit filed by the plaintiff is not maintainable in law, as the relationship claimed by the plaintiff that he is one of the sons of Ramjan Khan is totally denied to be false and incorrect; and further stated that the suit is barred by limitation; and further stated that the suit is bad for non-joinder of necessary parties as two daughters (Maiman Bibi and Pairan Bibi) of Late Nawaj Khan and Zahooran Bibi were not impleaded in the suit. It is also further denied that the plaintiff was never in possession of the suit properties apart from denying that he has no right, title and interest over the same. Evaluation of the suit properties is also disputed. While addressing paragraph 3 of the plaint averments, it is specifically stated that Abdul Rashid Khan is not the son of late Ramjan Khan. He is the son of Raheman Khan. Nawaj Khan had two sons, namely, Ramjan Khan and Raheman Khan. The plaintiff is the son of Raheman Khan. According to Mohammedan Law, a grandson does no inherit the property of the grandfather in presence of a son of the grandfather. Raheman Khan predeceased Nawaz Khan in the year 1930. He is the son of Raheman Khan. Nawaj Khan had two sons, namely, Ramjan Khan and Raheman Khan. The plaintiff is the son of Raheman Khan. According to Mohammedan Law, a grandson does no inherit the property of the grandfather in presence of a son of the grandfather. Raheman Khan predeceased Nawaz Khan in the year 1930. Therefore, the plaintiff and his father do not inherit the suit schedule properties from Late Nawaj Khan; hence he has no right, title and interest over the suit properties. It is further pleaded by the first defendant that after the death of Nawaz Khan and his widow Jahooran Bibi, the suit properties have been inherited by Late Ramjan Khan and his two sisters namely Maiman Bibi and Pairan Bibi (hereinafter referred to as ‘D-2’ and ‘D-3’). 6.It is the further case of the first defendant that he inherited the properties left by Late Ramjan Khan and Sairun Nisha Bibi and further at paragraph 20 of the written statement, it has been specifically stated that Late Nawaj Khan and Jahooran Bibi died leaving one son, namely, Ramjan Khan and two daughters, i.e., D-2 and D-3. Raheman Khan died during life time of Nawaj Khan and Jahooran Bibi leaving his daughter, namely, Khairun Bibi, who predeceased her parents, namely, Nawaj Khan and Jahooran Bibi. 7.It is the further case of the first defendant that after death of Raheman Khan in the year 1930, his wife Gandei Bibi was conceived. The plaintiff is the posthumous child as he was borne after the death of his father. Thereafter, Gandei Bibi has remarried to one Matlub Khan of Mohiuddinpur and through him Gandei Bibi was blessed with one son, namely, Haidar Khan. It is the specific case pleaded by the first defendant that his father had 8 anas share in the suit schedule properties and D-2 and D-3 have got 4 anas each in the said properties. For the pleas narrated in the written statement, the first defendant has prayed for dismissal of the suit. 8.Though defendant Nos. It is the specific case pleaded by the first defendant that his father had 8 anas share in the suit schedule properties and D-2 and D-3 have got 4 anas each in the said properties. For the pleas narrated in the written statement, the first defendant has prayed for dismissal of the suit. 8.Though defendant Nos. 2 and 3 were subsequently impleaded to the suit proceedings and filed their written statement narrating certain facts with regard to their entitlement in the suit schedule properties, there is no need to advert to the said fact in view of the submission that they were married daughters of their grandfather and they have got 1/4 share each and therefore their averments made in their written statement is not extracted in this judgment. 9.On the basis of the pleadings, the trial Court has framed following issues:- (i)Is the suit maintainable as laid? (ii)Has the plaintiff any cause of action against the defendant? (iii)Is the plaintiff son of late Ramjan Khan or not? (iv)Is the suit bad for mis-joinder and non-joinder of parties? (v)Has the plaintiff any right, title and interest over the properties and whether the plaintiff is entitled to the relief(s) sought for? 10.Suit going for trial on behalf of the plaintiff nine witnesses were examined and proved some documents which were marked as Exts. 1 to 12 in support of his case; whereas first defendant examined 12 witnesses and proved some documents which were marked as Exts. ‘A’ to ‘T’ series, ‘V’ series and ‘W’ series. Defendant Nos. 2 and 3 have examined D-3 and DW-1. In justification of the respective claims of the parties, the trial Court on appreciation of evidence on record answered the contentious issues in favour of the plaintiff including the issue Nos. 3 and 5 holding that the plaintiff being one of the sons of deceased Ramjan Khan has got right, title and interest over the suit properties and accordingly passed a preliminary decree assigning 5 anas 2 piece each in favour of the plaintiff and the first defendant; and D-2 and D-3 are entitled to the balance 5 anas together. Properties belonging to Sl. Nos. 15, 16 and 17 of the schedule of properties being separate property are to be excluded from partition. Properties belonging to Sl. Nos. 15, 16 and 17 of the schedule of properties being separate property are to be excluded from partition. By placing strong reliance upon the documentary evidence, viz., Ext.3 and Ext.11, certified copy of voter lists produced by the plaintiff, learned trial Court rejected the case pleaded by the first defendant. 11.Aggrieved by the said judgment and decree, the first defendant preferred First Appeal bearing F.A. No.179 of 1982 urging various legal grounds and prayed for setting aside the impugned judgment and decree and dismissal of the suit as well. Learned Single Judge of this Court in exercise of its appellate jurisdiction has concurred that the finding recorded by the learned trial Court on the contentious issues in favour of the plaintiff for different reasons placing strong reliance upon oral evidence adduced by the first defendant, who has been examined as DW-11 and passed judgment. The correctness of the said judgment and decree dated 24.03.1994 is questioned in this Letters Patent Appeal under Rule 2(a), Chapter-VIII of Orissa High Court Rules, 1948 seeking for setting aside of the same and dismissal of the suit urging various grounds. 12.Mr. Sahu, learned counsel placed strong reliance on decision of the Hon’ble Supreme Court in Smt. Asha Devi v. Dukhi Sao & Anr., AIR 1974 SC 2048 and also a judgment of this Court reported in Jagabandhu Senapati & Ors V. Bhagu Senapati & Ors., 1973 (1) CWR 809 in support of the proposition of law that the power of a Division Bench hearing a Letters Patent Appeal under Cl.10 from the judgment of a single Judge in first appeal is not limited only to a question of law under Section 100, C.P.C., but it has the same power which the learned Single Judge has as a first Appellate Court in respect of both questions of fact and of law. The limitations on the power of the Court imposed by Ss. 100 and 101, Civil P.C. cannot be made applicable to an Appellate Court hearing a Letters Patent Appeal for the simple reason that a learned Single Judge of the High Court is not a Court subordinate to the High Court. This view has been taken by the apex Court on the basis of the Constitution Bench decision in Alapati Viswanatham v. A. Sivarama Krishnayya, CA No.232 of 1961 decided on 11.01.1963 (SC). This view has been taken by the apex Court on the basis of the Constitution Bench decision in Alapati Viswanatham v. A. Sivarama Krishnayya, CA No.232 of 1961 decided on 11.01.1963 (SC). Therefore, the learned counsel submits that it is not the substantial question of law which requires to be answered, i.e., this Court’s power of re-appreciation of pleadings and evidence on record to find out correctness of certain finding recorded by the learned Single Judge on the contentious issues upon which he has answered in favour of the plaintiff by a concurrent finding and reasons recorded in favour of the plaintiff and also further invited our attention to the evidence of DW-1, the paternal aunt of the plaintiff, whose evidence is placed reliance to record the finding and reasons in support of the conclusion arrived at by the learned Single Judge while answering contentious issue No.3 to hold that the plaintiff is the son of Ramjan Khan. Therefore, he has held that the suit filed by him (plaintiff) for partition asking share in the said suit properties is maintainable. The said contention vis-a-vis finding and the reasons is seriously contested by learned counsel for the first defendant placing strong reliance upon the decision of the Hon’ble Supreme Court with regard to the burden of proof in Moran Mar Basselios Chatholicos & Anr., v. Most Rev. Mar Poulose Athanasius & Ors., AIR 1954 SC 526 , wherein fact pleaded by the plaintiff that he is the son of Ramjan Khan is seriously disputed in support of this plea; the plaintiff is required to produce substantive evidence on record to prove that he is the son of Ramjan Khan and therefore he has got right, title and interest in the schedule of properties for seeking assignment of share in the suit for partition. It is further contended that both the learned trial Judge and the learned Single Judge of this Court in exercise of their original and appellate jurisdiction respectively have erroneously recorded the finding on contentious issue No.3 ignoring the material documentary evidence, i.e., Ext.-9, the application for renewal of gun license in his favour for the year 1981-83 submitted to the District Magistrate, which is a public document, wherein the plaintiff has been described as son of Kunara Khan and further strong reliance is placed upon the admission of the cross-examination portion of the plaintiff and the answer received from him in the cross-examination before the trial Court. Therefore, the non-consideration of the positive as well as legal evidence on record to show that the plaintiff is the son of Kunara Khan has been conveniently ignored both by the trial Court as well as the first appellate Court while recording the finding on the contentious issue. No doubt, the first appellate Court while dealing with contentious issue No.3 came to the same conclusion in support of the plaintiff’s case for different reasons placing strong reliance upon the evidence of DW-1 (Parian Bibi examined on behalf of defendants 2 and 3); therefore, the said concurrent finding of fact is erroneous in law; and hence the same is liable to be set aside. This Court has power to re-appreciate the evidence, in view of the decision of the Hon’ble Supreme Court as well as this Court referred to supra on this point and further it is contended by the learned counsel for the first defendant that the initial burden of proof upon the plaintiff has not been discharged by him to prove the fact by producing cogent evidence that he is the son of Ramjan Khan. Unless that burden is discharged to prove the fact that he is the son of Ramjan Khan the same does not shift on the first defendant as contended by the learned counsel and further learned counsel for the first defendant placed strong reliance on the aforesaid decision of the apex Court in support of the proposition of law that a party cannot place reliance upon the case of other side to show that he has established his claim and further placing strong reliance upon the decision of the apex Court in Sital Parshad & anr. v. Kishori Lal; AIR 1967 SC 1236 , in support of the proposition of law that generally speaking the decree of the appellate Court supersedes the decree of the trial Court even when it confirms the decree and therefore it is well settled that only the appellate Court can amend the decree thereafter: (see Muhammad Sulaiman Khan v. Muhammad Yar Khan, (1888) ILR 11 All 267 (FB). It is equally well settled position of law that where an appeal has been taken from a preliminary mortgage decree and is decided, the time for preparation of final decree is three years from the date of the appellate decree even though the appellate Court may not have extended the time for payment provided in the preliminary decree where no final decree has been prepared in between and further made an observation in the said case where an appellate Court sets aside or varies a preliminary decree it can and indeed should, give direction for the setting aside or varying of the final decree, if the existence of the final decree is brought to its notice as in all cases it ought to be. (see Talebali v. Ahdul Aziz, AIR 1929 Cal 689 FB). Strong reliance is rightly placed upon the aforesaid decision of the Hon’ble Supreme Court in support of the case of the first defendant. Reliance on the decision of the Supreme Court in Sital Prasad (supra) and of course a Single Bench decision of this Court in Smt. Charu Pattnaik Vs. Commissioner, Land Records and Settlement, Orissa, Cuttack & Ors., 2007 (II) OLR 237 was placed by the first defendant’s counsel in support of the contention that this appeal was admitted and subsequently dismissed for default and in the meanwhile subsequent event which had taken place drawing the final decree, it is of course by metes and bounds possession of the properties has not been delivered and not put to the parties in possession and therefore he submits that the said final decree proceedings are subject to the judgment that would be passed in this appeal. 13.Learned counsel for the plaintiff/respondent Mr. Pattnaik has sought to justify the correctness of the finding and reasons recorded on the contentious issues, particularly, issue Nos. 13.Learned counsel for the plaintiff/respondent Mr. Pattnaik has sought to justify the correctness of the finding and reasons recorded on the contentious issues, particularly, issue Nos. 3 and 5, placing strong reliance upon the reasons recorded and finding arrived at by the trial Court on the aforesaid contentious issues which have been concurred by the learned Single Judge of this Court in exercise of its appellate jurisdiction. No doubt, he has concurred with the conclusion and findings recorded by him for different reasons with reference to the oral evidence of DW-1 wherein she has spoken on the fact that the plaintiff is a son of Ramjan Khan and she was the witness to the birth of plaintiff to Ramjan Khan through his wife, Sairun Nisha Bibi. Therefore, the said finding of fact recorded by the first appellate Court in the impugned judgment is neither shown to be erroneous nor does it require interference by this Court in exercise of the letters patent appeal jurisdiction. Further, it is contended by the learned counsel placing strong reliance upon the written statement filed by the first defendant, who has pleaded therein that plaintiff is the son of Rehman Khan and not the son of Ramjan Khan and further in his evidence he has stated that plaintiff is the adopted son of Kuanar Khan and his wife Maimun Bibi; and the adoption is unknown to the Mohammedan Law, the first defendant is blowing hot and cold in support of his case. Therefore, the concurrent finding of the fact recorded, particularly on issue Nos. 2 and 3 by the first appellate Court is not shown to be erroneous. On the other hand, the same is based on legal evidence which cannot be interfered with by this Court. He has placed strong reliance on the decision of the Supreme Court to justify the correctness of the judgments of the trial Court and the first appellate Court on the basis of the principles enunciated by the apex Court in Shankar Ramachandra Abhyankar v. Krishnaji Dattatraya Bapat, AIR 1970 SC 1 and another judgment in Amba Bai & Ors. He has placed strong reliance on the decision of the Supreme Court to justify the correctness of the judgments of the trial Court and the first appellate Court on the basis of the principles enunciated by the apex Court in Shankar Ramachandra Abhyankar v. Krishnaji Dattatraya Bapat, AIR 1970 SC 1 and another judgment in Amba Bai & Ors. V. Gopal & Ors., 2001 OLR SC (Vol.2) 261 and also further placed strong reliance upon the decision of the Supreme Court in Life Insurance Corporation of India v. Smt. G.M. Channabasemma, AIR 1991 SC 392 regarding appreciation of evidence wherein apex Court with reference to Section 3 of the Evidence Act to appreciate the facts and evidence on record, it is observed that it is the domain of the trial Court. The Appellate Court’s jurisdiction is the extension of the original jurisdiction. It has got the every power to re-appreciate the evidence on record and recorded the finding of fact on the contentious issues, namely, issue Nos. 3 and 5. Therefore, the same do not call for interference by this Court in this case. In support of the said submission, he has relied upon two judgments, i.e., Standard Chartered Bank v. Andhra Bank Financial Services Ltd. and Ors., AIR 2006 SC 3626 and in Kartick Prasad Gorai & Ors. V. Neami Prasad Gorai & Ors., AIR 1998 Cal. 278 in support of the proposition of law that burden of proof has no significance. The significance in the instant case in view of the law laid down by Calcutta High Court in Kartick Prasad Gorai (supra) wherein it has been held that burden of proof has no significance when the parties have full knowledge of the respective cases having led evidence by them, i.e., what exactly has been done in the instant case. Therefore, he placed reliance in Moran Mar Basselios Chatholicos (supra) in fact situation of the instant case in support of the first defendant’s case and also placed reliance upon the evidence elicited in the cross-examination of the plaintiff wherein the plaintiff has not admitted that he is not the son of Kuanar Khan. Therefore, he placed reliance in Moran Mar Basselios Chatholicos (supra) in fact situation of the instant case in support of the first defendant’s case and also placed reliance upon the evidence elicited in the cross-examination of the plaintiff wherein the plaintiff has not admitted that he is not the son of Kuanar Khan. He has knowledge of application made by Kuanar Khan to the District Magistrate under the Arms Act for issuance of a gun license, it does not amount to that the plaintiff is the son of Kuanar Khan upon which reliance was placed on the above said documentary evidence by the first defendant. In the circumstance of this case, Section 74 of the Evidence Act, 1872 absolutely has no significance and it cannot be construed as admission on the part of the plaintiff that he is the son of Kuanar Khan and the same does not support the case of first defendant. But on the other hand, he submits that the learned Single Judge after re-appreciation of evidence under Section 3 of the Evidence Act, has examined the correctness of the findings of fact recorded by trial Judge on the contentious issues with reference to the legal evidence and rightly concurred with the findings and therefore the same cannot be termed as either erroneous or error of law. Hence, the same need not be interfered with by this Court in exercise of its letters patent appeal jurisdiction. 14.With reference to the aforesaid rival legal contentions, following points fall for consideration of this Court. (i)Whether the concurrent finding of fact recorded by the first appellate Court on the contentious issue No.3 regarding maintainability of the suit, i.e., plaintiff is son of Ramjan Khan, is legal and valid? (ii)Whether the concurrent finding of fact recorded by the first Appellate Court on issue Nos. 1, 2, 3 & 5 are legal and valid? (iii)If answer to point No.1, as formulated in the impugned judgment by the first appellate Court, is not on proper re-appreciation of legal evidence on record, what decree is to be passed in this Appeal? 15.The first point as well as the second are required to be answered in favour of the first defendant for the following reasons. It would be necessary for this Court to refer to the pleadings in this regard. 15.The first point as well as the second are required to be answered in favour of the first defendant for the following reasons. It would be necessary for this Court to refer to the pleadings in this regard. The specific pleading of the plaintiff taken in the plaint is that he is the son of Ramjan Khan. Here genealogy of the family is required to be extracted for proper appreciation of the claims of the parties with reference to the rival legal contentions. The definite case pleaded by the plaintiff in the plaint is that he is the son of Ramjan Khan, which fact is specifically denied by the first defendant in his written statement. Therefore, the trial Court has rightly framed issue No.3 on fact, which reads this ‘Is the plaintiff son of late Ramjan Khan or not?’ The fact pleaded by the plaintiff in the plaint was required to be proved by him before the trial Court substantially in pursuance of the principle underlined in Section 101 of the Evidence Act. The burden is on the plaintiff to prove the fact that he is the son of late Ramjan Khan by producing cogent evidence on record. To prove the said fact, he has not only adduced oral but also documentary evidence, viz., Exts. 3 and 11, certified copy of voter lists and Ext.9, copy of the application for renewal of gun license for the year 1981 to 1983 submitted to the District Magistrate by the plaintiff, is the finding recorded by the trial Court in its judgment. But trial Court has recorded the erroneous finding of fact in favour of the plaintiff on the contentious issue No.3 holding that he is the son of Ramjan Khan placing reliance on the voter lists, wherein the plaintiff has been described as son of Ramjan Khan. Without considering Ext.9 and admission made by the plaintiff in his cross-examination, the trial Court was required to consider the entire evidence on record and it ought to have recorded the finding on the above contentious issue, but it has not done so as it has omitted to consider the documentary evidence, i.e., Ext.9. It is necessary for this Court to refer to the evidence adduced by the first defendant before the trial Court in support of his case that the plaintiff is not the son of Ramjan Khan. It is necessary for this Court to refer to the evidence adduced by the first defendant before the trial Court in support of his case that the plaintiff is not the son of Ramjan Khan. In support of this, the first defendant has produced documentary evidence, viz., Ext.C and Ext.C/1, the counterfoil of the transfer certificate dated 02.07.1946 and the writing along with signature of Kuanar Khan, to prove the contents of the above exhibited documents, the first defendant has examined DW-3. The above documents Ext.C & C/1 are the counterfoil of the transfer certificate, under Section 35 of the Evidence Act, the contents of the documents have been proved by the first defendant before the trial Court by examining the DW-3; therefore the said legal evidence should have been considered by the trial Court while answering the contentious issue No.3 keeping in view the relevance of the said entries in public record maintained by the School authority, which is the relevant fact regarding the relationship claimed with Ramjan Khan by the plaintiff and they have got evidentiary value and therefore the same should have been considered by the trial Court and the learned Single Judge. It is an undisputed fact that the plaintiff was admitted in the School, in the admission register maintained by it his name is entered and issued by the certificate as per Ext.C and wherein the Ext.C/1 contents signature of Kaunar Khan who is described as father of the plaintiff. Further, the gun license produced by the first defendant as Ext.H at Sl. No.1499 page 94, which is very much available before the trial Court record. Insofar as the document Ext.H is concerned, it is a public document. As per Section 74 of the Evidence Act, as the entries made in the register maintained by the District Magistrate for issuing gun license under the provisions of the Arms Act the license was issued and the same was renewed in the name of Kuanar Khan or in the name of the plaintiff, but the same is entered by the District Magistrate in the register maintained for this purpose in exercise of his statutory power under the Arms Act and Rules made thereunder and therefore those are public documents. Non-consideration of this material and substantive piece of legal evidence on record by both the trial Court and learned Single Judge, which documents would show that during the relevant period of time, i.e., 1961 onwards till 1970-71, the entries made under Ext.H clearly disclose the fact that the plaintiff’s name is described as son of Kuanar Khan. The documentary evidence of Ext.H., entries in the register for issuing the gun license in the name of plaintiff showing him as son of Kaunar Khan is admitted by the plaintiff in the cross-examination, the relevant portion of which reads thus: “12. I have never stayed in the house of Kunar Khan. I have not applied for gun license. Kunar Khan had applied for gun license in my name. I have not signed in the application for gun license. I have not seen the application. I got the gun license in the year 1964. Ever since 1964, I am renewing the gun license till now. I have not filed any application before the Collector to change the father’s name from Kunar Khan to Ramjan Khan. While depositing the license fee vide challan I am describing myself as the son of Kunar Khan.” The above important admission elicited in the cross-examination of the plaintiff who was examined as a witness before the trial Court by the first defendant’s counsel is read along with the undisputed documents produced as Ext.H coupled with Ext.C and Ext.C/1 and these documents would evidence the fact that the plaintiff has accepted that he is the son of Kuanar Khan. The above said material this material and substantive evidence on record in favour of the first defendant to show that plaintiff is not the son of Ramjan Khan has been conveniently omitted both by the trial Court as well as the first appellate Court at the time of answering the contentious issue No.3. The reliance placed on the oral evidence of DW-1, the paternal aunt of the first defendant with reference to evidence given by her that she was in the maternity home at the time of birth of the plaintiff could not have been relied by the first Appellate Court on the oral evidence of the above said witness when documentary evidence was there in favour of the first defendant as he had pleaded stating that the plaintiff is not the son of Ramjan Khan. 16.In our considered view though the finding on the contentious issue is concurrent as recorded by the first appellate Court’s Judge, the same is vitiated as erroneous as he has re-appreciated the oral evidence of DW-1 ignoring the documentary evidence on record referred to supra. For the aforesaid reason, the impugned judgment of the first appellate Court is liable to be set aside as the concurrent finding on the contentious issue No.3 is erroneous in law. With regard to other issues, we hold that assigning of 5 anas share, as decreed by the trial Court in the impugned judgment, is also erroneous and insofar as the plaintiff is concerned, as he is not the legal heir of Ramjan Khan, therefore, he is not entitled to any share and to that extent the impugned judgment is liable to be set aside. Even though the suit filed by the plaintiff is liable to be dismissed and further having regard to the relationship of D-2 and D-3 that they are paternal aunts who are entitled to 1/4th share in the suit schedule property though they have not got transposed either in the trial Court or before the first appellate Court or before this Court as the plaintiff. Having regard to the jurisdiction and power in the Letters Patent Appeal we have considered their rights and granted relief in their favour. Therefore, having regard to the relationship between D-1, D-2 and D-3, undisputedly D-2 and D-3 having 1/4th share in the suit schedule properties and they were not being transposed since the schedule of properties are properties of Nawaj Khan but it would be just and proper on the part of this Court to interfere with the sharing of the suit schedule of property between defendant Nos. 1, 2 and 3. In this view of the matter, the impugned judgment is set aside insofar as the assignment of share to the plaintiff and pass the following judgment by modifying the shares to them. 17.The defendant No.1 is entitled for 3/4th share and 1/4th share between D-2 and D-3. With the aforesaid terms this Appeal is allowed. 1, 2 and 3. In this view of the matter, the impugned judgment is set aside insofar as the assignment of share to the plaintiff and pass the following judgment by modifying the shares to them. 17.The defendant No.1 is entitled for 3/4th share and 1/4th share between D-2 and D-3. With the aforesaid terms this Appeal is allowed. Placing reliance upon the judgment of the Supreme Court in Sital Parshad (supra), the final decree proceeding are set aside and direct to draw the final decree required in the above terms as the impugned judgment of the learned Single Judge is set aside insofar as it relates to the findings recorded in favour of the plaintiff on contentious issue No.3 holding that he is entitled for the share in the suit schedule properties. The trial Court is directed to reassign the share of the parties in respect of the schedule properties by drawing the final decree on the basis of this judgment and appoint a Court Commissioner to divide the properties by metes and bound and put them in possession of their respective shares of the properties that would be allotted in their favour. B. N. MAHAPATRA, J.I agree. Appeal allowed.