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2011 DIGILAW 681 (JHR)

Mosomat Phulmani v. Kodan Choudhary

2011-07-15

PRASHANT KUMAR

body2011
JUDGMENT Prashant Kumar. J. 1. This appeal is directed against the judgment dated 14.8.1991 passed by VIth Additional District Judge, Palamau at Daltonganj in Title Appeal No. 32 of 1989 whereby he reversed the judgment of Sub Judge-III. Daltonganj dated 22.5.1989 in partition suit No. 9 of 1985 whereby Sub Judge was pleased to dismiss the suit. 2. The facts giving rise to this appeal in brief is that Gokhul Noniya has two sons and two daughters, namely, Deoki Nonia, Laljee Nonia, Gauri Devi and Muner Devi. It is further stated that plaintiff/respondent No. 1 is the son of Deoki Nonia, whereas defendants are descendants of Laljee Nonia. It is stated that after the death of Gokhul Nonia sometime in the year 1930, his estate devolve in between Deoki Nonia and Laljee Nonia. Thus Deoki Nonia and Laljee Nonia were entitled to get half share in the property of Gokhul Noniya. It is stated that Deoki Nonia died leaving behind plaintiff and defendant Nos. 17 to 24. However, aforesaid defendants 17 to 24 had relinquished their share in favour of plaintiff, thus the plaintiff become the sole owner of the half share of properties devolve by succession in Deoki Nonia. Accordingly, present suit filed for partition claiming half share in the said properties details of which given in schedule A to the plaint. 3. It appears that the defendant Nos. 1, 2, 3, 5, 6, and 11 to 16 had filed joint written statement and it is stated that Deoki Nonia is not the son of Gokhul Noniya rather he is son of Ramsunder Nonia of Village Khamdhi P.S. Daltonganj, District, Palamau. Accordingly, it is stated that after the death of Gokhul Noniya in the year 1936 his widow Jaso Kuer and only son Laljee Nonia inherited his property. It is wrong to say that Gokhul Nonia died in the year 1930 in the state of jointness with Deoki Nonia. Accordingly, it is pleaded by the contesting defendants that Deoki Nonia and his dependents, namely plaintiff and defendant Nos. 17 to 24 are not entitled to get any share in the suit property. 4. The record shows that defendant No. 17 to 24 also filed a written statement and they supported the case of plaintiff/ respondent. 5. It then appears that in the trial Court, both the parties adduced oral and documentary evidence in support of their case. 17 to 24 are not entitled to get any share in the suit property. 4. The record shows that defendant No. 17 to 24 also filed a written statement and they supported the case of plaintiff/ respondent. 5. It then appears that in the trial Court, both the parties adduced oral and documentary evidence in support of their case. The trial Court (Sub Judge-III, Daltonganj) vide its judgment dated 22.5.1989 dismissed the suit on contest with cost. Thereafter plaintiff/respondent filed appeal i.e. Title Appeal No. 32 of 1989 and the same was allowed by the impugned judgment. Against that the present appeal filed. 6. It appears that vide order dated 24.7.1992 this appeal admitted on the following substantial question of law : A. Whether the learned lower appellate Court could have reversed the judgment and decree passed by the trial Court without assigning its own reason? B. Whether the learned lower appellate Court erred in deciding the question of relationship without considering the evidence in the light of Section 50 of the Evidence Act? 7. It is submitted by Sri Manjul Prasad, learned Senior Advocate appearing for the appellant, that learned trial Court had not assigned any reason as to why it reversed the finding of trial Court. It is submitted that the trial Court had given good reason for not accepting the documentary evidence adduced by the plaintiff, but the appellate Court without assigning any reason had accepted said documents. Therefore the learned appellate Court had committed serious illegality by reversing the judgment of the trial Court. It is further submitted that the learned appellate Court had not appreciated evidences in the light of Section 50 of the Evidence Act. Accordingly it is submitted that the impugned judgment and decree cannot be sustained in this appeal. 8. On the other hand, Sri Bhaiya Bishwajeet Kumar appearing for the plaintiff/respondent submits that the learned appellate Court considered oral evidence adduced by the party in the light of provision contained under Section 50 of the Evidence Act, which manifest from the finding of appellate Court at paragraph Nos. 10 to 14. 8. On the other hand, Sri Bhaiya Bishwajeet Kumar appearing for the plaintiff/respondent submits that the learned appellate Court considered oral evidence adduced by the party in the light of provision contained under Section 50 of the Evidence Act, which manifest from the finding of appellate Court at paragraph Nos. 10 to 14. It is submitted that in the aforesaid paragraphs, learned appellate Court had given its own reason for accepting the evidence adduced on behalf of plaintiff/ respondent and on thorough discussion came to the conclusion that the finding of the trial Court that Deoki Nonia was not the son of Gokhul Noniya is not sustainable. It is submitted that the appellants, in the garb of aforesaid substantial questions of law, want that this Court will re-appreciate the evidence, which is beyond the scope of Second Appeal. Accordingly, it is submitted that the present Second Appeal is liable to be dismissed. 9. Having heard the submission, I have gone through the record. From perusal of impugned judgment, I find that the learned appellate Court at paragraph No. 10 of the judgment had stated that since the question to be decided in this appeal is whether Deoki Nonia, (father of plaintiff/ appellant), was the son of recorded tenant Gokhul Noniya and as there is no direct oral evidence to prove aforesaid relationship, it is incumbent upon the Court to form an opinion regarding the relationship as per the provision contained under Section 50 of the Evidence Act. It appears that the learned appellate Court had discussed the scope of the provision contained under Section 50 of the Evidence Act and proceeded to consider the evidence adduced on behalf of parties in that regard. It further appears that learned appellate Court after discussing the evidence of PW 2. PW 3, PW 4 and PW 7 had given a finding that they had special knowledge about the relationship of Gokhul Noniya with Deoki Nonia. accordingly the learned appellate Court below came to the conclusion at the end of paragraph No. 11 of its judgment that the oral evidence of aforesaid witnesses is relevant to prove the relationship of Deoki Nonia with Gokhul Nonia under Sections 50 and 60 of the Evidence Act. 10. accordingly the learned appellate Court below came to the conclusion at the end of paragraph No. 11 of its judgment that the oral evidence of aforesaid witnesses is relevant to prove the relationship of Deoki Nonia with Gokhul Nonia under Sections 50 and 60 of the Evidence Act. 10. From perusal of paragraph No. 12 of the impugned judgment, I find that the learned Court below considered documentary evidence adduced oh behalf of the plaintiff and after examining Exts.-3, 4, 5, 6, and 7 held that all the documents show that Deoki Nonia and Laljee Nonia are sons of Gokhul Noniya. At paragraph No. 13 of the impugned judgment, the learned Court below considered the oral evidence of D.W. 1, D.W. 2, D.W. 3. D.Ws. 4, 5, 6, 7, 8, 9. and 12 and concluded that their evidences with regard to relationship of Deoki Nonia with Gokhul Nonia are not in consonance with Section 50 of the Evidence Act. The learned Court below had given finding that D.W. 2 in para 30 of his cross-examination admitted that Deoki Nonia and Laljee Nonia were brothers. So far D.W. 3 is concerned, appellate Court said that this witness have no special means of knowledge with regard to relationship of Deoki with Gokhul. The appellate Court below further held that D.W. 4 not stated anything about the relationship of Deoki with Gokhul. So far D.W. 5 is concerned, the appellate Court below again come to the conclusion that this witness had no special knowledge about the family of Gokhul Noniya. So far D.Ws. 6 and 7 are concerned, it is stated that they are hearsay witnesses, it is stated by learned appellate Court that D.W. 8 has not stated anything about the special means of knowledge regarding the relationship of Deoki with Gokhul. So far D.W. 9 is concerned, it is stated that at paragraph No. 5. she stated that after the death of Gokhul Noniya, Deoki Nonia performed last rituals. Thus she admitted that Deoki is son of Gokhul. D.W. 12 had accepted at paragraph 21 that he has no personal knowledge that the Deoki was the son of Sunder. D.W. 13 is defendant No. 16 himself. 11. she stated that after the death of Gokhul Noniya, Deoki Nonia performed last rituals. Thus she admitted that Deoki is son of Gokhul. D.W. 12 had accepted at paragraph 21 that he has no personal knowledge that the Deoki was the son of Sunder. D.W. 13 is defendant No. 16 himself. 11. From paragraph No. 14 of the judgment, I find that learned appellate Court had considered the documentary evidence adduced by the defendants and after considering the same had given a definite finding that the said documents are not relevant for deciding the parentage of Deoki Nonia. 12. Thus from perusal of the impugned judgment, I find that the learned appellate Court below thoroughly discussed evidence, keeping in view Section 50 of the Evidence Act. I also meticulously examined oral and documentary evidences adduced by both the parties and found that the reason given by the appellate Court below are correct and does not require any interference. 13. The documentary evidence adduced by the plaintiff/respondent No. 1 are public documents and the same were exhibited without any objection. Under the Evidence Act, there is a presumption of genuineness of public document unless the same is proved otherwise. In the instant case defendants/appellants had not adduced any evidence to show that Exts.-3, 4, 5, 6 and 7 are forged and fabricated documents. The learned trial Court (Sub Judge -III, Daltonganj) had rejected the said documents on irrelevant ground. Ext.-III is certified copy of Register-II which was prepared by the Government officials as per provisions contained under Section 3 of Bihar Tenant's Holdings (Maintenance of Records), Act. As per the aforesaid provision. Circle Officer prepares Register -II on the basis of name of raiyats find place in survey khatiyan. There is provision in the aforesaid Act for raising objection against the wrong entry, but in the instant case, there is nothing on record to show that any objection raised by defendant/appellant. Under the said circumstance, finding of; learned trial Court appears to be misconceived. Ext.-4 and 5 were discarded by the trial Court by saying that the same were prepared on the basis of information given by Deoki Nonia. Defendants brought no evidence to impeach Exts.-4 and 5. It is wroth mentioning that in a mutation proceeding, father of defendants/appellants admitted that Deoki Nonia is son of Gokhul Nonia. Ext.-4 and 5 were discarded by the trial Court by saying that the same were prepared on the basis of information given by Deoki Nonia. Defendants brought no evidence to impeach Exts.-4 and 5. It is wroth mentioning that in a mutation proceeding, father of defendants/appellants admitted that Deoki Nonia is son of Gokhul Nonia. Ext.-6 is the certified copy of that mutation proceeding, but learned trial Court refused to accept the same by saying that it is not clear who admitted aforesaid fact. Since the case is in between Laljee Nonia and plaintiff, therefore, it is presumed that the same was admitted by the parties of that case. Thus the aforesaid finding of learned trial Court also appears to be incorrect. The learned trial Court had rejected Ext-7, certified copy of khas mahal continous khatiyan, by saying that there is no correction in the Ext-G filed by the defendants. In this respect, it is worth mentioning that Ext.-7 and Ext.-G are certified copies of khatiyan of different villages. Ext.-G relates to village-Tawar, whereas Ext.-7 relates to village-Rajderba. Thus, aforesaid findings given by learned trial Court are without application of mind. 14. Under the said circumstance, I find that in fact trial Court had not appreciated evidence correctly. I further find that learned appellate Court after re-appreciating the evidence had rightly concluded that Deoki Nonia was the son of Gokhul Nonia. 15. 1 find that learned appellate Court assigned sound and valid reasons for reversing the judgment and decree of the learned Court below. I further find that the learned lower appellate Court decided the question of relationship after appreciating the evidence in the light of Section 50 of the Evidence Act. 16. In view of the discussions made above, I find no merit in this appeal, the same is dismissed. However parties shall bear their own cost Appeal dismissed.