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2011 DIGILAW 946 (JHR)

Rajendra Prasad Sahu v. Kamla Devi

2011-10-12

N.N.TIWARI

body2011
JUDGMENT This second appeal is against the judgment and decree of learned rd Additional Judicial Commissioner, Ranchi passed in Title Appeal No.68 of 2005 whereby said learned lower appellate court has dismissed the appellant's appeal and upheld the judgment and decree of learned Sub-Judge-II, Ranchi passed in Partition Suit No.108 of 2001. 2. The appellant was the plaintiff. He had filed the said Partition Suit No.108/2001 seeking partition of 8 Annas' share in the suit property described in Schedule-C to the plaint. 3. The original plaintiff Smt. Makhola Devi, mother of the appellant, died during pendency of the suit and the present appellant was substituted after her death. 4. The plaintiff's case was that one Tara Deo Sahu was the common ancestor of the parties. He had a full brother namely Bihari Sahu. Bihari Sahu died prior to 1929 leaving behind Kanhai Sahu as his only son and legal heir. Kanhai Sahu also died, thereafter. He was issueless. Tara Deo Sahu subsequently died leaving his two sons namely Dharma Nath Sahu and Chandra Nath Sahu. Dharma Nath Sahu died issueless. In course of time Chandra Nath Sahu also died leaving behind his two sons namely Nand Kishore Sahu and Parmeshwar Sahu and one daughter namely Makhola Devi who was the original plaintiff. Nand Kishore Sahu died issueless and Parmeshwar Sahu died leaving behind his widow Kamla Devi and sons and daughters -who are the defendants. The suit properties, described in Schedule-A and Schedule-B to the plaint, were the joint ancestral properties of the plaintiff and the defendants. After the death of recorded tenant -Kanhai Sahu, the suit property devolved upon Dharma Nath Sahu and Chandra Nath Sahu. Subsequently, after death of Dharma Nath Sahu his interest in the suit property devolved upon his brother Chandra Nath Sahu who died in the year 1960. After death of Chandra Nath Sahu the properties in the suit were jointly inherited by the plaintiff and her brothers Nand Kishore Sahu and Prameshwar Sahu. After the death of Parmeshwar Sahu his interest in the suit property devolved upon the plaintiff and the defendants. Nand Kishore Sahu, during his life time, had made gift of land measuring 1 Katha 9 Chataks of M.S. Plot No.507/A and 508 carved out from the old Municipal Holding No.74 of Ward no.IV of Ranchi Municipality. The said Gift was accepted by Makhola Devi – the original plaintiff. Nand Kishore Sahu, during his life time, had made gift of land measuring 1 Katha 9 Chataks of M.S. Plot No.507/A and 508 carved out from the old Municipal Holding No.74 of Ward no.IV of Ranchi Municipality. The said Gift was accepted by Makhola Devi – the original plaintiff. She had come in the possession of the said property. She had subsequently sold the said property to the purchaser. The plaintiff had got half share in the property excluding the said gifted property. The plaintiff requested the defendants to partition the suit property but they denied. Hence, the said suit was filed. 5. The defendants appeared and filed their written statements contesting the plaintiff's suit. It was, inter alia, stated by them that there was no unity of title and possession between the parties and that the suit is barred by limitation and adverse possession. Dharma Nath Sahu had no issue. He died in the year 1940. Chandra Nath Sahu died in the year 1948 and Kanhai Sahu died in the year 1954. The plaintiff, who claimed share in the property being the daughter of Chandra Nath Sahu, has no right to claim partition as said Chandra Nath Sahu had died before coming into force of Hindu Succession Act, 1956. The plaintiff's suit is, thus, not maintainable and is liable to be dismissed. 6. On the basis of the said pleadings, several issues were framed by learned trial court. 7. Both the parties led their evidences – oral and documentary. 8. The main contest between the parties was regarding the date of death of Chandra Nath Sahu. Learned trial court framed Issue No.7 to that effect. 9. Learned trial court, on thorough appraisal of the facts and evidences on record, came to the finding that Chandra Nath Sahu died in the year 1948. Trial court further held that since Chandra Nath Sahu died before coming into force of Hindu Succession Act, 1956, the plaintiff was not entitled to get any share in the property and the claim of partition of the suit property is not maintainable. Learned trial court decided almost all material issues against the plaintiff and dismissed the suit. 10. Against the said judgment and decree of learned trial court the plaintiff-appellant preferred appeal being Title Appeal No.68 of 2005. The said appeal was finally heard and decided by learned 3rd Additional Judicial Commissioner, Ranchi. 11. Learned trial court decided almost all material issues against the plaintiff and dismissed the suit. 10. Against the said judgment and decree of learned trial court the plaintiff-appellant preferred appeal being Title Appeal No.68 of 2005. The said appeal was finally heard and decided by learned 3rd Additional Judicial Commissioner, Ranchi. 11. Learned Lower Appellate Court heard the parties and discussed the facts and evidences on record. On thorough scrutiny and appraisal of the evidences, learned lower appellate court has independently recorded his finding holding that the respondent has been able to establish that Chandra Nath Sahu died in the year 1948 i.e. before 1956 and, as such, the plaintiff-appellant is not entitled to get any share in the property and not entitled to any relief claimed for. Learned lower appellate court, thus, concurred with the findings of facts arrived at by learned trial court and dismissed the appeal. 12. In this second appeal, the appellant has sought to assail the impugned judgment and decree on the ground that learned trial court has not properly appreciated the evidences adduced by the plaintiff and has unnecessarily given much weight to the inadmissible evidences. Learned courts below have recorded their findings on the assumptions and insufficient evidences and the same is perverse and unsustainable. Learned lower appellate court has committed further error in his finding by unnecessarily relying on an affidavit shown by the original plaintiff Makhola Devi dated 7.8.1989. The said affidavit has got no evidentiary value, but much reliance has been placed by learned lower appellate court on the said inadmissible evidence. 13. I have heard learned counsel for the appellant as well as learned counsel appearing for the respondents. I also perused the impugned judgments of learned courts below. I find that learned trial court as well as learned lower appellate court have thoroughly discussed the evidences on record and have appreciated the same in right perspective. The findings arrived at by them are based on due appraisal of evidences and materials on record. It has been concurrently held by both the courts that Chandra Nath Sahu died in the year 1948 and Makhola Devi who claimed to be the daughter of Chandra Nath Sahu had, thus, no right of inheritance or any share in the suit property. 14. I find no error in the said findings of learned courts below. 15. It has been concurrently held by both the courts that Chandra Nath Sahu died in the year 1948 and Makhola Devi who claimed to be the daughter of Chandra Nath Sahu had, thus, no right of inheritance or any share in the suit property. 14. I find no error in the said findings of learned courts below. 15. So far as the affidavit sworn by Makhola Devi is concerned, the same has been considered as one of the pieces of evidence. Admittedly, Makhola Devi died during pendency of the suit much before the appreciation of the said affidavit sworn by her. In the said affidavit she had made statement that she had got land by virtue of gift and that she had no share in the property. The said statement was against her claim made in the instant suit. That statement in the said affidavit is relevant fact as the same was made by Makhola Devi, who was dead before the said document was exhibited by the defendants. Such statement is admissible in accordance with the provision of Section 32 of the Evidence Act. I, therefore, find no illegality in the conclusion of learned courts below giving rise to any substantial question of law. 16. I, therefore, find no merit in this second appeal. This appeal is, accordingly, dismissed.