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2012 DIGILAW 664 (PAT)

Ganesh Kumar v. Raghunath Sah and Sushila Devi

2012-04-23

SHAILESH KUMAR SINHA

body2012
JUDGMENT Shailesh Kumar Sinha 1. The appeal is directed against the judgement and decree dated 20th of May 1985 passed by the 3rd Additional Subordinate Judge, Muzuffarpur in Title Suit No. 104 of 1980, whereby the plaintiff's suit for declaration of title over the suit property (Schedule-A) of the plaint stands dismissed, hence the appeal by the plaintiffs. The plaintiff's case in short is that their father Chottelal Sah had two wives, namely Nirsi Devi and Nunuwati. The first wife died issueless sometime in the year 1967. Admittedly, the suit property was purchased by Nirsi Devi, as per the registered sale deed dated 16.07.1923. The papers of the said property was handed over to the plaintiffs sometimes in the year 1967. The name of Nirsi Devi was recorded in the revenue register of the State and the land receipts were being issued is her name. The further case is that the second wife Nunuwati Devi previously married to one Jugeshar Sah of village Dharampur, District -Muzuffarpur and had a son namely, Diplal Sah (Defendant No.1) from Jugeshwar Sah. The said Jugeshwar Sah died when Diplal Sah was aged about 5 years. Nunuwati handed over his son Diplal Sah to his brother and re-married with Chotelal Sah. The plaintiff's further case is that sometimes in the year 1969, Diplal Sah approached the plaintiffs for providing a room in the suit property on payment of monthly rent and as such, a room was rented out to him on the request of Nunuwati. Diplal Sah while living in the room with an ill intention wrongly got his name recorded in the register of the Muzzufarpur Municipality describing him self as son of Chotelal Sah. The plaintiff's appeal against the said recording on being dismissed, the title suit in question was filed. Initially, the suit was filed in the court of Munsif. Later on, on account of pecuniary jurisdiction, the plaint of the suit was returned and as such, the present suit filed. The defendant's case in short is that Nunuwati was never married to Jugeshwar Sah and Diplal sah's is son of Nunuwati from the wed lock of Chotelal Sah. Defendants denied the claim of the plaintiffs that he was tenant in the house in question. The plaintiffs got their name wrongly in the survey khatian as also in the Municiapal Assesment Register and other records. Defendants denied the claim of the plaintiffs that he was tenant in the house in question. The plaintiffs got their name wrongly in the survey khatian as also in the Municiapal Assesment Register and other records. The defendant claimed that he is one of the three sons of Chotelal Sah and as such, such property was rightly sold by his wife Padharia Devi, vide sale deed dated 19.11.1981 in favour of one Sakhichand Ram (Defendant No. 3). Later on, her husband Diplal Sah executed the deed as Ajanama on 23.12.1982. 2. The trial court framed several issues, however, the primary issue was as to whether Nunuwati gave birth to Diplal Sah from the wed lock of Chotelal Sah or the Jugeshwar Sah. The other issue whether the suit is bad for non-rejoinder of Diplal Sah may be the relevant depending on the decision of the parentage of Diplal Sah. The trial court discussing the evidence on the record concluded that the plaintiffs failed to establish that Diplal Sah is a son of Nunuwati from the wed lock of Jugeshwar Sah and not Chotelal Sah and further held that plaintiff also failed to prove that Diplal Sah was residing in the house, as a tenant. The court consequently held that Diplal Sah being son of the Chotelal, as such, the sale deed dated 19.11.1981 executed by his wife in favour of defendant- Sakhi Chand Ram followed by Ajanama dated 23.12.1982 are binding on the plaintiffs. The suit was accordingly, dismissed. 3. Mr. Anil Singh, learned counsel for the appellant submits that the trial court committed serious error in not relying on the evidence of the plaintiffs-witness no. 1, the brother of Nunuwati, who had categorically stated that his sister Nunuwati had married previously to Jugeshwar Sah and had a son, namely Diplal Sah from the wed lock of Jugeshwar Sah. The court below taking an incorrect approach of law that in absence of any persons not being examined from the village of Jugeshwar Sah, the fact cannot be decided on the sole evidence of the PW1, the brother of Nunuwati even though in his cross-examination his evidence in the examination of chief remained intact. Besides the evidence of PW1, the plaintiff - witness no. 2, namely, one Ghutan Sah (PW2) had stated that Diplal Sah is the son of Jugeshwar Sah. Besides the evidence of PW1, the plaintiff - witness no. 2, namely, one Ghutan Sah (PW2) had stated that Diplal Sah is the son of Jugeshwar Sah. DW-2 was an independent witness residing adjacent to the suit property was also cross-examined, however his evidence in chief remained intact. Another witness, namely, Ainul Haque (PW-3) who was also tenant in the other portion of the house in question for a long time had stated that Defendant No. 1, Diplal Sah was tenant in the said house. The fourth witness PW-4, Sitaram Sah, the plaintiff No. 2 had deposed that Diplal Sah is the son of Jugeshwar Sah. The other witnesses PW-5 to 7 are formal witnesses proving receipt/parcha. Besides the oral evidence, the plaintiffs also brought on the records i.e. the sale deed dated 16.07.1923 (exhibit -1) in favour of Nirsi Devi, the rent receipt with respect to the house property in favour of Nirsi Devi (exhibit-2 series), the municipal receipts (exhibit -4 series) in favour of Nirsi Devi. The rayti parcha in favour of the plaintiffs issued in the year 1973 with respect to the suit property vide exhibit -5, notice terminating the tenancy of the defendant, Diplal Sah vide exhibit -3 as also the postal receipts in token of having sent the notice vide exhibit -6. 4. It is further submitted that against the above cogent evidence of the plaintiffs the persons who were residents at a distance of 100 yard from the suit house deposing in contradiction on the question of marriage of Nunuwati with Chotelal Sah as would appear from the evidence of DW-3, Janardan Prasad Verma and other witnesses DW-1 and 2 who stated that Nunuwati married once whereas Janardan Prasad Verma (DW-3) categorically stated that Chotelal Sah, father of the plaintiff had married twice. The wife of Diplal Sah, namely, Padharia Devi and her vendee Shakhichand Ram appeared as DW-5 and 6. Besides the above oral evidences, defendants brought on record the sale deed as also the Ajanama in favour of the purchaser vide exhibit - A and B respectively. The other documents relied upon is exhibit - C, the Ration Card as also the electoral roll of their assembly election, 1980 vide Exhibit - D however, the above documents cannot be relied upon. The other documents relied upon is exhibit - C, the Ration Card as also the electoral roll of their assembly election, 1980 vide Exhibit - D however, the above documents cannot be relied upon. On perusal of the Ration Card, it would appear that even according to the defendant, Diplal Sah, Chotelal Sah had only three sons i.e. Plaintiff Nos. 1 and 2 and himself whereas the ration card would show the name of one Laxmi Sah aged about 30 years, Raghunath Sah aged about 35 years, Lalbabu aged about 18 years and one Suniti aged about 62 years and as such, the ration card though in the name of Chotelal Sah did not mentions the name of plaintiffs being the sons of Chotelal. Similarly, the electoral roll of their assembly election bears various mistakes. As such, neither the exhibit - C nor the exhibit - D could not have been relied upon. It is further submitted that evidence of DW-5, Padharia Devi in her evidence stated that Diplal sah was mentally ill for last 14 years and as such, her name was mutated, as per exhibit -E. The appeal against the said order of mutation was dismissed necessitating the plaintiffs to file the suit in question. 5. Learned counsel for the appellant further submits that the evidence adduced on behalf of the plaintiffs, was sufficient to hold that Diplal Sah was the son of Jugeshwar Sah and the most important and reliable witness the brother of Nunuwati. The court below ought to have held that Diplal Sah is the son of Jugeshwar Sah from the wed lock of Nunuwati accordingly, the plaintiff's suit for declaration over the suit property should have been decreed. 6. On behalf of the appellant, an Interlocutory application No. 9318 of 1999 was filed for admitting a sale deed dated 06.06.1950 executed by Diplal Sah in favour of Khelawan Ram with respect to some property as additional evidence. The said sale deed is sought to be admitted by way of additional evidence in order to show that in the aforesaid sale deed, the executant Diplal Sah described himself as son of Jugeshwar Sah. 7. The said sale deed is sought to be admitted by way of additional evidence in order to show that in the aforesaid sale deed, the executant Diplal Sah described himself as son of Jugeshwar Sah. 7. It is contended on behalf of the appellant that although there are evidence on the record to show that Diplal Sah is the son of Jageshwar Sah, however, the said sale deed would further support the case of the plaintiff and as such, the aforesaid interlocutory application be allowed. 8. On behalf of the respondent the Defendant Purchaser of the said property during the pendency of the suit, on the other hand, it is submitted that besides the oral evidence, no documentary evidence were brought on the record by the plaintiffs in order to show that Nunuwati married Jugeshwar Sah and Diplal Sah was the son of Jugeshwar Sah. It was further contended that although Nunuwati was living with the plaintiffs but she was not examined as witness, Plaintiff No.1, namely, Nandlal was also not examined. No documents were brought on the record to show that Diplal Sah was a tenant nor any person resident of village Dharampur, the village of Jugeshwar Sah was examined to support the plaintiffs claim that Nunuwati was earlier married to Jugeshwar Sah. The learned counsel further contended that in absence of examination of Nunuwati, the evidence of PW-1, claimed to be the brother of Nunuwati was not safe to be relied upon. It is further contended that evidence of defendant witness nos. 1 and 2 would go to show that Nunuwati married only Chotelal Sah. Padharia Devi (DW-2), wife of Diplal Sah as also her vendee DW-3 supported the case of the defendant. As regards the prayer of the appellant for allowing the additional evidence, it is contended that plaintiffs has sufficient opportunity to adduce any evidence in support of their case moreso the sale deed sought to be adduced as an additional evidence was very much available at the time of the hearing of the suit as it was executed in the year 1951 as alleged by the plaintiff. The explanation for knowing the aforesaid deed during the pendency of this appeal is an after thought and in order to fill up the lacuna which is not permissible in law. The explanation for knowing the aforesaid deed during the pendency of this appeal is an after thought and in order to fill up the lacuna which is not permissible in law. Respondent, accordingly, supported the judgement and decree under the appeal and submits that the appeal deserves to be dismissed. 9. Upon considering the rival submissions of the parties, it would appear that the primary controversy between the parties is as to whether Diplal Sah is the son of Nunuwati from the wed lock of Chotelal Sah or Jugeshwar Sah. The appellant contends that Diplal Sah is the son of Jugeshwar Sah and not of Chotelal Sah. The contention of the respondent is that he is the son of Chotelal Sah from the wed lock of Nunuwati. The evidence on record is of Anup Sah (PW-1) who claimed to be the brother of Nunuwati, (PW-2) Ghutan Sah is the resident of the adjacent house to the suit property, Ainul Haque, PW-3 is the tenant in the suit property and Sitaram Sah PW-4 is plaintiff No. 2. The evidence of PW-1 was not relied upon by the court below for being the sole witness stating that Nunuwati was earlier married to Jugeshwar Sah but for in absence of any witness examined from the village of Jugeshwar Sah. The evidence of Anup Sah (PW-1), brother of Nunuwati, had stated that Diplal Sah (defendant No.1) is the son of Jugeshwar Sah and was aged about 5 years when Jugeshwar Sah died. The witness was cross-examined, however, his evidence during examination in chief remained intact. Nor any counter evidence of any relative of the family was brought on record from the side of the defendant to discard his evidence and as such, in my opinion, the evidence of PW-1 being relevant should had been accepted in view of the fact that no cogent evidence were brought on the record for not relying on the evidence of PW-1 from the side of the defendant. Exhibit - C, the ration card was relied upon, however, on perusal of the said ration card it would appear that although the same is in the name of Chotelal Sah, however, there is no explanation as to why the name of plaintiffs, namely, Nandlal Sah and Sitaram Sah who were admittedly being the son of Chotelal Sah was absent in such ration card. According to the Diplal Sah (defendant), there are only three sons of the Chotelal i.e. Plaintiff Nos. 1, 2 and himself, then who are Laxmi Nath and Raghu Nath in the said ration card shown to be the son of Chotelal Sah. It is not the case of the defendant that Chotelal Sah had more sons otherwise he could not have claimed one third share, as such, in my opinion, the ration card (exhibit-C) cannot be relied in view of such entries made in the ration card. Similarly, as regards the electoral roll (exhibit - D), it is common knowledge that the electoral roll contains various discrepancies with respect to the name, age, parentage of the person mentioned in the Electoral Roll and as such, its accuracy for deciding the important question of fact with respect to the disputed claim of relationship in the family the same is also not safe to rely. As regards the entries in the revenue records/municipality record, the plaintiffs have brought the revenue receipts as also the municipal receipts on record in favour of Nirsi Devi vide Exhibit -2 series as also the exhibit -4 series, the rayti parcha was issued in favour of the plaintiffs which is of the year 1973 vide exhibit -5. PW-2 and 3 were the resident of adjacent house and PW-3 Ainul Haque was a tenant in the said property. PW-3, a resident of adjacent house, had stated in his evidence that Diplal Sah (defendant) was the son of Jugeshwar Sah and his evidence in the chief remained intact during his cross-examination and as such, there could no valid reason to ignore is evidence. Besides this, Aimul Haque (PW-4) is a tenant in the house deposed that Diplal Sah was residing in the house as a tenant. Janardan Prasad Verma, (D.W.- 3) is a resident of about 100 yards far from the house property, who used to take meal in the shop of Diplal Sah, had stated that Chotelal Sah had married twice whereas; the defendant nos. 1 and 2 stated that Nunuwati married only once. As regards the prayer of the appellant for permitting to bring on record the sale deed dated 06.06.1950 by way of additional evidence, I find that the plaintiff could not satisfy the legal requirements as mentioned under the provisions of order 41 Rule 27 (1) (a) or (aa) of the Code of Civil Procedure. As regards the prayer of the appellant for permitting to bring on record the sale deed dated 06.06.1950 by way of additional evidence, I find that the plaintiff could not satisfy the legal requirements as mentioned under the provisions of order 41 Rule 27 (1) (a) or (aa) of the Code of Civil Procedure. In order to show that Diplal Sah the executants of the sale deed described himself to be the son of Jugeshwar Sah may be a relevant document. However, in terms of the provisions of order 41 Rule 27 (1) (b) the appellate court may allow the documents to be brought on the record by way additional evidence if the same is required to enable pronouncing of the judgement or for any substituted cause. 10. In the instant case, I find that the materials are already on the record to decide the appeal on merits as discussed above and as such, the prayer for allowing additional evidence is not justified in law. The interlocutory application No. 9318 of 1999 is accordingly, rejected. Now adverting to the merits of the matter, in my opinion, on appraisal of the oral and documentary evidence on record in its correct prospective as discussed above, I find and hold that the plaintiffs have succeeded in establishing that Diplal Sah (Defendant No. 1) is the son of Nunuwati but from the wed lock of Jugeshwar Sah and not from Chotelal Sah. This being the factual position, on the basis of the evidences as noticed above, Padharia Devi (defendant No. 2) wife of Diplal Sah (defendant no.1) who executed the sale deed in favour of the defendant respondent had no title in the property enabling her to execute the sale deed vide exhibit -A and consequently, the execution of Ajanama (exhibit -B) has no legal consequence. 11. It is, accordingly, held that plaintiff is entitled to a declaration of title over the suit property and the entries in the revenue records as also the municipal records with respect to the suit property in favour of defendant respondent is equally declared as invalid. 12. In the result, for the reasons and discussions made above, the judgement and decree under the appeal is set aside and the suit is decreed, as prayed for. In the facts and circumstances of the case, there shall be no order as to the costs.