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2013 DIGILAW 2 (PAT)

Ramrati Devi v. Bhushan Singh

2013-01-02

MUNGESHWAR SAHOO

body2013
ORDER I have heard the learned senior counsel, Mr. S. S. Dwivedi on behalf of the appellant and the learned counsel, Mr. Jitendra Kishore Verma on behalf of the respondent under Order 41 Rule 11 C.P.C. Heard the learned counsels on the interlocutory applications No.7761 of 2012 and I.A. No.1939 of 2012 and also interlocutory applicationNo.1940 of 2012. 2. The defendants-appellants-appellants have filed this second appeal against the Judgment and Decree dated 14.12.2011 passed by the learned District Judge, Nalanda at Biharsharif in title appeal No.24 of 2011 whereby the lower appellate Court dismissed the title appeal and confirmed the Judgment and Decree of the trial Court dated 13.5.2011 passed by the learned Sub Judge I, Biharsharif in title (partition) suit No.140 of 2000). 3. The plaintiff-respondent filed the aforesaid partition suit claiming half share in the suit property. For the purpose of deciding the controversy between the parties, the facts which are only relevant is stated hereinbelow. According to the plaintiff, one Harkhu Singh had 4 sons, namely, Julum Singh, Gambhir Singh, Dilbodh Singh and Degnath Singh. The plaintiff is the son of Kalo Devi who was daughter of Dilbodh Singh whereas the defendants are representing the branch of Julum Singh. Degnath Singh and Gambhir Singh died in or about the year 1930 in the State of jointness with their brothers, Julum Singh and Dilbodh Singh. Julum Singh died in the year 1942 and Dilbodh Singh died in the year 1970 leaving behind his daughter Kalo Devi. Kalo Devi also died in the year 1995 leaving the plaintiff. Dilbodh Singh was mostly engaged in Puja path and Bhajan Kirthan. 4. According to the written statement of the appellant, Dilbodh Singh died issueless in the year 1930. There had been partition between the 3 branches and there is no unity of title and possession between the parties. Kalo Devi was not the daughter of Dilbodh Singh rather she was the daughter of Mukha Singh, brother of Harkhu Singh. 5. The trial Court after considering the materials available on record recorded the finding that Kalo Devi was the daughter of Dilbodh Singh and Dilbodh Singh died in the year 1970 and not in 1934 and accordingly decreed the plaintiff’s suit for partition. The defendants-appellants filed title appeal before the lower appellate Court. The lower appellate Court recording the same finding dismissed the title appeal. 6. The learned senior counsel, Mr. The defendants-appellants filed title appeal before the lower appellate Court. The lower appellate Court recording the same finding dismissed the title appeal. 6. The learned senior counsel, Mr. S. S. Dwivedi appearing on behalf of the appellant submitted that the Courts below have not considered in right prospective the documentary evidences produced by the appellants, i.e., ext. ‘A’ ‘C’, ‘J’, and ‘Z’ and relied upon the evidence of P.W.1 wrongly without considering his statement made in paragraph 59 of his deposition wherein he has admitted that Dilbodh Singh died in the year 1935-36. The learned counsel further submitted that the properties have been gifted to the appellants by Lalpari Devi and Savitri Devi in the year 1972, 1997-98 by registered deed but the said gift deeds were not challenged by the plaintiff. According to the learned counsel, no evidence was adduced by the plaintiff in support of the case of parentage of Kalo Devi which were admissible under Section 50 of the Evidence Act. On the contrary, the lower appellate Court has wrongly placed onus on the appellant to prove that Kalo Devi was not the daughter of Dilbodh Singh. The learned counsel further submitted that the lower appellate Court has only catalogued the evidence and has not considered the same. It may be mentioned here that the ext.’A’ ‘C’ ‘J’ and ‘Z’ have been annexed with the supplementary substantial questions of law filed by the appellant during the course of hearing under Order 41 Rule 11 C.P.C. 7. So far the interlocutory applications are concerned, the learned counsel submitted that during the pendency of this second appeal, the plaintiff respondents has already transferred some part of the suit land and are now again trying to sell the suit property, therefore, injunction application has been filed praying for restraining the respondents from alienating/encumbering the suit property. Another interlocutory application has been filed being I.A. No.1939 of 2012 praying for adding the subsequent transferee as party respondent in second appeal. As stated above I heard at length in admission matter as well as on these interlocutory applications. 8. The learned counsel, Mr. Another interlocutory application has been filed being I.A. No.1939 of 2012 praying for adding the subsequent transferee as party respondent in second appeal. As stated above I heard at length in admission matter as well as on these interlocutory applications. 8. The learned counsel, Mr. Jitendra Kishore Verma appearing on behalf of the respondent submitted that the trial Court considering the each and every evidence adduced by the parties recorded that the plaintiffs have been able to prove that Dilbodh Singh died in the year 1970 and at the same time, the trial Court also recorded the finding that defendant failed to prove that Dilbodh Singh died in the year 1934. The trial Court also recorded the finding that Kalo Devi was the daughter of Dilbodh Singh. These are the findings of facts recorded by both the Courts below. Therefore, in second appellate jurisdiction, the same cannot be interfered with. So far the ext.’A’ ‘C’ ‘J’ ‘Z’ are concerned, according to the learned counsel, those are not relevant for decision of the controversy between the parties and moreover the trial Court has dealt with these documents very elaborately. So far P.W.1 is concerned, according to the learned counsel, one line statement cannot be read in isolation, therefore, none of the grounds raised by the appellant is substantial question of law. 9. From the submission of the parties and the Judgment of the Courts below, the dispute between the parties is with regard to parentage of Kalo Devi and year of death of Dilbodh Singh. If it is held that Kalo Devi was daughter of Dilbodh Singh then also the plaintiff will not get any share unless it is proved that Dilbodh Singh died after coming into force of Hindu Succession Act. From perusal of the trial Court Judgment, it appears that the trial Court has considered the evidences of the witnesses adduced by the plaintiff and it appears that the witnesses are either the co-villagers or the family members or a servant and their evidences were found admissible under Section 50 of the Evidence Act. It may be mentioned here that there is no documentary evidences produced by either the plaintiff or the defendants on the point of parentage of Kalo Devi. On the basis of the oral evidence only, the trial Court recorded the finding that Kalo Devi was the daughter of Dilbodh Singh. 10. It may be mentioned here that there is no documentary evidences produced by either the plaintiff or the defendants on the point of parentage of Kalo Devi. On the basis of the oral evidence only, the trial Court recorded the finding that Kalo Devi was the daughter of Dilbodh Singh. 10. In the case of Sarju Prasad Ramdeo Sahu Vs. Jwaleshwari Prasad Narayan Singh 1951 SC 120, the Apex Court considering the scope of the first appellate Court held that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judges notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lie, the appellate Court should not interfere with the finding of the trial Judge on a question of fact. This decision of the Apex Court has again been followed in the case of Madhusudan Das Vs. Narayani Bai A.I.R. 1983 SC 114. Therefore, in view of the decision of the Apex Court since the finding of fact arrived at by the trial Court based on admissible oral evidence, the same could not be interfered with lightly by the lower appellate Court. 11. So far the submission of the learned counsel for the appellant that paragraph 59 of P.W.1 has not been considered is concerned, it may be mentioned here that in the examination-in-chief, he has specifically stated that Dilbodh Singh died in the year 1970 leaving behind Kalo Devi. In paragraph 59 that one place only he said that Dilbodh did not die in 1934 rather he died in 1935-36. It further appears from the evidence which has been annexed with the supplementary substantial question of law by the appellant that he has admitted that he is heard of hearing. Therefore, only on this statement of this witness, the entire evidence cannot be discarded or disbelieved. In other words, this line cannot be read in isolation. The whole evidence has to be read, in my opinion, therefore, for non-consideration of this one line only particularly, when there are other material evidences available on record, the Judgments of both the Courts below cannot be said to be vitiated. 12. So far the submission of the learned counsel regarding ext. The whole evidence has to be read, in my opinion, therefore, for non-consideration of this one line only particularly, when there are other material evidences available on record, the Judgments of both the Courts below cannot be said to be vitiated. 12. So far the submission of the learned counsel regarding ext. ‘Z’ is concerned, it may be mentioned here that ext. ‘Z’ is a written statement filed by another party in 145 Cr.P.C. proceeding wherein in the genealogical table, it is mentioned that Dilbodh Singh died issueless. It may be mentioned here that in this proceeding, neither Kalo Devi nor the plaintiff are party. Therefore, on the basis of this written statement filed by another person, it cannot be conclusively recorded that Dilbodh Singh died issueless. Therefore, for non-consideration of that part by the appellate Court, particularly when the same has been considered by the trial Court, it cannot be said that the appellate Court Judgment is vitiated. 13. Both the Courts below considering the evidences recorded the finding that Kalo Devi was the daughter of Dilbodh Singh, this finding of both the Courts below is pure finding of fact. In the case of Vishwanath Agrawal Vs. Sarla Vishwanath Agrawal 2012 (7) SCC 288 paragraph 37, the Apex Court has held as follows :– “37. In Vidhyadhar v. Manikrao 1999 (3) SCC 573 , it has been ruled that the High Court in a second appeal should not disturb the concurrent findings of fact unless it is shown that the findings recorded by the courts below re perverse being based on no evidence or that on the evidence on record no reasonable person could have come to that conclusion. We may note here that solely because another view is possible on the basis of the evidence, the High court would not be entitled to exercise the jurisdiction under Section 100 of the Code of Civil procedure. This view of ours has been fortified by the decision of this Court in Abdul Raheem Vs. Karnataka Electricity Board 2007 (14) SCC 138 : AIR 2008 SC 956 .” 14. In view of the above settled proposition of law, this finding that Kalo Devi was the daughter of Dilbodh Singh is concerned, it is finding of fact and the High Court, therefore, cannot interfere with in second appellate jurisdiction. 15. Karnataka Electricity Board 2007 (14) SCC 138 : AIR 2008 SC 956 .” 14. In view of the above settled proposition of law, this finding that Kalo Devi was the daughter of Dilbodh Singh is concerned, it is finding of fact and the High Court, therefore, cannot interfere with in second appellate jurisdiction. 15. Now, even if it is held that Kalo Devi was the daughter of Dilbodh Singh, Kalo Devi will not inherit the property unless it is proved that he died after coming into force of Hindu Succession Act. Both the Courts below recorded the finding that he died in the year 1970. According to the plaintiff, Dilbodh Singh died in 1970 whereas according to the defendants, he died in the year 1934. Since the finding of parentage of Kalo Devi has been found in favour of the plaintiff, therefore, naturally she will succeed the property unless it is proved that her father died prior to coming into force of Hindu Succession Act. The defendants are claiming to displace the natural succession of Kalo Devi. Now, therefore, they have to prove the special fact which they alleged that Dilbodh Singh died in the year 1934. However, it appears that both the parties adduced the evidences regarding year of death. After considering the evidences, the trial Court recorded the finding that Dilbodh Singh died in the year 1970 and not in the year 1934. This is again finding of fact which was recorded on the basis of admissible evidence. The grounds raised by the appellant is that the lower appellate Court has not considered the ext. ‘A’. This document has been annexed with the supplementary substantial question of law. The learned counsel submitted that it is Yadasth Batwara of the year 1936. In this Yadasth Batwara, the name of Dilbodh Singh is not mentioned because he was dead. So far this submission is concerned, I do not agree with the learned counsel because of the fact that his name has not been mentioned in Yadasth Batwara, there cannot be any presumption that he has died. As stated above regarding the year of death also, no documentary evidences have been produced. All the documents produced by the defendants are with respect to other matters regarding possession, mutation. Considering the oral evidences, the Courts below have recorded the finding that Dilbodh Singh died in the year 1970. 16. As stated above regarding the year of death also, no documentary evidences have been produced. All the documents produced by the defendants are with respect to other matters regarding possession, mutation. Considering the oral evidences, the Courts below have recorded the finding that Dilbodh Singh died in the year 1970. 16. So far the submission of the learned counsel for the appellant that wrong onus has been placed on the appellant is concerned, from perusal of the Judgment, I do not find so. Both the parties came to the Court with their definite case. After considering the materials, the trial Court recorded the finding that the plaintiffs proved their case whereas the defendants failed to prove their case. Therefore, it is not the case that because the defendant failed to prove their case, the plaintiff’s case has been proved. I, therefore, do not find any force in the submission of the learned counsel for the appellant. 17. From perusal of the lower appellate Court Judgment, it appears that the lower appellate Court has also considered the material evidences. Only because some of the evidences which have not been considered in second appellate jurisdiction, the Judgment cannot be interfered with. In other words, sufficiency or adequacy of evidence to support a finding of fact is a matter for decision of the Court of facts and cannot be agitated in a second appellate as has been held by the Apex Court in the case of Madamanchi Ramappa & Anr. Vs. Muthaluru Bojjappa, A.I.R. 1963 SC 1633. Here, it cannot be said that on the basis of the materials which were relied upon by the Courts below, the finding cannot be recorded as has been recorded by both the Courts below. Now, therefore, in second appellate jurisdiction, after re-appreciating the oral evidence, this Court cannot substitute the finding of fact. 18. So far the submission that the lower appellate Court has not elaborately discussed the evidence as that of trial Court is concerned, it may be mentioned here that the Judgment is of affirmance and it has been held by the Apex Court in the case of Girijanandini Devi and others Vs. Bijendra Narain Choudhary A.I.R. 1967 SC 1124 that the appellate Court agreeing with the view of the trial Court need not restate the fact of the evidence or reiterate the reasons given by the trial Court. Bijendra Narain Choudhary A.I.R. 1967 SC 1124 that the appellate Court agreeing with the view of the trial Court need not restate the fact of the evidence or reiterate the reasons given by the trial Court. This decision of the Apex Court has been explained in the case of Santosh Hazari Vs. Purushutam Tiwary 2001 (3) SCC 179 and it has bee held that the expression of general agreement with the findings recorded in the Judgment under appeal should not be a devise or camouflage adopted by the appellate Court for shirking the duty caste on it. From perusal of the Judgment of the lower appellate Court, I find that it cannot be said that the lower appellate Court has not discharged his duties in view of the decision of the Apex Court. 19. In view of my above discussion, I find that none of the grounds raised by the appellant is substantial question of law involved for decision in this second appeal. Therefore, this second appeal is dismissed at the admission stage itself. 20. So far the interlocutory applications are concerned, no separate order is required to be passed since the appeal has been dismissed as such the same are also dismissed.