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2013 DIGILAW 308 (PAT)

Mokadim Ahir v. Laljee Ahir

2013-03-06

CHAKRADHARI SHARAN SINGH

body2013
ORDER Heard Mr. Nirmal Kumar Sinha, learned counsel for the appellants. 2. This appeal under section 100 of the Code of Civil Procedure (hereinafter referred to as the Code) has been placed before me for hearing under Order 41 Rule 11 of the Code. 3. The plaintiffs are the appellants in this appeal and are aggrieved by the judgement and decree dated 08-04-2010 and 17-04-2010 respectively, passed by learned Additional District Judge/ F.T.C.1, Kaimur (Bhabhua) in T.A. No. 36 of 2008/ 45 of 2009 whereby he has affirmed the judgement and decree dated 22-05-2008 and 05-06-2008 respectively, passed by learned Sub Judge-I, Kaimur in T. S. No. 329/2002 and dismissed the first appeal. 4. The appellants had filed the said Title Suit No. 329/2002 seeking partition of the suit properties as described in schedule-A to the plaint claiming half share and also for declaration that entry made in revisional survey Khata No. 136 in the name of Ramjee Ahir and Laljee Ahir (respondent No.1) was incorrect, illegal and inoperative. 5. The plaintiffs in their plaint developed a case that Gokhul Ahir was the common ancestor of the parties who died leaving behind his two sons namely, Mathura Ahir and Ram Baran Ahir. Ram Baran died issueless whereas Mathura died leaving behind two sons, Gajar and Bansropan. As per the plaintiffs’ case appellant No.1, Mokadim Ahir was the only son of Banshropan whereas Gajar had two sons, namely, Ramjee and Laljee. This is to be noted that appellants No.2, 3 and 4 are sons of appellant No.1, Mokadim Ahir whereas Laljee, son of Gajar is respondent No.1 and his two sons, Gulu and Jaggu are respondents No.2 and 3 in the present appeal. Jhakari, Bhikari and Munna, sons of Ramjee Ahir, are respondents No. 4, 5 and 6 in the present memo of appeal. As has been noted above, the appellants were the plaintiffs before the court below whereas the respondents were the defendants. 6. The further case of the appellants before the trial court was that name of wife of Gajar was Sumitra. After the death of Gajar Sumitra was married to Banshropan. Out of this wedlock, Mokadim Ahir, appellant No.1 was born. As has been noted above, the appellants were the plaintiffs before the court below whereas the respondents were the defendants. 6. The further case of the appellants before the trial court was that name of wife of Gajar was Sumitra. After the death of Gajar Sumitra was married to Banshropan. Out of this wedlock, Mokadim Ahir, appellant No.1 was born. It was claimed that during revisional survey names of Ramjee and Laljee were wrongly recorded in R.S. Khatiyan No. 136 and that only two decimals of land was recorded in the name of Banshropan, father of appellant No.1, in R.S. Khata No.94. In such circumstances, the appellants claimed half share in the suit property. 7. The respondents contested the suit and filed their written statement. They disputed the genealogy put forward by the appellants. They contended that Gokhul Ahir was common ancestor but he had only one son Ram Baran and Mathura was not the son of Gokhul Ahir. They further contended that Mathura had only one son, namely, Gajar and he was not married to Sumitra as alleged by the appellants. Rather, the name of Gajar’s wife was Mallu. The defendants took the plea that Banshropan was not a member of the family, rather, he was a Charwaha (herdsman). They further claimed that Sumitra was not married to Banshropan and that the appellants were not entitled to any share in the suit property. 8. On the basis of rival pleadings the learned trial court framed altogether 8 issues including issue No. vi which according to me is the core issue in the present dispute which would read thus:- “Whether the genealogy given by the plaintiff is correct?” 9. Learned trial court after considering the oral and documentary evidence on record adduced in course of the trial came to a finding that Gokhul Ahir had only one son Ram Baran and he had no son in the name of Mathura. The learned trial court came to this finding on the basis of contradictory statements made by the witnesses for the plaintiffs and also the cadastral survey entry (exhibit-2/A). The learned trial court also came to a finding, on the basis of evidence on record, that appellant No.1 was not a descendant of Ram Baran. The learned trial court came to this finding on the basis of contradictory statements made by the witnesses for the plaintiffs and also the cadastral survey entry (exhibit-2/A). The learned trial court also came to a finding, on the basis of evidence on record, that appellant No.1 was not a descendant of Ram Baran. The learned trial court held the genealogical table given by the plaintiffs to be imaginary and far from truth and, accordingly, dismissed the suit vide its judgement and decree dated 22-05-2008 and 05-06-2008 respectively. 10. The plaintiffs thereafter preferred Title Appeal No. 36 of 2008/ 45 of 2009 in the file of learned Additional District Judge, F.T.C.1, Kaimur (Bhabhua). Learned first appellate court vide its judgement and decree dated 08-04-2010 and 17-04-2010 respectively, dismissed the appeal concurring with the findings of fact arrived at by the learned trial court. 11. From the judgement and decree of learned first appellate court, it would appear that the learned first appellate court formulated the point for consideration in paragraph 12 as to whether Sumitra Devi was the name of wife of Gajar and whether Sumitra Devi was married to brother of Gajar Ahir, viz. Bahsropan Ahir and whether Banshropan was the brother of Gajar Ahir. 12. Learned first appellate court took into account the major contradictions in the pleadings of the plaintiff as would appear from paragraphs 13 to 16 of the judgement under appeal. Further, it would appear that the learned first appellate court took into account the oral evidence adduced on behalf of plaintiffs and came to the specific finding that the appellants failed to prove that Sumitra, wife of Gajar Ahir, was married to Banshropan after the death of Gajar and the appellant No.1, Mokadim was born out of the said wedlock between Banshropan and Sumitra. The first appellate court also came to a finding that the appellants failed to prove that Banshropan was the brother of Gajar Ahir. 13. Learned counsel for the appellants has submitted that the courts below misdirected themselves while considering the evidence on record and based their decisions largely on the entry available in C.S. Khatiyan in the name of Late Ram Baran Ahir which could not be a conclusive proof of the fact that Ram Baran was the only son of late Gokhul Ahir. Learned counsel for the appellants has submitted that the courts below misdirected themselves while considering the evidence on record and based their decisions largely on the entry available in C.S. Khatiyan in the name of Late Ram Baran Ahir which could not be a conclusive proof of the fact that Ram Baran was the only son of late Gokhul Ahir. Learned counsel for the appellants has also submitted that there was no documentary evidence on record to show as to how many sons Gokhul had. Learned counsel for the appellants further submitted that the defendants failed to prove that the appellants were the strangers to the family of respondents. 14. The plea of the appellants is demolished by their own statement that there was no documentary evidence on record to show as to how many sons Gokhul had. If this be so, according to appellants themselves they failed to establish before the courts below that Gokhul had two sons, namely, Mathura and Ram Baran. 15. It is settled principle of law that onus of proof of a fact is on a person who asserts that fact. Genealogical table was given by the plaintiffs. It was their duty to prove the same as per the assertions made in the plaint. This is, thus, admitted that the appellants could not prove before the courts below that Mathura was son of Gokhul or that Banshropan belonged to the family having common ancestor of Gokhul. Learned counsel for the appellants, in addition to the grounds to assail the judgements under appeal, as has been noted above, has not been able to point out any perversity in the judgements of the court below nor he has raised any question of law, much less, substantial question of law which according to him was wrongly decided by the courts below which materially affected the result of the case of the appellants. 16. Section 100 of the Code of Civil Procedure envisages that a Second Appeal would lie to the High Court from a decree passed in appeal by any court sub-ordinate to the High Court if the High Court is satisfied that the case involves a substantial question of law. 16. Section 100 of the Code of Civil Procedure envisages that a Second Appeal would lie to the High Court from a decree passed in appeal by any court sub-ordinate to the High Court if the High Court is satisfied that the case involves a substantial question of law. In order to re-assert the mandatory requirement of involvement of substantial question of law for a second appeal to be maintained under Section 100 of the Code, Section 101 of the Code provides that no second appeal shall lie “except on the ground mentioned in Section 100 of the Code”. Such being the legislative mandate, the superior courts have on several occasions laid down law as to what would constitute and what would not, a “substantial question of law” within the meaning of Section 100 of the Code while scrutinizing scope of the Section. By now, it is settled position of law that the High Court cannot interfere with the concurrent finding of fact unless the same is found to be perverse being based on no evidence or contrary to material available on record or that on the evidence on record no reasonable person could have come to that conclusion. Reference may be made in this regard to the Supreme Court judgments in the cases of Vidyadhar Manik Rao, (1999) 3 SCC 573 ; Sugani (mst.) v. Rameshwar Das and another, (2006) 11 SCC 87; Gurudev Kaur v. Kaki, (2007) 1 SCC 546 ; Prakash Kumar v. State of Gujarat (2004) 5 SCC 140 ; Thingarajan and ors. V. Venugopalaswamy B. Koil and others (2004) 5 SCC 762 and Narayanan Rajendran and another v. Lakshmi Sarojini and other. In such view of the matter, I am of the opinion that, this appeal does not merit admission and is, accordingly, dismissed.