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2019 DIGILAW 2002 (JHR)

Ramdeo Turi v. Nanki Devi

2019-12-11

SANJAY KUMAR DWIVEDI

body2019
JUDGMENT Sanjay Kumar Dwivedi, J. - Heard Mr. Baban Prasad, the learned counsel appearing for the appellants. 2. The appellants have preferred this second appeal against the judgment and decree dated 31.01.2017 and 14.02.2017 respectively passed by the District Judge-I, Deoghar in Title Appeal No.39 of 2008 affirming the judgment dated 30.09.2008 and decree dated 12.11.2008 respectively passed by Sub-Judge-VII, Deoghar in Title Suit No.66 of 1995. 3. The respondent/plaintiffs instituted the suit for declaring right, title, interest and possession of the respondent/plaintiffs and the proforma defendants over the suit land and if the respondent/plaintiffs are dispossesses then for recovery of possession and permanent injunction against the defendant 2nd party. 4. The further case of the plaintiffs is that the plaintiffs and proforma defendants inherited the entire ancestral property, i.e., Plot No.129 Bari 1st Class land, JB No.58 Area 00.7 decimals MouzaDumaria left by their father Bysical Mircha. 5. Further case of the plaintiffs is that one Jirwa Domin claiming herself as a wife of father of the plaintiff filed maintenance case which was subsequently rejected by the competent court of law but the said Jirwa Domin with connivance by the Defendants trying to grab the land of the plaintiffs. 6. On the basis of the above pleadings, the trial court entered into the lis and formulated ten issues to decide the lis. The trial court after discussing all the issues decreed the suit in favour of the respondent/plaintiffs by judgment dated 30.09.2008 against the judgment dated 30.09.2008. The appellants filed the Title Appeal No.39 of 2008 which was decided by the judgment dated 31.01.2017 by the District Judge-I, Deoghar. The appellate court has also affirmed the judgment of the trial court and came to the finding that Bysical Mirdha had only one wife Jahri Devi and the plaintiffs are the descendants of Bysical Mirdha. The appellate court has also come to the finding that the contesting defendant no.4 and 5 have established that they are descendants of Bysical Mirdha and accordingly the trial court order has been affirmed by the appellate court and the appeal was dismissed vide judgment dated 31.01.2017. 7. Aggrieved with this, the appellants have preferred this second appeal. 8. Mr. The appellate court has also come to the finding that the contesting defendant no.4 and 5 have established that they are descendants of Bysical Mirdha and accordingly the trial court order has been affirmed by the appellate court and the appeal was dismissed vide judgment dated 31.01.2017. 7. Aggrieved with this, the appellants have preferred this second appeal. 8. Mr. Baban Prasad, the learned counsel appearing for the appellants submits that it was incumbent upon the respondent/plaintiffs to disclose the name of parentage of Bishehwar Mirdha and in absence of disclosure of parentage only on averments made in the plaint, the trial court as well as the appellate court have erred in law in saying that Bisheshwar Mirdha is not the son of Bysical Mirdha. Mr. Prasad, the learned counsel appearing for the appellants relied in the case of " Sudama Devi and Ors. v. Lakhiya Devi and Ors.,2013 SCCOnLinePat 455 ". He further relied in the case of " Panmati Devi and Ors. v. Sudarshan Singh and Ors.,2010 SCCOnLinePat 663 ". By way of referring those judgments, Mr. Prasad, the learned counsel for the appellants submits that the case of the appellants is fully covered by these two judgments. He submits that it is not disclosed by the plaintiffs/respondents that Bisheshwar Mirdha is not the son of Bysical Mirdha and in that view of the matter there is apparent error of law on the part of the trial court as well as the appellate court and on this substantial question of law this second appeal is fit to be admitted. 9. This Court has perused the judgments of the trial court as well as the appellate court and finds that it is an admitted fact that the respondents/plaintiffs and proforma defendants are the sons of Bysical Mirdha. The main bone of contention is that whether the defendant''s father namely, Bisheshwar Mirdha son of Jirwa Domin was the son of Bysical Mirdha or not. The plaintiffs are denying that Bisheshwar Mirdha was the son of Bysical Mirdha whereas the defendants are claiming otherwise. Ext.-1 is the order of the court which was passed in a proceeding under section 488 Cr.P.C. (new section 125 Cr. P.C.) between Jirwa Domin and Bysical Mirdha. The plaintiffs are denying that Bisheshwar Mirdha was the son of Bysical Mirdha whereas the defendants are claiming otherwise. Ext.-1 is the order of the court which was passed in a proceeding under section 488 Cr.P.C. (new section 125 Cr. P.C.) between Jirwa Domin and Bysical Mirdha. This case was filed by Jirwa Domin against Bysical Mirdha claiming Bysical Mirdha as her husband and she has prayed for grant of maintenance for herself and for her two children Bisheshwar Mirdha and Tipan Mirdha. The court had dismissed the petition of Jirwa Domin holding that Jirwa Domin is not the wife of Bysical Mirdha rather she is the wife of Behra Dom of village Jarka and her husband is alive and the maintenance was denied and that order was never challenged either by Jirwa Domin or her sons thus, that order has become final. Further the trial court and the appellate court after discussing the evidences and exhibits came to the finding that Bysical Mirdha had only one wife and Jirwa Domin and the plaintiffs are the descendants of Bysical Mirdha. Both the fact finding courts have already come to the concurrent finding. This Court finds that there is no substantial question of law involved in the instant second appeal and accordingly, S.A. No.211 of 2017 stands dismissed.