JUDGMENT : 1. Heard Mr. R.N.Sahay, the learned Senior counsel assisted by Mr. Yashwardhan, the learned vice counsel appearing on behalf of the appellants and Mr. S.K.Sharma, the learned counsel assisted by Mr. R.K. Mahtha, the learned vice counsel appearing on behalf of the respondents. 2. The present Second Appeal has been filed being aggrieved and dissatisfied with the judgment and decree dated 18.03.1998 and 28.03.1998 passed by learned Vth Additional District Judge, Dhanbad in Title Appeal No.57 of 1985 whereby the judgment and decree dated 01.10.1985 passed by the learned trial court has been reversed. 3. The Title Suit No.82 of 1981 was instituted for partition of plaintiff’s half share in the fully described in the schedule-B to the plaintiff by metes and bounds and separate possession instituted by Mansa Ram Mahto. By judgment dated 01.10.1985 the learned trial court held that plaintiff is not the son of late Adri Mahatain on the ground that natural corollary follows that Adri Mahatain died issueless and the suit was dismissed. Aggrieved with the said judgment, the plaintiff/respondents filed Title Appeal No.57 of 1985 and by the judgment dated 18.03.1998 the appeal was allowed in part on contest and the judgment and the decree of the learned trial court was modified and the suit of the plaintiff was decreed in part holding that the plaintiff is entitled to a decree of partition to the extent of his half share in the suit property given in schedule-B of the plaint, excepts land recorded in the Khata No.32. 4. This Second Appeal was admitted for hearing on the following substantial question of law by order dated 11.01.1999: (i) Whether the evidence of P.Ws. 2,4 and 5 were admissible under section 50 of the Evidence Act?; and (ii) Whether the plaintiff was the son of late Adri Mahatain? 5. Mr. Sahay, the learned Senior counsel appearing on behalf of the appellants submits that the learned trial court has rightly passed the judgment relying on the documentary evidence and in that view of the matter, the finding of the appellate court reversing the said judgment is perverse. 5. Mr. Sahay, the learned Senior counsel appearing on behalf of the appellants submits that the learned trial court has rightly passed the judgment relying on the documentary evidence and in that view of the matter, the finding of the appellate court reversing the said judgment is perverse. He submits that section 50 of the Evidence Act will apply once the evidence of the witnesses by way of conduct and if has attended and knowing the family in particular way and in that view of the matter section 50 of the Evidence Act is not helping the plaintiff/appellant/respondents. 6. The plaintiff/appellant/respondents instituted a suit stating therein that the property described in schedule-B of the plaint are ancestral raiyati property of plaintiff/defendant nos.1 to 5, 7 and 8. It has been further contended that last cadastral survey was recorded in the name of one Sarthi Mahatain who died in October, 1957 leaving behind her two daughters i.e. Bhadri and Adri Mahtain who inherited in equal shares. It was claimed that the plaintiff was son of Adri Mahatain who died in the year 1971 A.D. leaving behind plaintiff as her sole heir. Bhadri Mahatain died in the year 1967 as defendant nos.1 to 5, 7 and 8 are heirs and their relationship between them of sisters and both sisters died in the state of issuelessness and being respective heirs are still in joint property in suit. The defendants are also said to be in the joint possession. It was contended that Shailajanand Pandey never possessing any portion of the land in suit at any time and on these grounds it was claimed that plaintiff was having half share of the suit property which was never partitioned by metes and bounds and when the differences cropped up, the plaintiff requested for amicable partition but the defendants failed to oblige him and hence the suit was instituted. The appellant/defendants appeared in the suit and filed written statement taking the ground of limitation, estopple, waiver and acquiescence. It was further contended that there was no unity of title and possession between the plaintiff and the defendants. Defendant nos.2 to 5, 9 and 12 purchased the land of suit of Khata No.32 of Mouza Muraidih, P.S. Bhaghmara, District-Dhanbad from the owner late Shailajanand Pandey and another through registered sale deed nos. 1194 and 1195 dated 20.02.1980 for valuable consideration. Defendant nos.2 to 5, 9 and 12 purchased the land of suit of Khata No.32 of Mouza Muraidih, P.S. Bhaghmara, District-Dhanbad from the owner late Shailajanand Pandey and another through registered sale deed nos. 1194 and 1195 dated 20.02.1980 for valuable consideration. Their names were mutated in the State Sharista in respect of purchased lands and they have been paying rent accordingly. The land of Khata No.32 was wrongly recorded in the name of Sarathi Mahtain for which litigation continued up to the High Court between ex-land lord late Shailjanand Pandey and Sarathi Mahtain and others by Title Suit No.182 of 1936 decided by Sub Judge, Dhanbad and thereafter second appeal in the High Court and the ex-land lord succeeded and Sarathi Mahtain lost. The possession of the ex-land lord was confirmed. As a result, suit land in other khatians namely, the Khata Nos.33, 34, 35 and 36 were exclusive property of Sarathi Mahtain the wife of late Gajadhar Mahto and Late Gajadhar Mahto had no interest therein. Late Gajadhar Mahto had no son and he had only three daughters namely, Bhadri, Rausa and Adri. Adri was the youngest and Bhadri was the second daughter. They died 38-43 years ago leaving no issue and the entire property of late Gajadhar Mahto inherited by late Bhadri Mahtain having two sons Etwari and Dandu Mahto. Adri Mahtain died long ago and the plaintiff is not the son of late Adri Mahtain. Rasua Mahtain died during the life time of her father before 1939-40. Bhadri Mahtain died in 1967 and she being sole surviving daughter inherited all the properties in suit khata nos.33, 34, 35 and 36 of Mouza Muraidih. It was contended by the defendants in the suit that the plaintiff being stranger to the family of the descendants of late Gajadhar Mahto did not inherit nor ever possessed any property left by Gajadhar Mahto and he has got no half share or any share in the properties as he claimed. 7. It was contended by the defendants that Adri Mahtain and her two sisters conveyed and transferred the entire properties to defendant no.1 and the father of defendant nos.2 to 5 by a registered sale deed dated 24.03.1938 along with Sarathi Mahtain and as such except the transferees, none-else has or had any interest in the properties left by late Gjadhar Mahto. On these grounds, it was contended that there is no question of unity of title and possession between the plaintiff and the defendants. Defendant no.6 Bharat Coking Coal Company Limited has purchased 3.40 acres of land recorded in Khatian Nos.33 and 34 from defendant nos.1 to 5 by registered sale deeds. It was contended that the plaintiff is in permissive occupation in the middle portion in khatiani no.35 by the consent and approval of the defendant no.1 and late Etwari Mahto for about 20 years as he came landless in the village and he was having serious disputes and troubles for his ancestral properties at Bahiardih. One Nanka Manjhi has also been in permissive occupation in some portion of plot no.82 in khata no.35. The defendants contended that the plaintiff is not entitled to any relief and the suit is fit to be dismissed with cost. On these grounds, the suit was contested by the appellant/defendants. The learned trial court has considered the evidence as well as the exhibits and held that the plaintiff is not the son of late Adri Mahtain. It was the main contention of the defendants that the plaintiff has got no share in the properties and is not entitled to a decree for partition by metes and bounds. 8. Mr. Sahay, the learned counsel appearing on behalf of the appellants submits that once on the basis of documentary evidence the learned trial court has come to that conclusion only on the ground of one oral witness particularly D.W.4 the learned appellate court has reversed the that finding which is perverse in law. He further submits that earlier one suit was filed by the plaintiff against his step brother in which also the plaintiff has lost against the step brother and thereafter the present suit has been filed. He further elaborates his argument by way of submitting that once documentary evidences are there relying on which the learned trial court has come to that finding, merely on oral evidence of D.W.4 the reversal of the said finding is perverse. He further submits that in light of section 91 and 94 of the Indian Evidence Act, 1872 once the documentary evidences are there, the oral evidence can be excluded. He further submits that in light of section 91 and 94 of the Indian Evidence Act, 1872 once the documentary evidences are there, the oral evidence can be excluded. He took the Court to the findings of the learned trial court as well as the learned appellate court and submits that the learned trial court has rightly concluded that so far parentage is concerned, it is not in dispute and there is no documentary evidence in this regard and the judgment in Title Suit No.86 of 1951 of the court of learned First Additional Munsif, Dhanbad which is exhibit-3 suggest that Adri Mahtain was never called Adua. He submits that the learned trial court relying on this document came to the conclusion that plaintiff is son of Adua and not of Adri. On these grounds, he submits that the law point framed by this Court with regard to the relationship of plaintiff with Adri is required to be made in negative by this Court. So far as law point no.2 is concerned, he has repeated his argument as has been recorded at the beginning of this judgment. On these grounds, he submits that the appeal is fit to be allowed and the two law points may kindly be answered in favour of the appellants. 9. On the other hand, Mr. S.K. Sharma, the learned counsel appearing on behalf of the respondents at the outset draws the attention of the Court to paragraph no.6 of the appellate court judgment and submits that the learned appellate court has considered the statement of P.W.nos. 1, 2, 4 and 5 and thereafter has come to that conclusion that the plaintiff was the son of Adri. He submit that the dispute is with regard to the property in question of schedule-B as there were three sisters namely, Rausa, Bhadri and Adri. He further submits that P.W.1 has admitted that he possessed paternal property at village Bahiradih and considering this the learned appellate court has come to the conclusion that his mother was married to village Bahiradih. He further submits that considering the evidence of D.W.4 the learned appellate court has rightly come to the conclusion that the plaintiff was the son of Adri Mahtain. He submits that relying on this evidence the learned appellate court has rightly turned down the finding of the learned trial court.Mr. He further submits that considering the evidence of D.W.4 the learned appellate court has rightly come to the conclusion that the plaintiff was the son of Adri Mahtain. He submits that relying on this evidence the learned appellate court has rightly turned down the finding of the learned trial court.Mr. Sharma, the learned counsel appearing for the respondents further elaborates his argument by way of submitting that even if the inferior kind of evidence is there, that can be considered in the facts and circumstances of the case in absence of any direct evidence and to buttress his argument, he relied in the case of Hardayan Garodia and Others, plaintiffs v. Gangadhar Periwal and Others, defendants reported in AIR 1963 Calcutta 500, paragraph no. 17 of the said judgment is quoted hereinbelow: “17. Mr. B.N. Sen appearing for the plaintiffs, however, strenuously contended that the plaintiffs were under no obligation to prove an admitted fact The allegation in paragraph 7 of the plaint has not been specifically denied. In fact, the decreeholder defendant tendered the evidence of Gourisankarmull, one of the decree-holders, who has himself admitted that the Tea company owned the tea gardens. The records and proceedings in the various suits prove that the decree-holders admit that the tea gardens belong to Garodia Periwal Tea Co. Having regard to these facts, I must hold that it is proved that the tea gardens and the export quota rights belonged to the partnership firm of Garodia Periwal Tea Co., even though the best evidence to prove this fact has not been tendered. That there is some Justification for Mr. Sen in not tendering the best evidence to prove ownership - in the tea gardens and the export quota rights might be conceded. As indicated before, the decree-holder defendants in the various suits and proceedings previously referred to were themselves confused and had no clear understanding on the question of ownership of the three tea gardens. In the face of all these, if there is no specific denial of the allegation of the fact in the written statement, the plaintiffs might well have been misled Into thinking that the ownership of the partnership in the tea gardens was not seriously disputed and that they were under no obligation to tender the best evidence to prove that the tea gardens and the quota rights belonged to Garodia Periwal Tea Co. As stated by Mr. Hazra, he was himself confused and did not realise the importance of this evidence, indeed the importance of this point was bought out in the discussions during argument-stage, long after evidence was closed.” 10. Mr. Sharma, the learned counsel for the respondents submits that section 50 of the Indian Evidence Act to prove the relationship is a vital consideration to decide the second appeal. He submits that by taking into consideration section 50 of the Indian Evidence Act there are three essential requirements; (1) there must be a case where the court has to form an opinion as to the relationship of one person to another; (2) in such a case, the opinion expressed by conduct as to the existence of such relationship is a relevant fact; (3) but the person whose opinion expressed by conduct is relevant must be a person who as a member of the family or otherwise has special means of knowledge on the particular subject of relationship and to buttress his such argument he relied in the case of Dolgobinda Paricha, Appellant v. Nimai Charan Misra and Others, Respondents reported in AIR 1959 SC 914 , he relied in paragraph nos.6 and 7 of the said judgment, which are quoted hereinbelow: “6. We proceed to consider the second question first. The Evidence Act states that the expression “facts in issue” means and includes any fact from which either by itself or in connection with other facts the existence, non-existence, nature or extent of any right, liability or disability asserted or denied in any suit or proceeding necessarily follow; “evidence” means and includes (1) all statements which the court permits or requires to be made before it by witnesses in relation to matters of fact under enquiry; and (2) all documents produced for the inspection of the court. It further states that one fact is said to be relevant to another when the one is connected with the other in any one of the ways referred to in the provisions of the Evidence Act relating to the relevancy of facts. Section 5 of the Evidence Act lays down that evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are declared to be relevant and of no others. Section 5 of the Evidence Act lays down that evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are declared to be relevant and of no others. It is in the context of these provisions of the Evidence Act that we have to consider Section 50 which occurs in Chapter II, headed “Of the Relevancy of Facts”. Section 50, insofar as it is relevant for our purpose, is in these terms: “50. When the court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact.” On a plain reading of the section it is quite clear that it deals with relevancy of a particular fact. It states in effect that when the court has to form an opinion as to the relationship of one person to another the opinion expressed by conduct as to the existence of such relationship of any person who has special means of knowledge on the subject of that relationship is a relevant fact. The two illustrations appended to the section clearly bring out the true scope and effect of the section. It appears to us that the essential requirements of the section are — (1) there must be a case where the court has to form an opinion as to the relationship of one person to another; (2) in such a case, the opinion expressed by conduct as to the existence of such relationship is a relevant fact; (3) but the person whose opinion expressed by conduct is relevant must be a person who as a member of the family or otherwise has special means of knowledge on the particular subject of relationship; in other words, the person must fulfil the condition laid down in the latter part of the section. If the person fulfils that condition, then what is relevant is his opinion expressed by conduct. Opinion means something more than mere retailing of gossip or of hearsay; it means judgment or belief, that is, a belief or a conviction resulting from what one thinks on a particular question. If the person fulfils that condition, then what is relevant is his opinion expressed by conduct. Opinion means something more than mere retailing of gossip or of hearsay; it means judgment or belief, that is, a belief or a conviction resulting from what one thinks on a particular question. Now, the “belief” or conviction may manifest itself in conduct or behaviour which indicates the existence of the belief or opinion. What the section says is that such conduct or outward behaviour as evidence of the opinion held is relevant and may, therefore, be proved. We are of the view that the true scope and effect of Section 50 of the Evidence Act has been correctly and succinctly put in the following observations made in Chandu Lal Agarwala v. Khalilar Rahman [ILR (1942) 2 Cal 299, 309] : “It is only ‘opinion as expressed by conduct’ which is made relevant. This is how the conduct comes in. The offered item of evidence is ‘the conduct’, but what is made admissible in evidence is ‘the opinion’, the opinion as expressed by such conduct. The offered item of evidence thus only moves the court to an intermediate decision: its immediate effect is only to move the court to see if this conduct establishes any ‘opinion’ of the person, whose conduct is in evidence, as to the relationship in question. In order to enable the court to infer ‘the opinion’, the conduct must be of a tenor which cannot well be supposed to have been willed without the inner existence of the ‘opinion’. When the conduct is of such a tenor, the court only gets to a relevant piece of evidence, namely, the opinion of a person. It still remains for the court to weigh such evidence and come to its own opinion as to the factum probandum — as to the relationship in question.” We also accept as correct the view that Section 50 does not make evidence of mere general reputation (without conduct) admissible as proof of relationship: Lakshmi Reddi v. Venkata Reddi [AIR (1937) PC 201]. 7. It is necessary to state here that how the conduct or external behaviour which expresses the opinion of a person coming within the meaning of Section 50 is to be proved is not stated in the section. 7. It is necessary to state here that how the conduct or external behaviour which expresses the opinion of a person coming within the meaning of Section 50 is to be proved is not stated in the section. The section merely says that such opinion is a relevant fact on the subject of relationship of one person to another in a case where the court has to form an opinion as to that relationship. Part II of the Evidence Act is headed “On Proof”. Chapter III thereof contains a fascicule of sections relating to facts which need not be proved. Then there is Chapter IV dealing with oral evidence and in it occurs Section 60 which says inter alia: 60. Oral evidence must, in all cases whatever, be direct; that is to say— if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it; if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it; if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense in that manner; if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds.” If we remember that the offered item of evidence under Section 50 is conduct in the sense explained above, then there is no difficulty in holding that such conduct or outward behaviour must be proved in the manner laid down in Section 60; if the conduct relates to something which can be seen, it must be proved by the person who saw it; if it is something which can be heard, then it must be proved by the person who heard it; and so on. The conduct must be of the person who fulfils the essential conditions of Section 50, and it must be proved in the manner laid down in the provisions relating to proof. The conduct must be of the person who fulfils the essential conditions of Section 50, and it must be proved in the manner laid down in the provisions relating to proof. It appears to us that that portion of Section 60 which provides that the person who holds an opinion must be called to prove his opinion does not necessarily delimit the scope of Section 50 in the sense that opinion expressed by conduct must be proved only by the person whose conduct expresses the opinion. Conduct, as an external perceptible fact, may be proved either by the testimony of the person himself whose opinion is evidence under Section 50 or by some other person acquainted with the fact which express such opinion, and as the testimony must relate to external facts which constitute conduct and is given by persons personally acquainted with such facts, the testimony is in each case direct within the meaning of Section 60. This, in our opinion, is the true interrelation between Section 50 and Section 60 of the Evidence Act. In Queen Empress v. Subbarayan [(1885) ILR 9 Mad 9, 11] Hutchins, J. said: “That proof of the opinion, as expressed by conduct, may be given, seems to imply that the person himself is not to be called to state his own opinion, but that, when he is dead or cannot be called, his conduct may be proved by others. The section appears to us to afford an exceptional way of proving a relationship, but by no means to prevent any person from stating a fact of which he or she has special means of knowledge.” While we agree that Section 50 affords an exceptional way of proving a relationship and by no means prevents any person from stating a fact of which he or she has special means of knowledge, we do not agree with Hutchins, J. when he says that the section seems to imply that the person whose opinion is a relevant fact cannot be called to state his own opinion as expressed by his conduct and that his conduct may be proved by others only when he is dead or cannot be called. We do not think that Section 50 puts any such limitation.” 11. We do not think that Section 50 puts any such limitation.” 11. He further submits that the principle of this judgment has further been considered by the Full Bench of Punjab and Haryana High Court in the case of Amar Singh, v. Chhaju Singh and Another, reported in AIR 1973 Punjab and Haryana 213 (Full Bench). He further submits that admission is substantive piece of evidence of the fact admitted and that admission duly proved are admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether that party when appearing as witness was confronted with those statements in case it made a statement contrary to those admission and to buttress his such argument, he relied in the case of Union of India, v. Moksh Builders and Financiers Ltd. and Others, etc., reported in AIR 1977 SC 409 . Mr. Sharma, the learned counsel appearing for the respondent has put much emphasis in his argument on section 60 of the Indian Evidence Act. On these grounds he submits that the appeal is fit to be dismissed. 12. On the above facts and submissions of the learned counsels appearing on behalf of the parties, the law point framed by this Court by order dated 11.01.1999 is being answered by this Court in the following terms: So far as the law point no.1 is concerned with regard to section 50 of the Evidence Act the special means of knowledge is one of the ingredients to decide the claim in light of section 50 of the Evidence Act in which judgment relied by Mr. Sharma, the learned counsel appearing on behalf of the respondents submits that in the case of ‘ Dolgobinda Paricha, v. Nimai Charan Misra and Others, (supra), the witness namely Janardan Mishra has attended the marriage of Malabati as daughter of Loknath and he has also attended the marriages and upnayan ceremony of grand children of Loknath and in that view of the matter, he was having the special knowledge of conduct and in that scenario the Hon’ble Supreme Court has held that section 50 of the Evidence Act comes into play and the circumstances of section 50 of the Evidence Act as has held by the Hon’ble Supreme Court in paragraph no.6 and 7 as referred by Mr.Sharma, the learned counsel appearing for the respondents. Looking into the evidence of D.W.4 which has been placed by the learned counsel for the appellants as well as the respondents elaborately it transpired that he has admitted that he has not attended the marriage of Adri. He was not knowing the birth of the plaintiff and simply saying so that the plaintiff was the son of Adri without any special knowledge in light of section 50 of the Evidence Act in absence of knowledge not helping the respondents. It is prima facie held that his evidence is not coming within the purview of section 50 of the Evidence Act and the dispute is arising of relationship of mother and son and identical was the situation in the evidence of the P.W.2, 4 and 5. It is well settled that witnesses who are examined to depose to the genealogy would have to depend on their special means of knowledge which may have come to them through their ancestors. There is a great risk and a serious danger involved in relying solely on the evidence of witnesses given from pure memory because the witnesses who are interested normally have a tendency to draw more from their imagination or turn and twist the facts that they may have heard from their ancestors in order to help the parties for whom they are deposing. The D.W.4 is admittedly 80 years of age and he has admitted that he has not attended the marriage. Moreover, considering that in Title Appeal No.109 of 1939, exhibit-G/1, Adri is shown to be widow of late Johali Mahto, wherein the entire pleadings it was claimed that she was wife of Chhotu Mahto, however, in the said decree Rausa Mahtain is said to be wife of late Chhotu Mahto so there is documentary evidence to suggest that Adri was the wife of late Johali Mahto and in that view of the matter, prima facie, it appears that the ingredients of section 50 of Evidence Act are not fulfilled and accordingly law point no.1 is answered in view of the materials discussed therein normally suggest that the plaintiff was not the son of Adri Mahtain and the documentary evidence to that effect was held that by the leraned trial court, in exhibit-M and G/1, particularly, which is the decree of the learned court in Title Appeal No.109 of 1936. So far as law point no.2 is concerned in light of the discussions made to decide law point no.1 whether the evidence of P.W.2, 4 and 5 was admissible under section 50 of the Evidence Act, they are not admissible. In order to bring the evidence of such witnesses as has been discussed by the appellate court the principles are required to be considered that the relationship for connection, however, the relationship or the connection however close it may be, which the witness bears to the persons whose pedigree is sought to be deposed by him; and the nature and character of special means of knowledge is required to be one of the parameters to consider such witnesses, one of which is derived under all means of special knowledge as purely from imagination and the evidence of the witness must be substantially corroborated as far as time and memory and these ingredients are lacking in the case in hand and the documentary evidence suggest that plaintiff was not the son of Adri Mahtain. Adri was not wife of Chothu Mahto and she was wife of Johali Mahto and in that view of the matter the law point no.2 is answered by way of saying that prima facie it suggest that the plaintiff was not son of late Adri Mahtain. 13. In view of above discussion and after considering witnesses corroboration and that the documents are not being rightly considered by the learned appellate court, the judgment and decree dated 18.03.1998 and 28.03.1998 passed by learned Vth Additional District Judge, Dhanbad in Title Appeal No.57 of 1985 whereby the judgment and decree dated 01.10.1985 passed by the learned trial court has been reversed is set aside. However, Title Appeal No.57 of 1985 is restored to its original file to decide afresh in light of the discussions made hereinabove and as per the parameters of section 50 of the Evidence Act as well as the documentary evidence. 14. Second Appeal No.48 of 1998(R) is disposed of in the above terms. 15. The Title Appeal No.57 of 1985 shall be listed before the learned competent court on 13.02.2023. 16. The parties are directed to appear before the concerned learned appellate court on the said date and the learned concerned appellate court will decide the appeal afresh in accordance with law. 17. 15. The Title Appeal No.57 of 1985 shall be listed before the learned competent court on 13.02.2023. 16. The parties are directed to appear before the concerned learned appellate court on the said date and the learned concerned appellate court will decide the appeal afresh in accordance with law. 17. Let the lower court records be sent back to the learned appellate court forthwith.