APPEAL FROM THE APPELLATE DECREE NO. 174 OF 1991
Against the judgment and decree dated 14.8.1991 and
22.8.1991
respectively passed by 6th Additional District Judge,
Palamau at Daltonganj in T.A. No. 32 of 1989 arising out of
judgment and decree dated 22.5.1989 9.6. 1989 respectively
passed by Sub Judge -III, Daltonganj in Partition Suit No. 9 of
1985.
Mosomat Phulmani & others .......Appellants
Vs.
Kodan Choudhary and others ... .....Respondents
For the Appellants : Mr. Manjul Prasad, Sr. Advocate
For the Respondents : Mr. Amar Kumar Sinha, Bhaiya Bishwajeet Kumar
PRESENT
HON’BLE MR. JUSTICE PRASHANT KUMAR
C.A.V. ON 22.06.2011 DELIVERED ON 15 /07/2011
Prashant Kumar,J: This appeal is directed against the judgment dated
14.8.1991 passed by 6th Additional District Judge, Palamau at
Daltonganj in Title Appeal No. 32 of 1989 whereby he reversed the
judgment of Sub Judge-III , Daltonganj dated 22.5.1989 in partition suit
no. 9 of 1985 whereby Sub Judge was pleased to dismiss the suit.
2. The facts giving rise to this appeal in brief is that Gokhul Noniya
has two sons and two daughters, namely, Deoki Nonia, Laljee Nonia,
Gauri Devi and Muner Devi. It is further stated that plaintiff/respondent
no. 1 is the son of Deoki Nonia, whereas defendants are descendants
of Laljee Nonia. It is stated that after the death of Gokhul Nonia some
time in the year 1930, his estate devolve in between Deoki Nonia and
Laljee Nonia. Thus Deoki Nonia and Laljee Nonia were entitled to get
half share in the property of Gokhul Noniya. It is stated that Deoki
Nonia died leaving behind plaintiff and defendnat no. 17 to 24.
However, aforesaid defendants 17 to 24 had relinquished their share in
favour of plaintiff, thus the plaintiff become the sole owner of the half
share of properties devolve by succession in Deoki Nonia. Accordingly,
present suit filed for partition claiming half share in the said properties
details of which given in schedule A to the plaint.
3. It appears that the defendant 1,2,3,5,6, and 11 to 16 had filed
joint written statement and it is stated that Deoki Nonia is not the son
of Gokhul Noniya rather he is son of Ramsunder Nonia of Village
Khamdhi P.S.- Daltonganj, District- Palamau. Accordingly, it is stated
that after the death of Gokhul Noniya in the year 1936 his widow Jaso
Kuer and only son Laljee Nonia inherited his property. It is wrong to
say that Gokhul Nonia died in the year 1930 in the State of jointness
with Deoki Nonia. Accordingly, it is pleaded by the contesting
defendants that Deoki Nonia and his dependents, namely
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plaintiff and defendant no. 17 to 24 are not entitled to get any share in
the suit property.
4. The record shows that defendant no. 17 to 24 also filed a
written statement and they supported the case of plaintiff/respondent.
5. It then appears that in the trial court, both the parties adduced
oral and documentary evidence in support of their case. The trial court
( Sub Judge-III, Daltonganj) vide its judgment dated 22.5.1989
dismissed the suit on contest with cost. Thereafter
plaintiff/respondent filed appeal i.e. Title Appeal No. 32 of 1989 and
the same was allowed by the impugned judgment. Against that the
present appeal filed.
6. It appears that vide order dated 24.7.1992 this appeal admitted
on the following substantial question of law :-
A. Whether the learned lower appellate court could have
reversed the judgment and decree passed by the trial court
without assigning its own reason ?
B. Whether the learned lower appellate court erred in deciding
the question of relationship without considering the evidence in
the light of section 50 of the Evidence Act?
7. It is submitted by Sri Manjul Prasad, learned Senior Advocate
appearing for the appellant, that learned trial court had not assigned
any reason as to why it reversed the finding of trial court. It is
submitted that the trial court had given good reason for not accepting
the documentary evidence adduced by the plaintiff, but the appellate
court without assigning any reason had accepted said documents.
Therefore the learned appellate court had committed serious illegality
by reversing the Judgment of the trial court. It is further submitted that
the learned appellate court had not appreciated evidences in the light
of section 50 of the Evidence Act. Accordingly it is submitted that the
impugned judgment and decree cannot be sustained in this appeal.
8. On the other hand, Sri Bhaiya Bishwajeet Kumar appearing for
the plaintiff/respondent submits that the learned appellate court
considered oral evidence adduced by the party in the light of provision
contained under section 50 of the Evidence Act, which manifest from
the finding of appellate court at paragraph no. 10 to 14. It is submitted
that in the aforesaid paragraphs, learned appellate court had given its
own reason for accepting the evidence adduced on behalf of
plaintiff/respondent and on thorough discussion came to the conclusion
that the finding of the trial court that Deoki Nonia was not the son of
Gokhul Noniya is not sustainable. It is submitted that the appellants, in
the garb of aforesaid substantial questions of law, want that this court
will re-appreciate the evidence, which is beyond the scope of Second
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Appeal. Accordingly, it is submitted that the present Second Appeal is
liable to be dismissed.
9. Having heard the submission, I have gone through the record.
From perusal of impugned judgment, I find that the learned appellate
court at paragraph no. 10 of the judgment had stated that since the
question to be decided in this appeal is whether Deoki Nonia,( father
of plaintiff/appellant), was the son of recorded tenant Gokhul Noniya
and as there is no direct oral evidence to prove aforesaid relationship,
it is incumbent upon the court to form an opinion regarding the
relationship as per the provision contained under section 50 of the
Evidence Act. It appears that the learned appellate court had discussed
the scope of the provision contained under section 50 of the Evidence
Act and proceeded to consider the evidence adduced on behalf of
parties in that regard. It further appears that learned appellate court
after discussing the evidence of P.W. 2, P.W. 3, P.W. 4, P.W. 7 had
given a finding that they had special knowledge about the relationship
of Gokhul Noniya with Deoki Nonia, accordingly the learned appellate
court below came to the conclusion at the end of paragraph no. 11 of
its judgment that the oral evidence of aforesaid witnesses is relevant
to prove the relationship of Deoki Nonia with Gokhul Nonia under
section 50 and 60 of the Evidence Act.
10. From perusal of paragraph no. 12 of the impugned judgment, I
find that the learned court below considered documentary evidence
adduced on behalf of the plaintiff and after examining Exts.- 3,4,5,6,
and 7 held that all the documents show that Deoki Nonia and Laljee
Nonia are sons of Gokhul Noniya. At paragraph no. 13 of the impugned
judgment, the learned court below considered the oral evidence of
D.W. 1, D.W. 2, D.W. 3, D.W. 4, 5,6,7,8,9, and 12 and concluded that
their evidences with regard to relationship of Deoki Nonia with Gokhul
Nonia are not in consonance with section 50 of the Evidence Act. The
learned court below had given finding that D.W. 2 in para 30 of his
cross examination admitted that Deoki Nonia and Laljee Nonia were
brothers. So far D.W. 3 is concerned, appellate court said that this
witness have no special means of knowledge with regard to
relationship of Deoki with Gokhul. The appellate court below further
held that D.W. 4 not stated anything about the relationship of Deoki
with Gokhul. So far D.W. 5 is concerned, the appellate court below
again come to the conclusion that this witness had no special
knowledge about the family of Gokhul Noniya. So far D.W. 6 and 7 are
concerned, it is stated that they are hear say witnesses. It is stated by
learned appellate court that D.W. 8 has not stated anything about the
special means of knowledge regarding the relationship of Deoki with
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Gokhul. So far D.W. 9 is concerned, it is stated that at paragraph no. 5,
she stated that after the death of Gokhul Noniya, Deoki Nonia
performed last rituals. Thus she admitted that Deoki is son of Gokhul.
D.W. 12 had accepted at paragraph 21 that he has no personal
knowledge that the Deoki was the son of Sunder. D.W. 13 is defendant
no. 16 himself.
11. From paragraph no. 14 of the judgment, I find that learned
appellate court had considered the documentary evidence adduced by
the defendants and after considering the same had given a definite
finding that the said documents are not relevant for deciding the
parentage of Deoki Nonia.
12. Thus from perusal of the impugned judgment, I find that the
learned appellate court below thoroughly discussed evidence, keeping
in view section 50 of the Evidence Act. I also meticulously examined
oral and documentary evidences adduced by both the parties and
found that the reason given by the appellate court below are correct
and does not require any interference.
13. The documentary evidence adduced by the plaintiff/respondent
no. 1 are public documents and the same were exhibited without any
objection. Under the Evidence Act, there is a presumption of
genuineness of public document unless the same is proved otherwise.
In the instant case defendants/appellants had not adduced any
evidence to show that Ext.- 3,4,5,6 and 7 are forged and fabricated
documents. The learned trial court ( Sub Judge -III, Daltonganj) had
rejected the said documents on irrelevant ground. Ext.-III is certified
copy of Register-II which was prepared by the government officials as
per provisions contained under section 3 of Bihar Tenant’s Holdings
( Maintenance of Records), Act. As per the aforesaid provision, Circle
Officer prepares Register -II on the basis of name of raiyats find place
in survey khatiyan. There is provision in the aforesaid Act for raising
objection against the wrong entry, but in the instant case, there is
nothing on record to show that any objection raised by
defendant/appellant. Under the said circumstance, finding of learned
trial court appears to be misconceived. Ext. – 4 & 5 were discarded by
the trial court by saying that the same were prepared on the basis of
information given by Deoki Nonia. Defendants brought no evidence to
impeach Ext.-4&5. It is wroth mentioning that in a mutation
proceeding, father of defendants/appellants admitted that Deoki Nonia
is son of Gokhul Nonia. Ext.-6 is the certified copy of that mutation
proceeding, but learned trial court refused to accept the same by
saying that it is not clear who admitted aforesaid fact. Since the case is
in between Laljee Nonia and plaintiff, therefore, it is presumed that the
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same was admitted by the parties of that case. Thus the aforesaid
finding of learned trial court also appears to be incorrect. The learned
trial court had rejected Ext-7, certified copy of Khas Mahal Continous
Khatiyan, by saying that there is no correction in the Ext-G filed by the
defendants. In this respect, it is worth mentioning that Ext.-7 and Ext.-
G are certified copies of Khatiyan of different villages. Ext.-G relates
to village-Tawar, whereas Ext.-7 relates to village-Rajderba. Thus,
aforesaid findings given by learned trial court are without application
of mind.
14. Under the said circumstance, I find that in fact trial court had not
appreciated evidence correctly. I further find that learned appellate
court after re-appreciating the evidence had rightly concluded that
Deoki Nonia was the son of Gokhul Nonia.
15. I find that learned appellate court assigned sound and valid
reasons for reversing the judgment and decree of the learned court
below. I further find that the learned lower appellate court decided the
question of relationship after appreciating the evidence in the light of
section 50 of the Evidence Act.
16. In view of the discussions made above, I find no merit in this
appeal, the same is dismissed. However parties shall bear their own
cost.
( Prashant Kumar,J.)
Jharkhand High Court, Ranchi
Dated 15 /07/2011
Sharda/NAFR