). =================================================== Sidheshwar Prasad & Ors v. Siyasaran Prasad & Ors
Case Details
Patna High Court FA No.690 of 1978 dt. 02-04-2013 1 IN THE HIGH COURT OF JUDICATURE AT PATNA First Appeal No.690 of 1978 (Against the judgment and decree dated 08.06.1978 passed by Subordinate Judge, Barh in Title Partition Suit No.6 of 1976). =================================================== Sidheshwar Prasad & Ors .... .... Plaintiffs-Appellants Versus Siyasaran Prasad & Ors .... .... Defendants-Respondents =================================================== Appearance : For the Appellant/s : Mr. S.S.Dvivedi, Sr. Advocate Mr. Rameshwar Prasad Singh Mr. Vidya Sagar Mr. Samir Kumar Ranjan, Advocates with him. For the Respondent/s : Mr. Nand Lal Prasad Sinha Mr. Satish Chandra Singh Mr. Sheo Sharan Mr. R.Prasad Mr. Deo Nath Prasad Mr. Shailendra Kumar Sinha, Advocates. =================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO CAV JUDGMENT Date: 02-04-2013 Mungeshwar Sahoo, J. 1. The original plaintiff-appellant, Jashoda Devi has filed this First Appeal against the judgment and decree dated 8th June, 1978 passed by the learned Subordinate Judge, Barh in Title Partition Suit No.6 of 1976 whereby the learned court below dismissed the plaintiff’s suit for partition. During the pendency of the appeal, the sole appellant died and her legal representatives have been substituted. 2. The plaintiff-appellant filed the said suit for partition of her half share in the suit property. According to the Patna High Court FA No.690 of 1978 dt. 02-04-2013 2 plaintiffs, the parties are members of joint family and there has been no partition in the joint family property. Mainly the case is that the common ancestor Triloki Mahto had two sons namely Nilkanth Mahto and Horil Mahto. Nilkanth Mahto had 4 sons namely Budhu Mahto, Karoo Mahto, Pairu Mahto and Somar Mahto. Horil Mahto had also 3 sons namely Damari, Umraon and Chamari. Out of the aforesaid 7 grandsons of Triloki Mahto, the 4 grandsons namely Pairu Mahto, Somar Mahto, Umraon Mahto and Chamari Mahto died issueless in the state of jointness before survey operation. The first son of Nilkanth Mahto namely Budhu Mahto also died prior to survey leaving behind his son, Saudi who in turn also died in jointness before survey leaving his widow namely Jhalo Kuer. The second son of Nilkanth namely Karoo Mahto died in Jeith 1345 Fasli(1938) leaving behind his widow, Bechani and daughter, Jashoda, the plaintiff. The second daughter, Janki had predeceased Karoo. After the death of Karoo in the year 1938, Bechani came in possession of the share of her husband, Karoo and her name was mutated along with Lachuman and Banshi who are representing the branch of Horil Mahto being the sons of Damari. Bechani died in the year 1958 and Jhalo also died in the year 1974, therefore, the plaintiff came in joint possession with the
Legal Reasoning
defendants. Some of the ancestral lands have already been sold and some properties have been purchased from the joint family income in Patna High Court FA No.690 of 1978 dt. 02-04-2013 3 the name of Banshi. Some properties have been exchanged. The details of the properties have been mentioned in different schedules of the plaint. Accordingly, the plaintiffs claimed half share in the suit property. 3. The defendants filed contesting written statement. Besides taking various legal and ornamental pleas, the defendants mainly contended that Budhu Mahto was not the son of Nilkanth Mahto rather Saudi was one of the sons of Nilkanth who died before survey operation leaving behind his widow, Jhalo and a daughter, Jashoda, the plaintiff. Since Saudi died prior to survey, his widow, Jhalo was only a maintenance holder as such, the plaintiff being her daughter did not inherit any property. Plaintiff is not the daughter of Karoo Mahto. Karoo Mahto also died in the year 1926 leaving behind his widow, Bechani Devi who also died in the year 1940. On the death of Saudi and Karoo, the property devolved on the defendants by principle of survivorship. There had already been partition between the defendants in the year 1948. After this partition, Banshi and Rameshwar have purchased lands in their separate names which are their self-acquired properties. 4. On the basis of the aforesaid pleadings of the parties, the learned trial court framed the following issues: I. Is the suit as framed maintainable? Patna High Court FA No.690 of 1978 dt. 02-04-2013 4 II. Has the plaintiff got any valid cause of action and right to sue? III. Is the suit barred by law of limitation, adverse possession and ouster? Is the suit under valued and the court fee paid insufficient? IV. V. Is plaintiff(Jasoda Devi) the daughter Karoo Mahto? VI. Did Karoo died in the year 1345 FS(1938) as alleged by the plaintiff or in the year 1926 alleged by the defendant? VII. Did Bechani died in the year 1958 as alleged by the plaintiff or in the year 1940 as alleged by the defendants? VIII. Has the plaintiff got unity of title and possession along with IX. X. the defendants with respect to the suit properties? Is the plaintiff entitled to a decree for partition? If so, to what extent? To what relief, if any is the plaintiff entitled? 5. the court below came After trial, to the conclusion that Karoo died sometimes before the year 1927 and the plaintiffs failed to prove that Karoo had died in the year 1938 vide paragraph 14 and 29 of the impugned judgment. The plaintiff has not been able to show that she is daughter of Karoo Mahto vide paragraph 50. The plaintiff has not been able to show that Bechani died in the year 1958. On these findings, the trial court dismissed the plaintiff’s suit. 6. It may be mentioned here that during the pendency of this First Appeal, an I.A. has been filed on behalf of the appellants being I.A. No.2657 of 2012 under Order 41 Rule 27 C.P.C. Patna High Court FA No.690 of 1978 dt. 02-04-2013 5 By terms of order dated 14.05.2012, it was directed that this I.A. being I.A. No.2657 of 2012 shall be considered at the time of hearing itself. Accordingly, I heard the parties on this I.A. No.2657 of 2012 also. 7. This I.A. has been filed by the appellant praying for admitting the certified copy of the plaint of Title Suit No.168 of 2010 as additional evidence in this First Appeal. 8.
Legal Reasoning
The learned senior counsel, Mr. S.S. Dvivedi appearing on behalf of the appellants submitted that since the plaint of Title Suit No.168 of 2010 was presented by the respondents during the pendency of this appeal, the document was not available at the time of hearing of the suit. This plaint is the subsequent document, therefore, the appellants are filing the said plaint for consideration as additional evidence because the document is an important piece of evidence in this appeal for just decision of the question in controversy between the parties. According to the learned counsel, the respondents herein filed joint contesting written statement alleging that Nilkanth Mahto had no son named Budhu Mahto and the plaintiff is the daughter of Saudi Mahto and not the daughter of Karoo Mahto. Karoo Mahto died issueless whereas in the plaint of Title Suit No.168 of 2010 filed by the respondent nos.8 and 9 of this appeal, it is clearly mentioned that Budhu Mahto was the son of Nilkanth Mahto and the Patna High Court FA No.690 of 1978 dt. 02-04-2013 6 plaintiff, Jashoda is the daughter of Karoo Mahto. These defendants who are plaintiffs in Title Suit No.168 of 2010 contested hotly the present suit on these two questions i.e. whether Budhu was the son of Nilkanth or not and subsequently, whether the plaintiff is daughter of Karoo or daughter of Saudi and after obtaining finding in their favour, now they have admitted the case of the plaintiff pleaded in the present suit giving rise to this First Appeal. Therefore, according to the learned counsel, the respondents by suppressing the true fact obtained a decree in their favour which amount to playing fraud on the court. Admission is the best evidence unless it is explained but in the present case, no counter-affidavit has been filed by the respondents and as such, there is no explanation as to under what circumstances, these admissions have been made in the plaint by the respondents. Moreover, this plaint is admitted document which has been filed by the respondent nos.8 and 9. They have not denied that it is not their document. The copy of this I.A. was served on the learned counsel much earlier to the hearing of this appeal but nothing has been denied by the respondents. In other words, they have admitted the statements made in the plaint and the genuineness of the document. Therefore, this document may be admitted as additional evidence in view of the decision reported in 2013(1) PLJR 48 Supreme Court(Union of India vs. Ibrahimuddin and another). Patna High Court FA No.690 of 1978 dt. 02-04-2013 7 9. On the other hand, the learned counsel for the respondents vehemently opposed the prayer made by the appellants. According to the learned counsel, this plaint is not essential for deciding the issue in controversy between the parties. It is not the case that on the basis of the evidence available on record, no satisfactory judgment can be pronounced. Therefore, the plaint cannot be admitted as additional evidence. The learned counsel further submitted that no parties can be allowed to produce additional evidence whether oral or documentary in the Appellate Court and the exception has been provided in Order 41 Rule 27 C.P.C. Therefore, unless any of the clauses mentioned in Order 41 Rule 27 covers the case of the appellants, the appellants cannot be allowed to adduce additional evidence. Here, none of the clauses provided in Rule 27 of Order 41 is applicable. Therefore, the I.A. may be rejected. 10. So far the merit of the case is concerned, the learned counsel for the appellants submitted that the Lower Court has not considered properly evidences adduced on behalf of the parties. The Lower Court had not considered the evidence of P.W.1, P.W.4, P.W.9, P.W.10, P.W.14, P.W.16(the plaintiff) on the question as to whether Jashoda was the daughter of Karoo Mahto or not and whether Karoo died in the year 1938. All these witnesses have clearly deposed regarding the relationship of plaintiff with Karoo Mahto and their Patna High Court FA No.690 of 1978 dt. 02-04-2013 8 evidences are admissible under Section 50/60 of the Indian Evidence Act but the court below has not examined the evidences in that light and wrongly relied upon the evidence produced by the defendants which are not admissible under Section 50/60 of Indian Evidence Act. Over and above, now the defendant nos.8 and 9 who filed the joint written statement have admitted this fact in the plaint presented by them being Title Suit No.168 of 2010. So far year of death of Karoo Mahto is concerned also, only on presumption, the Lower Court recorded the finding that Karoo Mahto must have died prior to 1927 and likewise, the court below also presumed the year of death of the mother of plaintiff, Most. Bechani. Likewise, the trial court has also not considered the documentary evidences in their right perspective and recorded wrongly the year of death of Karoo Mahto and Bechani Devi. 11. The learned counsel for the appellants further submitted that the witnesses examined on behalf of the plaintiff i.e. P.W.1, the son of the plaintiff and other witnesses and P.W.16, the plaintiff herself have clearly stated about the year of death of Karoo Mahto as well as Bechani Devi but the said witnesses were not even cross-examined on this point nor any suggestion has been given that they have falsely deposed about the year of death of Karoo and Bechani and not even suggested that Karoo died in the year 1926 and Patna High Court FA No.690 of 1978 dt. 02-04-2013 9 Bechani died in the year 1940. P.W.16 in her cross-examination itself has reiterated the year of death of Karoo and Bechani but no suggestion even has been given to her that whatever statement she made in cross-examination is false. The learned counsel further submitted that no such suggestion has been given to P.W.1 and other witnesses. Further, the trial court has discarded wrongly the documentary evidences Exhibit 3, Exhibit 1 and 1/A from which it will be evident that at least Karoo was alive in the year 1929. Therefore, apparently the case of the defendant that he died in 1926 is wrong. According to the learned counsel, since the plaintiff is claiming natural succession to the property of Karoo Mahto in view of Hindu Women’s Right to Property Act, 1937 and the defendants are denying this natural succession on the ground that Karoo Mahto died in the year 1926 and Bechani Devi died in the year 1958, therefore, it is for the defendant to have proved by cogent evidence that in fact, Karoo died in the year 1926. Therefore, the property will not devolved by natural succession according to the Hindu Women’s Right to Property Act, 1937 but the court below placed wrong onus on the appellant. On these grounds, the learned counsel submitted that the impugned judgment and decree are liable to be set aside and the plaintiff’s suit be decreed. 12. On the other hand, the learned counsel for the Patna High Court FA No.690 of 1978 dt. 02-04-2013 10 respondents submitted that the subsequent pleading in the Title Suit No.168 of 2010 will not affect the merit of the case and on that ground, the findings recorded by the trial court cannot be set aside. After considering the oral as well as documentary evidences, the court below has rightly recorded the finding that the plaintiffs failed to prove that Karoo died in the year 1938 and Bechani died in the year 1958. Since the plaintiff is claiming partition, the onus is on the plaintiff to prove that Karoo died in the year 1938 and Bechani died in the year 1958 and Jashoda Devi, the plaintiff is the daughter of Karoo Mahto. Therefore, the trial court has rightly placed the onus on the plaintiff. Even if the case of the defendant is disbelieved that Karoo died in the year 1926 then also the plaintiff’s case will not automatically stand proved. There is no illegality in the impugned judgment and decree as such, the same cannot be interfered with in First Appeal. On these grounds, the learned counsel submitted that the First Appeal is liable to be dismissed with cost. 13. In view of the above contentions of the parties, the points arises for consideration is as to “whether Jashoda is the daughter of Karoo Mahto and Karoo died in the year 1938 after coming into force of the Hindu Women’s Right to Property Act, 1937 or in the year 1926 and Bechani died in the year 1958 after coming into force of the Hindu Succession Act, 1956 or in the year 1940” and Patna High Court FA No.690 of 1978 dt. 02-04-2013 11 “whether the impugned judgment and decree are sustainable in the eye of law?” 14. In this case, according to the plaintiff, Nilkanth had 4 sons namely Budhu, Karoo, Pairu and Somar and plaintiff is the daughter of Karoo whereas according to the defendants, Nilkanth had no son named Budhu Mahto. In fact, Saudi Mahto was the son of Nilkanth Mahto who died prior to survey leaving behind the plaintiff as daughter as such, plaintiff is not the daughter of Karoo. In support of their respective cases, the parties have adduced evidences. 15. P.W.1 is the son of plaintiff who has stated that Karoo Mahto was his “nana” and Saudi Mahto was the son of Budhu Mahto. Budhu Mahto died prior to survey. At paragraph 4, he has clearly stated that Karoo Mahto died in the year 1938 leaving behind his widow, Bechani Devi and the plaintiff, Jashoda Devi. It may be mentioned here that no cross-examination has been made on this point by the respondent. No suggestion has even been given to this witness that Jashoda is not the son of Karoo and Karoo did not died in the year 1938 rather he died in 1926, as pleaded by the defendants. Only general cross-examination has been made. Likewise, the other witnesses P.W.4, P.W.9, P.W.10, P.W.11, P.W.13, P.W.14, P.W.16 all have deposed regarding relationship of Jashoda with Karoo Mahto. P.W.14 is the husband of Jashoda Devi whereas P.W.16 is Jashoda Patna High Court FA No.690 of 1978 dt. 02-04-2013 12 Devi herself, the plaintiff. Out of the said witnesses, the evidences of P.W.9, P.W.10, P.W.14 are admissible according to Section 50 of the Evidence Act. They have expressed their special means of knowledge about the relationship of Jashoda with Karoo Mahto. 16. On the contrary, the defendants have also adduced evidences in support of their case. According to D.W.2, Jashoda is the daughter of Saudi Mahto. D.W.3 stated that Karoo Mahto died issueless. Such is the evidence of D.W.4. D.W.6 has only stated that he has not seen Karoo Mahto. D.W.8 has stated that Karoo Mahto died issueless. His widow has died 40 years ago. D.W.10 has stated that he had heard the name of Saudi Mahto and Karoo Mahto. He had not seen widow of Karoo Mahto. He has further stated that he is in talking term with the wife of Saudi Mahto. Therefore, his evidence is not on the point of relationship of plaintiff with Karoo Mahto. D.W.11 has stated that wife of Karoo Mahto died 40 years ago and Karoo had no daughter. He had not seen Karoo. This witness is on the question as to when widow of Karoo died and not on the question of relationship. D.W.13 has also stated that he had neither seen Karoo nor Saudi. D.W.15 has stated that Bechani was the widow of Karoo. She died 30-34 years ago. Bechani had no issue. D.W.27 has stated that prior to attaining his sense, Karoo has died and 40 years ago, Bechani Devi died and they had no issue. D.W.30 is the defendant Patna High Court FA No.690 of 1978 dt. 02-04-2013 13 no.14. He has supported the case pleaded in the written statement. D.W.33 has stated that 38 years ago, wife of Karoo died and Karoo Mahto had no daughter. D.W.38 has stated that Karoo Mahto died in 1926 and Bechani Devi died in the year 1940. The age of this witness is 46 years in the year 1978, therefore, according to calculation, his year of birth will be 1932. He is saying that Karoo died in the year 1926 i.e. prior to the birth of this witness. Likewise, his statement that Bechani died in the year 1940 i.e. when this witness was aged about 8 years. In my opinion, this witness is not competent at all to depose the year of death of either Karoo or Bechani. The other witnesses are not on these points. 17. From the above evidences, it appears that the defendants have adduced negative evidences to the effect that Karoo died issueless and Saudi was the brother of Karoo. They came with a plea that plaintiff is the daughter of Saudi and on this plea they tried to displace the natural succession of the property of Karoo because according to them, Saudi died prior to revisional survey and further, Karoo died in the year 1926. So far the year of death of Karoo is concerned, although, there is pleading that he died in the year 1926, there is no oral evidence to that effect. The witnesses examined have only stated that Karoo died 38 years ago or 39 years ago or likewise. The witness who has stated that Karoo died in the year 1926 and Patna High Court FA No.690 of 1978 dt. 02-04-2013 14 Bechani died in the year 1940 are incompetent to depose. So far relationship of plaintiff, Jashoda with Karoo is concerned, the plaintiffs-appellants have filed I.A. referred to above under Order 41 Rule 27 C.P.C. In the plaint presented by the defendant nos.8 and 9, they have clearly admitted that Budhu was the brother of Karoo i.e. son of Nilkanth and Saudi was the son of Budhu. Therefore, they admitted the plaintiff’s case in this present suit. 18. In AIR (38) 1951 SC 193 Arjan Singh Vs Kartar Singh the Apex Court has held that the discretion to receive and admit additional evidence is not an arbitrary one, but is a judicial one circumscribed by the limitation specified under Order 41 Rule 27 of the Code of Civil Procedure. In AIR 1963 SC 1526 K. Venkataramiah Vs. A. Seetharama Reddy and others the five judges Bench of the Apex Court at paragraph 10 has held as follows : “(10) Section 107 of the Code of Civil Procedure empowers the appellate court “to take additional evidence or to require such evidence to be taken,” “subject to such conditions and limitations as may be prescribed.” Rule 27 of O. 41 of the Code of Civil Procedure prescribes the conditions and limitations in the matter. The rule first lays down that the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate court. It then proceeds to lay down two classes of cases where the appellate court may allow additional evidence to be produced. One class is where the Court appealed from has refused to admit evidence which ought to have been admitted. The other class is whether the appellate court requires such additional evidence for itself either to enable it to pronounce judgment or for any other substantial cause. The second class of the rule requires that Patna High Court FA No.690 of 1978 dt. 02-04-2013 15 when additional evidence to be produced by an appellate Court the Court shall record the reason for its admission”. is allowed 19. In the said decision at paragraph 16, it has been held by the Apex Court that “Apart from this, it is well to remember that the appellate court has the power to allow additional evidence not only if it requires such evidence “to enable it to pronounce judgment” but also for “any other substantial cause”. There may well be cases where even though the court finds that it is able to pronounce judgment on the state of the record as it is, and so, it cannot strictly say that it requires additional evidence “to enable it to pronounce judgment”, it still considers that in the interest of justice something remain obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner”. 20. In the case of Union of India vs. Ibrahimuddin and another, 2013(1) PLJR 48 Supreme Court, the Apex Court has reiterated the same view. 21. In the present case, admittedly, at the time of pendency of the suit this plaint was not available. The plaint was presented only in the year 2010. Therefore, this document i.e. the plaint is the subsequent document which came into existence after disposal of the suit. One of the issues between the parties is as to Patna High Court FA No.690 of 1978 dt. 02-04-2013 16 whether Budhu was the son of Nilkanth or Saudi was the son of Nilkanth and whether plaintiff is the daughter of Saudi or daughter of Karoo. Defendant nos.8 and 9 who are the plaintiffs in this Title Suit No.168 of 2010 have admitted the case of the plaintiff in the present suit i.e. in the plaint at paragraph 2 and 4, they have clearly admitted that Budhu was the son of Nilkanth who died leaving behind a son, Saudi and Karoo died leaving behind Jashoda and Janki, two daughters. This is the admission of the respondents who filed the written statement in the present suit at our hand disputing the fact claimed by the plaintiff. Therefore, they are blowing hot and cold. Before the trial court, they concealed the true fact and invited the plaintiff to contest this question although, they were knowing fully that Budhu was the son of Nilkanth and plaintiff was the daughter of Karoo. They have already appeared in this First Appeal and appeal is in continuation of suit. They admitted the fact during the pendency of the lis. 22. It is settled principles of law that admission is the best evidence. Here, the defendants have admitted the relationship of Jashoda with Karoo in this subsequent document. In my opinion, therefore, since this document is created after disposal of the suit and the pleading in the plaint is necessary to be considered by the appellate court for enabling the appellate court to pronounce the Patna High Court FA No.690 of 1978 dt. 02-04-2013 17 judgment according to law, therefore, here, this is the exceptional circumstance which is covered under Order 41 Rule 27 C.P.C. as such, the plaint i.e. filed by the appellant along with the I.A. is also taken into evidence as additional evidence. In the decision referred to above, the Apex Court has held that the application has to be considered at the time of hearing of the appeal. Therefore, this application was heard along with the appeal. It may be mentioned that there is no explanation or counter-affidavit filed by the respondents denying or disputing the correctness or genuineness of the plaint (certified copy filed). 23. Now, therefore, admittedly the defendants- respondents concealed the true facts and have obtained decree in their favour. In such view of the matter, it appears to me that the case of the defendants-respondents is based on falsehood. 24. In the case of S. P. Chengalvaraya Naidu (dead) by L.Rs., v. Jagannath (dead) by L.Rs. and others, AIR 1994 Supreme Court 853 = (1994) 1 Supreme Court Cases 1, the Hon’ble Supreme Court has held that “the courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. A person whose case is based on falsehood has no right to approach the Court. He can be summarily thrown out at any stage of the litigation. A judgment or decree Patna High Court FA No.690 of 1978 dt. 02-04-2013 18 obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment / decree -- by the first court or by the highest court - has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings. A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a cheating intended to get an advantage.” It is settled law that “fraus et jusquam non cohabitant” i.e. fraud and justice never dwell together. 25. In the decision aforesaid i.e. Union of India(supra), the Apex Court also relying upon various decisions of the Apex Court has held that admission made by a party though not conclusive is a decisive factor in a case unless the other party successfully withdraws the same or proves it to be erroneous. Even if the admission is not conclusive, it may operate as an estoppel. Here, there is no explanation filed by the respondents regarding the admission made in the plaint. On the contrary, it appears that this plaint is admitted document. 26. So far the documentary evidences regarding the relationship is concerned, there is no direct document from which it can be found that Jashoda is the daughter of Karoo or she is the daughter of Saudi except the plaint filed by the appellants along with Patna High Court FA No.690 of 1978 dt. 02-04-2013 19 the application under Order 41 Rule 27 C.P.C. From perusal of the judgment of the trial court, it appears that the trial court considered the fact that till the institution of the suit, the plaintiffs never claimed share in the property and never came in possession which indicates that she is not the daughter of Karoo. Had she been the daughter of Karoo, she must have taken any step. In my opinion, so far this observation of the court below, it is nothing but only a presumption. The relationship of plaintiff with Karoo is not dependent on the question of possession. In my opinion, therefore, the presumption derived by the trial court is not acceptable and on this ground that she had not taken any step or that she did not came in possession she is not the daughter of Karoo, is not a sound reason.
Decision
27. In view of the above facts and circumstances of the case and the evidences discussed above, I find that Jashoda Devi was the daughter of Karoo Mahto. The plaintiffs have been able to prove their case. On the other hand, the defendants themselves admitted this fact in the plaint of Title Suit No.168 of 2010. Thus, the finding of the trial court on this question is reversed. 28. It may be mentioned here that the case of the plaintiffs is that Karoo Mahto died in the year 1938 whereas the case of the defendants is that he died in the year 1926. Likewise, so far the death of Bechani Devi is concerned, according to the plaintiffs, she Patna High Court FA No.690 of 1978 dt. 02-04-2013 20 died in the year 1958 whereas according to the defendants, she died in the year 1940. We have discussed the evidences produced by the plaintiffs as well as by the defendants. According to the plaintiffs, some of the witnesses have specifically stated that Bechani Devi died in 1958 and Karoo Mahto died in the year 1938. The plaintiff, Jashoda Devi, P.W.16 has clearly stated that her father died four years after the earthquake. It is not disputed rather it is admitted by all that there was earthquake in the year 1934 which is still remembered by the people. Therefore, according to this P.W.16, her father died in the year 1938. Although, she is not telling the year of death but giving the fact which is remembered by everyone and referring the death with that fact. Likewise, she has clearly stated about the year of death of her mother i.e. 20 years after the death of her father which comes to 1958. 29. From perusal of her other part of evidence, the cross-examination at paragraph 9, it appears that she is consistent with the fact that her father died in the year 1938 and mother died in the year 1958. There is no reason as to why the evidence of this witness be disbelieved. On the contrary, according to the defendant’s witnesses, the year of death of Karoo and Bechani is said to be 1926 and 1940. So far the documentary evidences are concerned, no documents have been produced from which it can be conclusively Patna High Court FA No.690 of 1978 dt. 02-04-2013 21 said that Karoo died in such and such year and Bechani died in such and such year. From perusal of the judgment of the trial court, it appears that the trial court considered the documents and presumed about the year of death. 30. Exhibit 3 has been produced by the plaintiffs which is of the year 1929. This is cess re-evaluation by the landlord. From perusal of this Exhibit 3, name of Karoo Mahto has been recorded. This shows that in the year 1929, Karoo Mahto was alive. The specific case of defendants is that he died in the year 1926. Now, therefore, this Exhibit 3 falsifies the case of the defendants. As stated above, since the defendants are contesting the case of the plaintiffs to displace the natural succession, it is for them to prove the year of death of Karoo and Bechani. From perusal of Exhibit 1 which has been produced by the plaintiffs, it appears that the name of Bechani has also been recorded regarding 1346 Fasli. 1346 Fasli = 1938. If Karoo Mahto died in the year 1926 then there is no question of recording the share of Bechani Kuer in the property of Karoo arises. It appears that on the death of Karoo in the year 1938, her name was recorded. There is no indication that she was only maintenance holder. From perusal of the judgment of the trial court, it appears that a certified copy of death register was filed by the plaintiff which was marked as Exhibit 6/B from which it appears that Bechani Kuer died Patna High Court FA No.690 of 1978 dt. 02-04-2013 22 on 24.03.1938. The Lower Court disbelieved this register on the ground that the plaintiff got the original destroyed prior to filing the suit and the defendants challenged the said register as forged and fabricated. It may be mentioned here that it was certified copy of the public document. Subsequently, it was destroyed in the year 1976. The trial court presumed that the plaintiff got it destroyed to prevent the defendant from getting the copy of the original. In my opinion, so far this presumption is concerned, is not acceptable because the trial court accepted the version of the defendants-respondents without there being any material and the certified copy of public document was marked without objection. Admittedly, the same was destroyed subsequently, therefore, it is for the defendants to prove that in fact, it is forged document. By mere saying the presumption available in favour of the plaintiff cannot be destroyed. The destruction report has been marked Exhibit 8. The witness, P.W.19 has proved the said document. The trial court disbelieved these documents only on the ground that there is no reason as to why some register have been destroyed and some have not been destroyed and that the plaintiff has not examined the person who compared the register. 31. So far the death of Bechani is concerned, the witnesses as stated above have stated according to the pleading of the parties. The plaintiff, P.W.16 clearly stated about the death of Patna High Court FA No.690 of 1978 dt. 02-04-2013 23 Bechani in the year 1958. Exhibit 6/A proved the said fact. The other aspect of the matter is that the defendants pleaded a false case regarding the parentage of Jashoda and thereby committed a fraud on the court and got the decree in their favour. Now, therefore, whether the evidence produced by the said persons with regard to the year of death is reliable? As has been stated above, there is no document to prove the fact that Bechani died in the year 1940 or Karoo died in the year 1926. Only some documents have been produced and the court below has presumed from this document about the year of death. 32. In view of the above facts that the defendants- respondents are playing hide and seek game and even are producing the evidences in support of their case with a view to displace the natural succession, in my opinion, therefore, since they have been found to be playing fraud, their evidence is not reliable at all regarding the year of death of Karoo and Bechani. On this score also, their case can be thrown. However, I have discussed the evidences and found that the witnesses only stated baldly without there being any document. It appears that the trial court swade away with the submission of the learned counsel for the respondents and discarded the oral evidences as well as documentary evidences produced by the plaintiffs and observed that the burden is on the plaintiffs to prove that she is the daughter and that Karoo died in the year 1938 and Bechani Patna High Court FA No.690 of 1978 dt. 02-04-2013 24 died in the year 1958. The trial court has not approached the case in right angle. Since the defendants are trying to displace the natural succession, it is for them to prove the fact disentitling the plaintiff to inherit the property. As discussed above, they have been found to be involved in producing such evidences before the court with a view to displace the natural succession by hook or crook or by any means. 33. In view of above discussion, I find that the plaintiffs have been able to prove that Karoo died in the year 1938 and Bechani died in the year 1958. The defendants have failed to prove that Karoo died in the year 1926 and that Bechani died in the year 1940. Therefore, the findings of the trial court on these questions are reversed accordingly. 34. In view of the above facts and the decision laid down by the Apex Court in the case of Salem Advocate Bar Association vs. Union of India, (2005) 6 Supreme Court Cases 344, the defendants-respondents are liable to pay the exemplary cost. Accordingly, this First Appeal is allowed with cost of Rs.10,000 to be paid by the defendants-respondents. The judgment and decree of the trial court is hereby set aside. The plaintiffs-appellants suit is thus, decreed. Saurabh/- (Mungeshwar Sahoo, J)