Sohagwa Devi v. Sri Yadav & Ors

The plaintiff appellant appellant has filed this second appeal against the judgment and decree dated 20.5.2011 passed by the learned Additional District Judge, 2nd Jamui in Title Appeal No. 24 of 2008 whereby the learned lower appellate court dismissed the appeal and thereby confirmed the judgment and decree of the trial court dated 10.9.2008 passed by Subordinate Judge-1st, Jamui in Title Suit No. 16 of 2005. The plaintiff appellant appellant had filed the suit for partition of her 1/3rd share out of the suit land. The claim of the plaintiff is that Panchu had two sons namely, Mangar and Natho. There was partition between the two brothers and each brother was allotted 2 acres 11.5 decimal. The partition has been sought Patna High Court SA No.470 of 2011 (5) dt.27-06-2013 2 for in the land of Natho Mahton. Natho Mahton had three sons Shital, Prabhu and Haro. Shital died in the year 1975 leaving behind one son and plaintiff and one grand son and grand daughter. All of them died except the plaintiff. The parties are joint, therefore, the plaintiff claimed 1/3rd share. The defendant respondent filed contesting written statement alleging that the plaintiff is not the daughter of Shital Yadav rather she is widow. The main defence of the defendant is that Shital Yadav died in the year 1954 prior to coming into force of Hindu Succession Act, 1956, therefore, the plaintiff has no locus standi to file the suit because in the year 1954 the daughter was not an heir. The trial court considering the materials i.e. the oral evidences on the question of year of death of Shital Yadav recorded finding that Shital Yadav died prior to coming into force of the Hindu Succession Act, 1956 i.e. in the year 1954. All other issues have been decided in favour of the plaintiff i.e. the plaintiff is the daughter of Shital Yadav and there was no partition. On the basis of the finding that Shital Yadav died in the year 1954 the trial court dismissed the plaintiff’s suit holding that she has no right, title and possession over the suit property. On appeal, the lower appellate court uphold the Patna High Court SA No.470 of 2011 (5) dt.27-06-2013 3 judgment and decree of the trial court recording the same finding that Shital Yadav died in the year 1954. The learned counsel Mr. Ram Bali Jha, appearing on behalf of the appellant submitted that while recoding the finding that Shital yadav died in the year 1954 both the courts below have not properly appreciated oral evidences produced by the plaintiff. According to the learned counsel all the witnesses examined on behalf of the plaintiff are rustic illiterate villagers and it was not expected from them to give exact date and month of death of Shital Yadav but all of them have stated about the year of death of Shital Yadav but by wrong appreciation of those evidences the courts below have recorded the finding that Shital Yadav died in the year 1954 which is not correct. Secondly, the learned counsel submitted that both the courts below have wrongly found that the plaintiff is not in possession over the suit property jointly with the defendants. According to the learned counsel the possession of the defendant will be for the benefit of the plaintiff also because the plaintiff is a married lady and was residing in her Sasural and it is not expected that she would have actual physical possession over the suit property. Moreover, there is no pleading of the defendant that she was ousted or that the defendants have acquired title by adverse possession. The courts below without examining these Patna High Court SA No.470 of 2011 (5) dt.27-06-2013 4 aspects of the matter have dismissed the plaintiff’s suit, therefore, the judgment of both the courts below are vitiated. From perusal of the case of the parties and the judgments of both the courts below it is clear that the main controversy between the plaintiff and defendants is the year of death of Shital Yadav. It is admitted by the learned counsel for the appellant that it is settled law that if Shital Yadav died prior to coming into force Hindu of Succession Act, 1956 the daughter will have no share in the property. Both the parties have adduced only oral evidences in support of their respective cases. According to the plaintiff Shital Yadav died in the year 1975 whereas according to the defendant Shital Yadav died in the year 1954. It is admitted fact and it is apparent from the judgments of both the courts below that except the oral evidences no documentary evidences have been produced by either party regarding the year of death of Shital Yadav. In the case of Sarju Pershad Ramdeo Sahu vs. Jwaleshwari Pratap Narain Singh and others AIR 1951 SC 120 and in the case of Madhusudan Das vs. Smt. Narayani Bai