Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.528 of 2009 ====================================================== 1.Chandra Lekha Singh, w/o Sri Baban Singh, d/o Vishwanath Singh(Dak Babu) 2. Ghanshyam Singh, s/o Baban Singh, both residents of vill.-Beri Baranth, P.O. Shahpur Baranth, P.S. Patory, Dist.-Samastipur. .... .... Appellant/s Versus 1.Most. Maula , w/o Sita Ram Das, resident of vill.- Mohammadpur, P.S. Mohiuddinagar, Dist-Samastipur. 2. Binda Devi, w/o Musan Das, resident of vill-Beri(Balupar)P.O. Beri, P.S. Patory, Dist-Samastipur. ====================================================== .... .... Respondent/s Appearance :
Legal Reasoning
For the Appellant/s : Mr. R.K.Sinha-2 Mr. Anshay Bahadur Mathur Mr. Shailendra Kr. Jha Mr. Anshay Bahadur Mathur Mr. Shailendra Kr. Jha For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE VIJAYENDRA NATH ORAL ORDER 7 28-02-2013 Heard Mr. Anshay Bahadur Mathur, the learned counsel for the appellants in support of this appeal. 2. The defendant 2nd set in the suit are the appellants in this 2 Patna High Court SA No.528 of 2009 (7) dt.28-02-2013 2 / 6 appeal against the judgment and decree of affirmance by the appellate court below upholding the decree passed in the suit for partition filed by the plaintiff-respondent. The plaintiff has filed the suit for partition of her share in the property with the case that the suit property originally belonged to her father Gariban Das, who purchased the same in the year 1959. Gariban Das died leaving behind his widow Sundari Devi and two daughters Maula Devi and Binda Devi. After the death of Sundari Devi, the plaintiff has claimed to have half share in the suit property. 3. The defendant 2nd set, who are the purchasers of the suit property from Sundari Devi by sale deed dated 28-12-1985 , have contested the claim of the plaintiff to be the daughter of Gariban Das and Sundari Devi and have come out with the case that Gariban Das and Sundari Devi had only one daughter Binda Devi and the plaintiff Maula Devi belongs to the family of Sonelal Das. It is the further case of the defendant 2nd set that Sundari Devi sold the property to Binda Devi and husband of Binda Devi has appeared as a witness on the said sale deed which fact itself reveals the consent of Binda Devi in the said transaction. The defendant 2nd set thus have claimed their title over the suit property and prayed for the dismissal of the suit. 4. Both the courts below have come to the concurrent 3 Patna High Court SA No.528 of 2009 (7) dt.28-02-2013 3 / 6 finding of fact that the plaintiff Maula Devi is one of the two daughters of Gariban Das and another daughter is Binda Devi. The courts below have further held that the sale by Sundari Devi in favour of defendant 2nd set would be valid to the extent of the share of Sundari Devi alone and has held the defendant 2nd set to be entitled to that much only. 5. Mr. Mathur, the learned counsel for the appellants has submitted that both the courts below erred in law in not appreciating the evidence on record, particularly the deposition of the plaintiff herself wherein she could not disclose the name of her near relatives. It has been urged that this fact was sufficient to disbelieve her status as the daughter of Gariban Das and Sundari Devi. It has been urged by the learned counsel that although another daughter Binda Devi has filed her written statement in the suit and accepted the plaintiff to be her sister, but she did not choose to come to depose in the suit and offer herself for cross- examination. It has been contended by the learned counsel that the obvious malafide intention of Binda Devi is there as her half share in the property by accepting the plaintiff as her sister was ensured. It has been canvassed that the courts below should have raised adverse inference from the fact of non-examination of Binda Devi in the suit. The learned counsel has also submitted that after 4 Patna High Court SA No.528 of 2009 (7) dt.28-02-2013 4 / 6 execution of the sale deed Sundari Devi had handed over the original document of title to the purchasers defendant 2nd set who also came in possession of the property. 6. From the perusal of the impugned judgments and after considering the submission of the learned counsel for the appellants, it is pellucid that the plaintiff has claimed partition of her share in the suit property as one of the two daughters of Gariban Das and Sundari Devi. The defendant 2nd set, who are the purchasers of the entire suit property from Sundari Devi, have denied the status of the plaintiff as the daughter of Gariban Das and Sundari Devi. As such, the crucial issue in the suit was the status of the plaintiff as daughter of Gariban Das and Sundari Devi 7. The parties led their oral and documentary evidence in support of their contentions. On scrutiny of the evidence both the courts below have come to the concurrent finding that the plaintiff is one of the two daughters of Gariban Das and Sundari Devi. The submission by the learned counsel is that the deposition of the plaintiff has not been considered properly inasmuch as her case should have been disbelieved because she failed to give the names of close relatives of Gariban Das. Both the courts below have also considered this aspect and thereafter relying upon other evidence including documentary evidence, have reached to the conclusion 5 Patna High Court SA No.528 of 2009 (7) dt.28-02-2013 5 / 6 in favour of the plaintiff. The defendant 2nd set have failed to establish their case that the plaintiff is related to the family of Sonelal Das. To the contrary, the plaintiff has adduced in evidence the voter list(Ext.1) which supports the status of the plaintiff as daughter of Gariban Das. The voter list(Ext.-1) brought in evidence by the defendant 2nd set does not show that the name of the plaintiff is there with Sonelal Das and his family members. The defendant 1st set Binda Devi, in her written statement, has also accepted the plaintiff to be her sister. The witnesses examined on behalf of the defendant 2nd set have also been found to be not competent person to depose on the parentage of the plaintiff as they all belong to other villages. The findings by the courts below are based upon appreciation of evidence and I do not find perversity in any manner in the same. 8. The submission of the learned counsel for the appellants is also that Binda Devi has not turned up to support the case of the plaintiff although she filed her written statement supporting on plaintiff and therefore adverse inference should have been drawn against the plaintiff. There is no force in this submission simply because it is also the case of the defendant 2nd set that Binda Devi was a consenting party to the sale of the suit property by Sundari Devi in their favour and therefore, if adverse inference inference 6 Patna High Court SA No.528 of 2009 (7) dt.28-02-2013 6 / 6 at all is to be drawn , it can be drawn against the defendant 2nd set. Non-examination of a defendant, who has supported the plaintiff, cannot lead to adverse inference against the plaintiff. 9. The issues arising between the parties have been concluded by the concurrent findings of fact and I do not find any substantial question of law arising for consideration in this appeal. 10. This appeal is, accordingly, dismissed. .Roy/- (Vijayendra Nath, J)