HONOURABLE MR. JUSTICE v. NATH ORAL ORDER
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.460 of 2010 ====================================================== 1. Deep Narayan Sah Husband Of Noonowati Devi. 2. Shambhu Sah. 3. Laddu Sah. 4. Manoj Sah . 5. Subhash Sah all son of late Noonowati Devi. 6. Ranju Devi 7. Manju Devi 8. Sanju Devi 9. Parvati Kumari all D/O Late Noonowati Devi R/O Village- Sabalpur, Post Office- Marar, Police Station- Morkahi, District- Khagaria Versus 1. Nirdhan Sah S/O Late Anoop Sahu R/O Village- Sabalpur, P.O.- Madar, .... .... Appellant/s P.S.- Morkahi, Anchal And District- Khagaria
Legal Reasoning
.... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Rajiv Shankar Dubey For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE V. NATH ORAL ORDER 14 01-03-2013 Heard the learned counsel for the appellants in support of this appeal. The learned counsel for the respondent is also present. The plaintiff (now deceased, through L.R.) is the appellant in this second appeal against the judgment and decree of affirmance by the appellate court below dismissing the suit. The plaintiff filed the suit for declaration her title and Patna High Court SA No.460 of 2010 (14) dt.01-03-2013 2 recovery of possession over the suit land after declaring the gift deed dated 11.09.1972 executed by Aghori Sah in favour of the defendant as forged and fabricated document. There is no dispute that the suit land originally belonged to Aghori Sah. The plaintiff has claimed herself to be the daughter and only heir of Aghori Sah and has come out with the case that the defendant obtained the gift deed in question with regard to the suit property from Aghori Sah fraudulently by taking benefit of his habit of intoxication. It has also been alleged by the plaintiff that initially the defendant came in possession over the part of the suit property with the permission of the plaintiff but later on he has refused to vacate the same and therefore the prayer for recovery of possession has also been made. The defendant has contested the claim of the plaintiff and has asserted that the plaintiff is not the daughter of Aghori Sah who died unmarried and issueless. It has been further claimed that Aghori Sah, out of his independent freewill, had executed the gift deed for the suit land on 11.09.1972 in favour of the defendant who came in possession thereupon and has been dealing with the gifted property. Both the courts below, after scanning the pleadings and evidence of the parties, have concurrently found that the plaintiff Patna High Court SA No.460 of 2010 (14) dt.01-03-2013 3 is not the daughter of Aghori Sah as claimed by her. It has been further found that the plaintiff has also failed to establish that the gift deed in question has been obtained by the defendant through fraudulent and deceitful means. Both the courts have also found that the defendant and the purchasers from the defendant to be in possession over the suit land. The suit and thereafter the appeal has, thus been dismissed. The learned senior counsel for the appellants, at the out set, has submitted that the appellate court below has committed error in directing the plaintiff to obtain a declaration with regard to her status as daughter of Aghori Sah from a competent civil court. It has been further urged that no evidence has been led on behalf of the defendant, in conformity with Section 50 and 60 of the Evidence Act to establish that the plaintiff is not the daughter of Aghori Sah but both the courts below have ignored this aspect and wrongly dismissed the suit. Criticizing the impugned judgments, it has further been argued that both the courts below have not considered the material evidence of the plaintiff and have also misread and misconstrued the documents produced on behalf of the plaintiff. It has been emphasized that both the courts below should have framed specific issue with regard to the genealogical table and thereafter should have recorded the findings. It has thus Patna High Court SA No.460 of 2010 (14) dt.01-03-2013 4 been submitted that substantial questions of law arise for consideration in this appeal. From the perusal of the impugned judgments and after consideration of the submissions on behalf of the appellants, it is pellucid that the plaintiff, claiming herself to be the daughter and only heir of Aghori Sah, has assailed the gift deed executed by him in favour of the defendant. In view of the denial of her status as daughter of Aghori Sah, the burden of proof was clearly on the plaintiff to establish the said fact. By way of documentary evidence the plaintiff has adduced a transfer certificate (Ext.3) granted by Primary Girls School, Sabalpur and the attendance registers (Ext. 2 and 2/A). Both these documentary evidence have been scrutinized by the courts below and have been found not worth reliance. The pages of different years in the attendance registers (Ext. 2 and 2/A) appear to have been assembled together without any system making the same unfit for acceptance as attendance register for any particular year. The transfer certificate (Ext.3) has also been found to be obtained in the year 1986 and no reason has been assigned by the plaintiff for obtaining the transfer certificate in the year 1986 when she left the school in the year 1954 itself. The plaintiff did not produce the admission register of the school to establish her parentage. It also transpires from the Patna High Court SA No.460 of 2010 (14) dt.01-03-2013 5 perusal of the judgments of both the courts below that the oral evidence of the plaintiff has been considered in detail and after meticulous examination of the same both the courts have declined to rely on the same for establishing the parentage of the plaintiff. During the course of the argument also, it could not be pointed out on behalf of the appellants as to which particular material evidence of the plaintiff has been ignored by the courts below. From the memo of appeal also it does not appear that any specific evidence has been mentioned which has not been considered by the courts below. The sale deeds, executed by the defendant and brought in evidence as Ext. C, Ext. C/2 and Ext. C/3, show that the defendant has sold part of the property subject matter of the gift deed in question and the purchasers are in possession of their purchased portions of land. One such purchaser from the defendant has been examined as P.W.-10 and he has claimed to be in possession over the purchased property. Both the courts below have rightly held that the purchasers, in possession of the suit property, are necessary parties to the suit and in absence of them, no relief for recovery of possession can be granted to the plaintiff. The judgment of the appellate court below appears to be a well reasoned judgment and the findings of fact have been recorded Patna High Court SA No.460 of 2010 (14) dt.01-03-2013 6 after the appreciation of the evidence of the parties. No perversity in the same could be established on behalf of the appellants during the course of the argument. The issues arising between the parties are now concluded by concurrent findings of fact. I do not find any substantial question of law arising for consideration in this appeal, which is accordingly, dismissed. Devendra/- (V. Nath, J)