Punia Devi v. Gulecharan Yadav

appellants and affirmed the judgment and decree dated 29.5.2002 and 7.6.2002 respectively passed by the learned First Subordinate Judge, Hilsa in Title Suit No. 72 of 1996.

3. The plaintiff/appellant Punia Devi had brought the suit for partition of the suit property described in schedule of the plaint. 2 Patna High Court SA No.196 of 2010 (4) dt.08-04-2013

4. As per the plaintiffs’ case, one Sohrai Gope had two daughters Mahajani Devi Nanhki Kuer. Mahajani was married to Prasad Gope, whereas Nanhki was the wife of Ganauri Gope. Mahajani had two sons, namely, Gulcharan Gope and Shree Gope, whereas Nanhki had one daughter only namely, Punia Devi the plaintiff/appellant. The plaintiff claimed that she and defendants were members of joint Hindu Mitakshara family and were living in jointness in mess and property. It was pleaded that the immovable property of Mahajani wife of Prasad Gope and Nanhki Kuer wife of Ganauri were there in the same khatiyan. The specific case of the plaintiff before the trial Court and the first appellate Court was that appellant no.1 Punia Devi was the daughter of Nanhki Kuer and Ganauri Gope.

5. The plaintiff claimed that the joint family property was being managed by the defendants as karta and head of the family. Because of certain differences which arose between the parties, the plaintiffs sought for partition which was refused by defendants giving rise to cause of action for filing the suit.

6. The defendants contested the suit by filing written statement. The defendants in their written statement while admitting the fact that Sohrai Gope had two daughters, namely, Mahajani and Nanhki, disputed that the Punia was the daughter of 3 Patna High Court SA No.196 of 2010 (4) dt.08-04-2013 Nanhki. It was the specific case of the defendant that the plaintiff Punia Devi was never born of the marriage between Nanhki and Ganuri. On the other hand, the defendants claimed that Nanhki Kuer had no issue and he died issueless. The defendants also pleaded that after death of Nanhki Kuer Ganuri Gope married Badamo Devi and Punia was the daughter of said Badamo and not of Nanhki.

7. On the basis of the rival pleadings, the learned trial Court framed altogether eight issues including the following two:- “ (5) Whether the plaintiff is daughter of Nanhaki Devi or Badamo Devi? (6) Is the plaintiff decendant of joint family and the suit property if of nanihal property?”

8. These, two issues were taken together by learned trial Court and on the basis of the evidence available on record and more particularly statement of the plaintiff/appellant Punia Devi ( P.W.4) herself in paragraph 5 of her cross-examination, to the effect that Badamo Devi was the name of her mother, came to the finding that the plaintiff was the daughter of Badamo Devi and Badamo was the daughter of Etwari Gope and that Badamo was not the own sister of Mahajani Kuer. On the basis of this finding the learned trial Court decided issue nos. (v) and (vi ) against the plaintiff. Learned trial Court, in view of the finding that the 4 Patna High Court SA No.196 of 2010 (4) dt.08-04-2013 plaintiff had not been able to establish that she was daughter of Nanhaki dismissed the suit. The first appellate Court after considering the grounds taken on behalf of the appellants as well as other material on record formulated following three points for consideration in appeal:- “1. Whether Punia Devi is the daughter of Nanhaki Kuer or Badamo Devi? 2. Is their any unity of title and possession between the plaintiff/appellant and defendant/respondent? 3. Whether the conclusion of the trial Court is correct?”

9. From the judgment of the first appellate Court, it will appear that after taking into account the evidence of the plaintiff’s witnesses and defendants’ witnesses and analyzing the same in detail concurred with the finding of fact arrived at by the learned trial Court and held in specific terms that the plaintiff failed to prove that Punia Devi is the daughter of Nanhaki Kuer. Learned first appellate Court also took into account the fact that on the basis of the evidence on record that Nanhaki Kuer died in the year 1940 and Punia Devi, while deposing in the year 2000 stated her age to be fifty years. In such circumstance, learned first appellate Court came to the conclusion that it was not possible to hold that Nanhaki Kuer had a daughter, namely Punia because Nanhaki had died in the year 1940. 5 Patna High Court SA No.196 of 2010 (4) dt.08-04-2013

10. Learned counsel for the appellants has very vehemently submitted that except one line statement before the trial Court by Punia Devi to the effect that she was the daughter of Badamo, there is absolutely no evidence on record to suggest that the Punia is the daughter of Badamo and Nanhaki.

11. Learned counsel for the appellants referring to section 50 of the Indian Evidence Act has submitted that conduct of the parties has to be taken into account in respect of her proof of relationship between two persons. He has placed reliance on a judgment of the Supreme Court reported in 2010 (2) PLJR 4(SC) ( M.Yogendra Vs. Leelamma). In my opinion, that judgment is not applicable in the present case inasmuch as the Supreme Court in case of M.Yogendra ( supra) was considering the evidence to prove marriage and came to hold that though there was no documentary evidence to prove marriage, it could be inferred on the basis of the conduct of the parties. In the present case, the plaintiff herself in course of her cross-examination is said to have stated that she was the daughter of Badamo and not Nanhaki as asserted in her plaint. This is to be noted that it was the specific case of the defendants in their written statement that Punia was the daughter of Badamo and not of Nanhaki and Nanhaki according to them had died issueless. 6 Patna High Court SA No.196 of 2010 (4) dt.08-04-2013

12. Section 100 of the Code of Civil Procedure envisages that a Second Appeal would lie to the High Court from a decree passed in appeal by any court sub-ordinate to the High Court if the High Court is satisfied that the case involves a substantial question of law. In order to re-assert the mandatory requirement of involvement of substantial question of law for a second appeal to be maintained under Section 100 of the Code, Section 101 of the Code provides that no second appeal shall lie “except on the ground mentioned in Section 100 of the Code”. Such being the legislative mandate, the superior courts have on several occasions laid down law as to what would constitute and what would not, a “substantial question of law” within the meaning of Section 100 of the Code while scrutinizing scope of the Section. By now, it is settled position of law that the High Court cannot interfere with the concurrent finding of fact unless the same is found to be perverse being based on no evidence or contrary to material available on record or that on the evidence on record no reasonable person could have come to that conclusion. Reference may be made in this regard to the Supreme Court judgments in the cases of Vidyadhar Manik Rao, (1999) 3 SCC 573; Sugani (mst.) v. Rameshwar Das and another, (2006) 11 SCC 87; Gurudev Kaur v. Kaki, (2007) 1 SCC 546; Prakash Kumar v. 7 Patna High Court SA No.196 of 2010 (4) dt.08-04-2013 State of Gujarat (2004) 5 SCC 140; Thingarajan and ors. V. Venugopalaswamy B. Koil and others (2004) 5 SCC 762 and Narayanan Rajendran and another v. Lakshmi Sarojini and others.

13. In view of the above and there being concurrent finding of fact by the Courts below to the effect that Punia Devi the appellant was the daughter of Badamo and not of Nanhaki, I do not find any reason to admit this appeal particularly as in my opinion this appeal does not involve any substantial question of law.

14. The appeal is, accordingly, dismissed. Arun Kumar/- (Chakradhari Sharan Singh, J)