Sheoji Singh v. Rajender Rai

Heard Mr. Dharamveer, learned counsel appearing on behalf of the appellants.

2. The plaintiffs are appellants in this appeal against the judgment and decree of the appellate court below affirming the dismissal of the suit filed by the plaintiffs for declaration that the plaintiff no.2 Lal Muni Kuer is the widow of Bairrister Rai and she has gifted the lands mentioned in Schedule-A of the plaint to the plaintiff no.-1 who has acquired valid title and possession on the basis of the said gift.

3. As the factual matrix of the case would unveil the suit property belonged to Bairrister Rai and the plaintiff no.-2 claiming herself to be his widow has executed a gift deed of the said property in favour of plaintiff no.-1 alienating her title and possession in his favour. The defendants, on the other 2 Patna High Court SA No.188 of 2011 (4) dt.13-02-2013 hand, denied the status of the plaintiff no.-2 as widow of Late Bairrister Rai and consequently have also denied the validity of the gift deed in favour of the plaintiff no.-1 executed by the plaintiff no.-2. The defendants have claimed that the defendant no.-4 is the real widow of Late Bairrister Rai.

4. On the basis of the pleadings and evidence of the parties the trial court returned the finding that the plaintiffs failed to establish the status of the plaintiff no.-2 as widow of Late Bairrister Rai and the gift deed executed by her was thus illegal. The suit was therefore dismissed. The appellate court below, on reappreciation of the evidence, has concurred with the finding of the trial court that the plaintiff no.-2 has failed to establish herself to be the widow of Late Bairrister Rai and has not acquired right, title and interest in his property.

5. Learned counsel the appellants has submitted that both the courts below erred in law in not appreciating the evidence in correct perspective and have wrongly non-suited the plaintiffs. It has been urged by the learned counsel that both the courts below have though held that there is no direct evidence to support the case of either the plaintiff no.-2 or the defendant no.-4 as the widow of Late Bairriester Rai, but still they have proceeded to adjudicate this issue against the plaintiffs. It has also been submitted by the learned counsel for the appellants that the judgments of both 3 Patna High Court SA No.188 of 2011 (4) dt.13-02-2013 the courts below are cryptic. The prayer has also been made for calling for the lower court records in order to evaluate the finding after appreciating the evidence.

6. The crucial issue in the suit definitely was the status of the plaintiff no.-2 as widow of Late Bairrister Rai. In absence of any direct documentary evidence on the said issue, both the courts below have mainly relied on the oral evidence led by the parties and examined its probative value with the documentary evidence available on the record. It has been found by the courts below that no one from the family of Bairrister Rai or his near relatives has come to support the status of the plaintiff no.-2 as widow of Bairrister Rai. To the contrary it has been further found that the relatives of late Bairrister Rai have been examined as witnesses on behalf of the defendants and they have supported the status of the defendant no.4 as widow of Bairrister Rai. Much emphasis has been placed on behalf of the appellants on the deposition of PW.-7 in support of the fact that the plaintiff no.-2 is the widow of Bairrister Rai. But this PW.-7 is none-else then the father of the plaintiff no-2and is obviously an interested person. The reliance therefore has not been rightly placed on his testimony. The courts below have relied upon the documentary evidence also including Ext. K and Ext. L which are the certified copies of the order dated 15.02.1995 and compromise petition respectively of Cr. Appeal No. 498 of 1995 before the Hon’ble 4 Patna High Court SA No.188 of 2011 (4) dt.13-02-2013 Supreme Court in which the plaintiffs were the appellants. The compromise petition (Ext.L) bears the L.T.I. of the plaintiff no.1 Sheoji Singh and the plaintiff no.2 Lal Muni Kuer which have been duly certified by the Jail Authority. The said compromise petition also bears the L.T.I. of the defendant no.4 Lal Muna Kuer. On meticulous scrutiny of the oral and documentary evidence, the courts below have come to the conclusion that the plaintiff no.2 is not the widow of Late Bairrister Rai. The submission on behalf of the appellant regarding non- consideration of the evidence in proper perspective therefore has no substance.

7. It is well settled that when the adjudication of an issue hinges mainly upon the appreciation of oral evidence of the parties, the view adopted by the courts below are normally accepted unless there are strong circumstance to take another view. The second appellate court is not a third court on facts and the re-appreciation of evidence at the second appellate stage is conditioned by the circumstance when the findings of the courts below are shown to be perverse in any manner. The submission on behalf of the appellants in the present case centers around re-appreciation of evidence and for that purpose the prayer has also been made to call for the lower courts records. Such prayer cannot be accepted as the appellants have failed to establish perversity in any manner in the finding of the courts below. 5 Patna High Court SA No.188 of 2011 (4) dt.13-02-2013

8. In the result, I do not find any substantial question of law arising for consideration in this appeal, which is accordingly dismissed. (V. Nath, J) P.K./-