Bhojpur v. Ram Pravesh Sah son of late Ram Janam Sah resident of village Sarathua
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.148 of 2011 ====================================================== 1. Phuljharo Devi wife of Shri Kameshwar Sah, resident of village Baraki Kharaon P.S. Sahar District-Bhojpur. 2. Ram Sungaro Devi wife of Sheodhar Prasad. 3. Munga Devi wife of Ram Kishun Sah. 4. Sukwaro Devi wife of late Ram Bachan Sah. 5. Madhi Sao son of late Ram Bishun Sah. 6. Mallu Sah son of late Ram Bishun Sah (now major) all are resident of village Koshiyar P.S. Chouri District-Bhojpur. 7. Dulhin Bijanti Devi wife of Jaypal Sah, resident of village Koshiyar PS. Chouri District-Bhojpur. 8. Dina Sah son of late Girwar Sah. 9. Surendra Sah son of late Ram Bachan Sah. 10. Kamla Devi wife of late Rama Dhar Rai @ Ramadhar Sah. 11. Pramod Kumar son of late Ramadhar Rai @ Ramadhar Sah. 12. Binod Kumar Son of late Ramadhar Rai @ Ramadhar Sah. 13. Saroj Kumar Son of late Ramadhar Rai @ Ramadhar Sah. 14. Satyendra Kumar Son of late Ramadhar Rai @ Ramadhar Sah, all are resident of village Nagari, P.S. Charpokhari District-Bhojpur.
Legal Reasoning
15. Sharda Devi wife of shri Ram Kumar Sah resident of village Nagri. P.S. Charpokhari District-Bhojpur. Versus Ram Pravesh Sah son of late Ram Janam Sah resident of village Sarathua .... .... Appellant/s P.S. Udwant Nagar, District-Bhojpur. .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Ajit Kumar Singh For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE VIJAYENDRA NATH ORAL ORDER 5 23-04-2013 Heard Mr. Ajit Kumar Singh, the learned counsel for the appellants. Patna High Court SA No.148 of 2011 (5) dt.23-04-2013 2 The substituted heir and transferees of the original plaintiff Raktu Sah are the appellants in this appeal against the judgment and decree of affirmance dismissing the suit of the plaintiffs. The original plaintiff Raktu Sah filed the suit for declaration that the two gift deeds dated 01.02.1990 and 08.03.1990 executed by him in favour of the defendant are forged, fabricated, vitiated by fraud and ineffective documents and further prayer has been made for cancellation of those sale deeds. The facts of the case would unveil that the plaintiff Raktu Sah has stated that he was addicted to Ganja-Bhang and the defendant on false pretext of execution of a power of attorney got executed the two gift deeds from him fraudulently. The defendant, on the other hand, has claimed himself to be the son of Raktu Sah and has alleged that his father had developed bad habits including whoring and therefore the gift deeds have been got executed in order to safeguard the properties from being squandered by him. The trial court, on consideration of the pleadings and evidence of the parties, returned the finding that the defendant was the son of the plaintiff and the gift deeds in question had been validly executed in favour of the defendant by the plaintiff. In appeal, the appellate court below, on reappraisal of evidence, has Patna High Court SA No.148 of 2011 (5) dt.23-04-2013 3 concurred with the findings of the trial court. Mr. Singh, the learned counsel for the appellants has submitted that both the courts below have wrongly held that the defendant is the son of the original plaintiff Raktu Sah by relying upon the voter list which cannot be sufficient for coming to the said conclusion. It has been urged that an entry in the voter list cannot be conclusive evidence with regard to the facts mentioned therein and as such the reliance by the courts below on the said evidence was clearly misconceived. It has been further submitted by the learned counsel that both the courts below have misappreciated the evidence on record and have come to the wrong conclusions. After perusal of the judgments of both the courts below and considering the submissions of the learned counsel for the appellants, it is manifest that the original plaintiff Raktu Sah had filed the suit assailing the two gift deeds in question executed by him in favour of the defendant. However, the original plaintiff Raktu Sah was examined in the suit and in his testimony before the court, he has accepted to have executed the two gift deeds in question in favour of the defendant. From the deposition of the original plaintiff, it further also appears that there was nothing to support the allegation of fraud as pleaded in the plaint. The Patna High Court SA No.148 of 2011 (5) dt.23-04-2013 4 defendant, in his written statement, has made averment regarding earlier title suit no. 09 of 1988 filed by him against the original plaintiff before the court of Sub Judge-I and has further averred that the said suit ended in compromise wherein the original plaintiff accepted the defendant to be his son and the mother of the defendant to be his wife. No evidence has been brought on record on behalf of the plaintiff to contradict the said statement regarding the said title suit and the compromise decree therein. In this view of the matter, the submission on behalf of the appellants regarding the validity of the entries in a voter list to establish the parentage of the plaintiff loses the relevance. It is well settled that the plaintiff has to stand on his own legs and he cannot succeed on the weakness of the defendant. In the present case, there is no specific pleading as well as evidence brought on record by the plaintiff to support the allegations of fraud vitiating the gift deeds. The original plaintiff Raktu Sah died during the pendency of the suit and had been substituted by his heir and transferees who are the present appellants. However, the substituted heirs of the original plaintiff cannot be allowed to take a stand inconsistent with the case set up by the original plaintiff. In view of the categorical admission by the original plaintiff regarding the execution of the gift deeds in question in favour of the defendant, I Patna High Court SA No.148 of 2011 (5) dt.23-04-2013 5 find no illegality in the judgments of both the courts below in non- suiting the plaintiff. The findings of fact have been recorded by both the courts below on the basis of scrutiny of evidence and no perversity in any manner in the same could be established on behalf of the appellants. In the ultimate eventuate, I do not find any substantial question of law arising for consideration in this appeal, which is, accordingly, dismissed. Devendra/- (Vijayendra Nath, J)