Dismissed

Neut Yadav and Ors. v. Bhola Yadav and Ors.

Patna HC18 Feb 2013SA/460/2009

Case brief

AI extract

What is this about?

In a partition suit and second appeal, the High Court held that concurrent findings of lower courts regarding family genealogy and unity of title were not perverse. The appeal was dismissed as the defendants failed to rebut the presumption of legitimacy with cogent evidence.

What did the court decide?

The Second Appeal No.460 of 2009 is dismissed for lack of merit as the subsequent order confirms.

Neut Yadav and Ors. Vs Bhola Yadav and Ors. — Partition | Patna HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Second Appeal No.460 of 2009

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Neut Yadav son of Late Sheojag Ahir 2. Mostt. Laxmina Kuar, wife of Late Jeut Yadav Both are resident of village Narbatpur-Chausa, P.O.-Chousa, P.S. Buxar (M), District- Buxar. .... .... Appellants

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Versus

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Bhola Yadav son of Late Sheojag Ahir (As stated in plaint) 2. Barmeshwar Yadav, 3. Ramesh Yadav 4. Bhanu Pratap Mandal All sons of Bhola Yadav and residents of village-Narbatpur Chousa, P.O. Chousa, P.S.-Buxar (M) district-Buxar.

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Prabhawati Devi (daughter of late Mostt. Gangajali Kuar) wife of Suryanath Singh resident of village Fatepur, P.O. Dildar Nagar, P.S. Dildarnagar, District Gajipur (U.P.)

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.... .... Respondents

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====================================================== Appearance : For the Appellant/s : Mr. Gopal Pandey For the Respondent/s : Mr. Jitendra Prasad Singh Mr. Anil Kumar Roy ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH

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ORAL ORDER

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6 18-02-2013 Heard learned counsel for the appellants and learned counsel appearing on behalf of the respondents.

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Defendants before the Trial Court are the appellants in the present Second Appeal under Section 100 of the Code of Civil Procedure (hereinafter referred to as the „Code‟) which has been placed before me for hearing under Order 41 Rule 11 of the Code. 3. The appellants are aggrieved by the judgment and decree dated 06.08.2009 and 20.08.2009 passed by learned District Judge, Buxar in Title Appeal No. 33 of 2008 whereby he has dismissed the appeal and has affirmed the judgment and decree dated

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Patna High Court SA No.460 of 2009 (6) dt.18-02-2013

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11.06.2008 and 24.06.2008 passed by learned Civil Judge (Senior Division) III, Buxar in T.S. No. 304 of 2003.

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The suit was filed on behalf of respondents claiming ¼^th share in the land described in Schedule-2 of the plaint. From the impugned orders it appears that the plaintiffs‟ case before the Courts below was that one Nanhu Ahir was the common ancestor who died leaving behind his only son late Sheojag Ahir. As per the plaintiff‟s case Gangajali Kunwar was the wife of Sheojag Ahir. Sheojag Ahir died during her life time leaving behind three sons, namely, Bhola Yadav (Plaintiff No. 1), Jeut Yadav and Neut Yadav (Defendant No. 2 / Appellant No.1). Jeut Yadav died leaving behind his wife Laxmina Kunwar (Defendant No. 3 / Appellant No. 2). Bhola Yadav, the plaintiff No. 1 who has been impleaded as respondent No. 1 herein has three sons, namely, Brameshwar Yadav, Ramesh Yadav and Bhanu Pratap Mandal who have been impleaded as respondent Nos. 2, 3 and 4 respectively. Gangajali Kunwar, who according to the plaintiffs was the wife of Sheojag Ahir, was defendant No. 1 and was impleaded as respondent No. 5 in the present Second Appeal. However, her name has been ordered to be expunged as she died on 20.01.2012 during the pendency of the present Second Appeal and name of her daughter Prabhawati Devi has been substituted as respondent No. 5(i) as her other legal heirs are already on record.

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Patna High Court SA No.460 of 2009 (6) dt.18-02-2013

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The plaintniffs‟ claimed that the suit properties belong to the family who were joint and there had been no partition in the family by metes and bounds and in respect of Schedule-2 properties they had got joint ownership and possession. The plaintiffs‟ claimed 1/4^th of the property.

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The defendants contested the suit. A written statement was filed questioning the very foundation of the claim of the plaintiffs that they belonged to the family. The genealogical table itself as relied upon by the plaintiffs was disputed and the defendants contended that Gangajali Kunwar, shown to be the wife of late Sheojag Ahir was in fact not his wife. Sheojag Ahir was married to Muneshwari Devi and he had two sons out of the said marriage, namely, Late Jeut Yadav and Neut Yadav. The defendants specifically pleaded that Gangajali Kunwar as shown to be the wife of late Sheogaj Ahir, was in fact married to Moti Ahir in a different village Nadwan in Buxar District. Moti Ahir according to the defendants died whereafter said Ganga Jali Kunwar married Kanhaiya Yadav of Padiya in the District of Gazipur (U.P.). According to the defendants, the plaintiffs had purchased their own property in the village and neither they nor the defendant No. 1 had any concern with the family of defendants No. 2 and 3.

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It was specific case of the defendants that when Kanahiya

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Patna High Court SA No.460 of 2009 (6) dt.18-02-2013

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Ahir died, Gangajali Kunwar came to her mother‟s place (Maika) in village Sowan Bandh nearby village to the disputed land and when plaintiff No. 1 became able to work, Sheojag Ahir had kept him to work in the village and allowed him to live in a room. After sometime Gangajali Kunwar also came in the house of the defendants and started living and working there. On the basis of the rival pleadings, the Trial Court framed seven issues including issues No. (IV) and (V) which are being quoted hereinbelow and which go to the root of the dispute involved:-

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“(IV) Whether the defendant no. 1 Gangajali Devi is legally married wife of Sheojag Ahir and genealogy given by the plaintiffs is correct?

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“(V) Whether there is unity of title and jointness of possession in between the parties to the suit?”

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Learned Trial Court dealing with issue No. (IV), based on the evidence and material available on record came to the conclusion that the defendants failed to prove that Gangajali Kunwar was wife of Kanhaiya Yadav and that plaintiff No. 1 was son of Kanhaiya Yadav.

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Learned Trial Court further recorded the findings that the defendants could not prove that name of wife of Late Sheojag Ahir was Muneshwari Devi which was specifically claimed by them.

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Patna High Court SA No.460 of 2009 (6) dt.18-02-2013

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Learned Trial court also came to the conclusion that the genealogy submitted on behalf of the defendants could also not be proved by them.

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Learned Trial Court took note of the fact that Lahasia Devi wife of Ramjag Ahir said to be full brother of Sheojag Ahir was not examined who could have been an important witness for the defendants to prove their case that Muneshwari Devi was the wife of Sheojag Ahir meaning thereby Gangajali was not the wife of Sheojag Ahir.

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After detailed discussion on the evidence on record, learned Trial Court came to the specific finding that the name of the husband of Gangajali Kunwar @ Devi was Sheojag Ahir.

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Learned Trial also came to the finding that the genealogy as submitted on behalf of the plaintiffs was correct one. Dealing with question No. 6, learned Trial Court again decided the issue against the defendants holding that there was unity of title and possession as regards the suit land.

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The defendants being aggrieved by the judgment of the Trial Court preferred appeal vide Title Appeal No. 33 of 2008 which was registered in the file of the District Judge, Buxar.

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Learned First Appellate Court framed inter alia two points for determining the disputes between the parties, namely :-

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“(III) Whether the predegree given by plaintiffs is

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Patna High Court SA No.460 of 2009 (6) dt.18-02-2013

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correct or of the contesting defendatns? (S.I.C.)

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(IV) Whether there is unity of title and jointness of

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possession in between the parties to the suit in respect of the suit land? ”

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Learned First Appellate Court, dealing with the first point as abovementioned, based on the documentary and oral evidence came to affirm the finding of learned Trial Court that Bhola Yadav was the son of Sheojag Ahir and Gangajali wife of Sheojag Ahir and mother of Jeut and Neut and accordingly held that the plaintiffs would be entitled for 1/4^th share in the Schedule-2 property.

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Similarly, on the question of unity of title also learned First Appellate Court affirmed the finding that there was unity of title and jointness of possession over the suit property.

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These are the two concurrent findings of fact which are crucial for determination of the disputes and which went in favour of the plaintiffs / respondents is being questioned in the present Second Appeal mainly on the ground that the finding are based on conjecture and surmises and without any sufficient evidence on record and, therefore, the findings of the Courts below though concurrent are perverse and deserves interference in exercise of power under Section 100 of the Code of Civil Procedure.

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Mr. Gopal Pandey, learned counsel appearing on behalf

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Patna High Court SA No.460 of 2009 (6) dt.18-02-2013

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of the appellants has vehemently submitted that the onus was heavy on the plaintiffs to prove that Gangajali Devi was in fact the wife of late Sheojag Ahir which onus plaintiffs amicably failed to discharge. He has further contended, referring to the judgments of the Courts below that the findings are based on mere possibilities and not on concrete evidence. Refereeing to Section 50 of the India Evidence Act, 1872, Mr. Pandey submits that the Court cannot form opinion of relationship of one person to another merely on the basis of possibilities, rather the same must be based on concurrent evidence.

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Mr. J.P. Singh, learned counsel for the respondents on the other hand submits, referring to the judgments of the Courts below that the same cannot be said to be perverse as the same are based on the evidence available on record. He submits that the defendants developed the case that Muneshwari Devi was the wife of Sheojag Ahir and not defendant No. 1, i.e., Gangajali Kunwar, onus was heavy on the defendants to prove that Muneshwari Devi was the wife of Sheojag Ahir which could demolish the plainitiffs‟ case that the Gangajali was not the wife.

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Referring to Section 50 of the India Evidence Act, learned counsel for the respondents has submitted that it is sufficient for the Courts to form opinion as to relationship of one person to another. The Court may take into account the opinion

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Patna High Court SA No.460 of 2009 (6) dt.18-02-2013

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expressed by conduct as to the existence of such relationship. He emphatically submits that in civil case, the fact is to be proved on the preponderance of possibilities and not on the standards of beyond any reasonable doubt.

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After having heard learned counsel for the appellants and learned counsel appearing on behalf of the respondents, I am of the view that in a partition suit the legitimacy of relationship is presumed which can be rebutted by cogent evidence. If defendants had specific case that Muneshwari Devi was the wife of Sheojag Ahir, the onus to prove their case was heavy on the defendants.

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Learned Courts below have concurrently held that the appellants / defendants failed to prove their case that Muneshwari Devi was the wife of Sheojag Ahir. Further it was the case developed by defendants regarding marriage of Gangajali Keur with Moti Ahir and thereafter with Kanhaiya Yadav and further that plaintiff No. 1 Bhola Yadav was born out of the marriage between the Kanhaiya Yadav and Gangajali Keur; such facts had to be proved by the defendants. Learned counsel for the appellants submits that it was difficult for the defendants to prove, keeping in mind the lands which the people had in olden days. The marriage of Muneshwari Devi with late Sheojag Ahir in my opinion, the same standard would have applied when the defendants denied marriage of Gangajali Keur with Sheojag Ahir.

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Patna High Court SA No.460 of 2009 (6) dt.18-02-2013

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It is true that the findings of the Courts below are based on doctrine of preponderance of possibilities while appreciating the evidence on record. I do not find any perversity in the concurrent findings of fact recorded by the Courts below. It is well settled that civil dispute, like criminal cases are decided on the basis of preponderance of possibilities and the findings are based on the principle as to which fact is more probable than the other one on the basis of the evidence and materials on record.

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In view of the above, there being concurrent finding of facts by the Courts below keeping in mind, the limitation of the jurisdiction of this Court under Section 100 of the Code of Civil Procedure, I do not consider that the appeal merits admission and is, accordingly, dismissed.

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(Chakradhari Sharan Singh, J.)

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Saif/-

Neut Yadav and Ors. v. Bhola Yadav and Ors.

Case brief

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Neut Yadav and Ors. v. Bhola Yadav and Ors.

Case brief

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