FIRST APPEAL No.342 OF 1978 Against the judgment & decree dated 03.03.1978 passed by Sri Mudrika Prasad, VIth Additional Subordinate Judge, Siwan in Title Suit No. 52 of 1973/04 of 1978 PANMATI DEVI & ORS.----------------------------------------------DEFENDANTS/APPELLANTS VERSUS SUDARSHAN SINGH & ORS--------------------------------------PLAINTIFFS/RESPONDENTS For the Appellants: Mr. Birendra Mohan Singh Mr. Jay Shankar Pathak Mr. Ganesh Thakur Advocates For the respondents: Mr. Shashi Shekhar Dwibedi, Sr. Advocate Mr. Ranjan Kumar Dubey Mrs. Sangeeta Sharma Mr. Rakesh Chandra Advocates P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO Mungeshwar Sahoo, J. J U D G M E N T This First Appeal was filed by Jagdish Singh , the defendant against the judgment & decree dated 03.03.1978 passed by Sri Mudrika Prasad, VIth Additional Subordinate Judge, Siwan in Title Suit No. 52 of 1973/04 of 1978. The sole appellant died during pendency of this appeal and his legal representatives have been substituted. 2. The plaintiff/respondent No. 1 Sudarshan Siungh filed the aforesaid Title Suit claiming relief for redemption of his share of Rs 1348/- & 2 ½ Anna in three-Jarpeshagi deeds executed by the defendant No. 7 and others in favour 2 of the defendant No. 1 (appellant) with respect to 10 Kathas & 15 Dhurs in R.S. plot No. 2990 of village, Balahu. The plaintiff- respondents also prayed for partition of his 14/27 share in the disputed land described in detail at the foot of the plaint. 3. The plaintiff-respondent claim the reliefs on the facts inter alia that Bisheshwar Sah had three sons, namely, Mathura Gor, Gokula Gor and Shiv Gor. Mathura Gor died in the year, 1962 leaving behind the defendant No. 8 Mossomat Dhaneshwari as his only daughter. She being the daughter came in joint possession regarding 1/3rd share of her father, Mathura Gor alongwith defendant No. 2 to 7. The sons & grandsons of Gokula Gor are defendant Nos. 2 to 6. The son of Shiv Gor is defendant No. 7. 4. According to the plaintiff/respondent, the further case is that Mathura Gor & Ramayan Gor (defendant No 3) Tufani Gor (defendant No. 7) executed two Peshagi deeds on 02.07.1962 for Rs 2600/- in favour of defendant No. 1 & gave possession of the Jar Peshagi lands. The two Jar Peshagi deeds have been marked as Ext-C/2 & C/3. The further case is that the defendant No. 3 & the daughter, Dhaneshwari , defendant No. 8 & Sukhlal Gor, defendant No. 5, son of Gokhula Gor sold their entire share in the disputed land to the plaintiff on 25.02.1970, 21.08.1971 & 14.7.1972 through registered sale deeds. It is also the case is that defendant No. 4, Sattam Gor , son of Sukhnandan Gor, defendant No. 6 3 Ramdeo Gor S/o Gokhula Gor & defendant No. 7 Tufani S/o Shiv Gor sold their share to the defendant No. 1 after the sale in favour of the plaintiff. The share of the plaintiff is 14/27, the share of defendant No. 1 is 13/27 and the share of defendant No. 1/27. They are coming in joint passion. 5. The further case of the plaintiff is that he filed a petition in the court below during pendency of the suit for amendment of the share which was allowed on 28.6.1977. According to the plaintiff, he tendered his Jarpeshagi money with a request to redeem his share but the defendant did not agree. Hence, the suit. 6. On being noticed, the defendant-appellant appeared and filed a contesting written statement raising various legal pleas. The main defence is that Mossomat Dhaneshwari , respondent No. 8 is not the daughter of Mathura Gor & also denied that she came in joint possession of 1/3rd share alongwith defendant No. 2 to 7. According to him, Mathura Gor died issueless and the defendant No. 2 to 7 came in possession of the land. The defendant admitted the execution of Jarpeshagi deed and stated that he is Jarpeshagidar of entire R.S. plot No. 2990. 7. The further case of the defendant is that the defendant No. 2 to 7 after death of Mathura partitioned the properties. In that partition, plot no. 2990 & 1 Katha 15.5 Dhurs in R.S. plot No. 2999 fell to the share of the defendant 4 Nos. 4, 6 & 7 who later on, sold those lands to the defendant No. 1 through 5 registered sale deeds. The said 5 registered sale deeds have been marked Ext-A to A/4. The amount of 2600/- of Jarpeshagi deeds was set off and they received the consideration money of Rs 7400/-. Since then the defendant/appellant is continuing in possession and paying rent to the state of Bihar. He also denied the plaintiff share to the extent of 14/27. 8. On these pleadings, the learned court below framed as many as 9 issues and after trial came to the conclusion that defendant No. 8, Dhaneshwari is the daughter of Mathura Gor and then decreed the plaintiff’s suit. 9. The learned counsel for the appellant submitted that the learned court below has wrongly found that the defendant No. 8 Dhaneshwari is the daughter of Mathura Gor because none of the witnesses who deposed in favour of the plaintiff supported the case of the plaintiff and the evidences of these witnesses do not come within the purview of section 50 & 60 of the Evidence Act. Therefore, their evidence was not reliable at all. The learned counsel further submitted that there were overwhelming evidence adduced on behalf of the defendants to the effect that Dhaneshwari was not the daughter of Mathura Gor, but the learned court below applying double standard in assessment of the evidences discarded the evidences of the defendants’ witnesses. The learned 5 counsel in support of his contentions placed the evidences of both the parties in extenso. 10. The learned counsel further submitted that learned court below has wrongly granted the relief of mesne profit from the date of filing of the suit. According to the learned counsel, the learned court below should not have allowed the same in view of the fact that the amount was deposited much after filing of the suit and the settled principles of law is that mesne profit is to be allowed from the date of deposit of money and not from the date of institution of suit. On these grounds, the learned counsel submitted that the impugned judgment and decree are liable to be set aside. 11. On the otherhand, the learned senior counsel, Mr. S.S. Dwibedi submitted that in any case, the plaintiff’s suit is to be allowed because the plaintiff has produced the share of some of the defendants. The only difference between the parties is that what should be the share. If it is held that Dhaneshwari is the daughter of Mathura Gor, then the plaintiffs’ share will be increased and if it is held that the defendant No. 8 is not the daughter of Mathura Gor, then the share of the plaintiff will be decreased. In both position, the plaintiffs’ suit is liable to be decreed. After considering the evidences, the learned court below came to the conclusion that Mossomat Dhaneshwari is the daughter of Mathura Gor and therefore, the only question to be considered in this 6 appeal is as to whether she is the daughter of Mathura or not because the plaintiffs are purchasers from some of the defendants whose title and interest is not disputed by the appellant and the appellant is also a purchaser from some of the defendants whose title and interest are not disputed by the plaintiff-respondent. The only dispute is regarding parentage of Dhaneshwari and therefore, this finding will determine the share. The learned counsel on this ground submitted that after considering the oral evidences, the learned court below came to a finding of fact that the defendant No. 8 Dhaneshwari Devi is the daughter of Mathura Gor and therefore, this appellate court should not lightly interfere with the finding of fact recorded by the court below on the basis of oral evidences. The learned counsel further submitted that the evidences adduced by the plaintiff are the co-villagers, the Purohit and even the defendant No. 8 herself for proving that Dhaneshwari is the daughter of Mathura Gor. The learned counsel further submitted that the defendants only denied that Dhaneshwari is not the daughter of Mathura but at the same time, there is no pleading by the defendants regarding the parentage and residence of Dhaneshwari. According to the learned counsel, mere denial is not denial. A living person is coming to the court and saying that she is the daughter of Mathura but the defendant except the denial, nothing has been brought on record to show who is she if not the daughter of Mathura. On 7 these grounds, the learned counsel submitted that there is no illegality in the impugned judgment and decree. And, therefore, the appeal is liable to be dismissed. 12. In view of the above submissions of the parties, the points arise for consideration in this appeal are as follows: ( I ) Whether Mossomat Dhaneshwari the defendant No. 8 is the daughter of Mathura Gor? ( ii ) Wjhether the plaintiff is entitled to mesne profits from the date of institution of the suit? F I N D I N G S 13. Point No.1: This question is the most important question to be decided in this appeal. The finding on this point will vary the share of the parties. Except this question, there is no dispute regarding purchase of the plaintiff and the defendant from the rightful owners from respective shares. The parties also admitted the execution of the two Jarpeshagi deeds which are Ext-C/2 & C/3. 14. To prove the fact that Dhaneshwari is daughter of Mathura, the plaintiff has adduced evidences. P.W. 1 is formal in nature. P.W. 2 Ram Ekwal Singh of village-Balahu is a co-villager and is next door neighbour of Mathura Gor. He has stated that Mathura has a daughter, Dhaneshwari who was calling Mathura as Babujee. The learned counsel for the appellant submitted that this witness is incompetent because in Paragraph 4 & 6 of his cross-examination, he has stated 8 that he does not know when Dhaneshwari was born and that he had heard Dhaneshwari saying Babujee 40 years ago. In my opinion, the submission of the learned counsel has got no force. The witness being the next door neighbour and co- villager has got special means of knowledge on the subject of relationship and therefore, the opinion expressed by conduct of this witness is relevant under section 50 of the Indian Evidence Act. If the evidence fulfilled the condition that he is either a member of the family or is a co-villager, a neighbour or otherwise has got special means of knowledge on the subject of relationship, then what is relevant is his opinion expressed by conduct which is admissible u/s 50 of the Evidence Act. The opinion means something more than mere gossip or hearsay, it means as belief or a conviction resulting from what one thinks on a particular question. In my opinion, therefore, the evidence of this witness is admissible u/S 50 of the Evidence Act. Learned court below has therefore rightly relied upon this witness. 15. The learned counsel for the appellant submitted that learned court below has not considered the statement made in Paragraph-6 of this witness wherein he has stated that when he heard Dhaneshwar saying Babujee, no other person was present. This argument has got no legs to stand u/S 50 of Evidence Act. It is not the requirement of law that his evidence will be admitted only when the conduct expressed 9 by the witness should be supported by the other witness who must be present there. 16. P.W. 3 Babulal Upadhyay has stated that Mathura was also Yajman who died 10-11 years ago. Mathura has a daughter, Dhaneshwari and he had heard her saying Babujee. 17. The learned counsel for the appellant placing paragraph-3 of his cross-examination submitted that this witness is unable to say who other relations were present at the time of Pind Dan and also that this witness is unable to say in which month Shradh was performed. 18. The submission of the learned counsel is not acceptable. It is well settled principles of law that the trial court who has the opportunity to see the manner and demeanour of a witness in the witness box is in a better position to appreciate the evidence of a witness. Merely because this court is exercising appellate jurisdiction, the evidence cannot be re-appreciated in other way even if it is capable of more than one interpretation. In the present case, we have to see as to whether the evidence of the witness come within the purview of Section 50 of the Evidence Act or not. In a decision reported in AIR 1983 SC 114, the Hon’ble Supreme Court has held that the appellate court should be slow in interfering with the finding of fact recorded by the trial court after appreciation of oral evidence unless it is shows that 10 the trial court while recorded such finding of fact misread and/or overlooked the vital part of the evidence and had the trial court not misread and/or considered that vital part of the evidence the finding would have been otherwise. In the present case, it cannot be said that the learned trial court has misread the evidence or that the trial court has not considered any such vital part of the evidence of the witness. The learned counsel placed the whole evidence in the cross-examination. The statement made in the examination-in-chief is not denied. 19. P.W. 4 Gopaljee is also a co-villager who has also stated that Dhaneshwari was born in his presence and he had heard many times Dhaneshwari saying Mathura as Babujee. The learned counsel submitted that this witness has admitted in the cross-examination that he has got enmity with the appellant. On the ground of enmity, in my opinion, the reliable evidence in a civil case cannot be discarded. This witness is the co-villager and the appellant has not disputed this fact that he is not a co-villager. Therefore, his evidence is within the four corner of Section 50 of the Evidence Act. The learned court below has not relied upon the evidence of P.W. 5 and therefore, it is not necessary to discuss evidence of P.W.5. 20. P.W. 6 Shri Chandrika Sintgh is a co-villager. He has stated that Mathura & his daughter, Dhaneshwari were working in his house as labourers. Shradh of Mathura 11 was performed by Dhaneshwari. She had taken Rs 50/- loan for Shradh. The learned counsel submitted that no proof has been filed by the witness to show giving of loan and that this witness has not participated in Shradh. This witness is also unable to say the daughters and sons of Tufani and Ramayan. In my opinion, on these grounds the evidence of this witness regarding relationship cannot be disbelieved. The appellant is not disputing that he is a co-villager. I, therefore, find that the evidence of this witness is also within purview of section 50 of the Evidence Act. 21. P.W. 11 Sukhlal is the most important witness in this case. He is defendant No. 4 and is a family member and has fully supported the case of the plaintiff that Mathura has a daughter, Dhaneshwari. It may be mentioned that the admission of this witness is against his interest. The evidence of this witness is also within four corners of section 50 of the Evidene Act, as such, is admissible and reliable and the learned court below has rightly relied upon his evidence. 22. P.W. 10, Dhaneshwari, who is defendant No. 8 has fully supported the plantiff case and has stated that she is the daughter of Mathura. The learned counsel submitted that this Dhaneshwari Devi was defendant No. 8. She has not filed W.S. In my opinion, none filing of W.S. by Dhaneshwari is of no consequence. She is not contesting the claim of the plaintiff. She has come to depose as a witness in favour of the 12 plaintiff and therefore, the evidence of this witness , i. e. Dhaneshwari Devi cannot be thrown on the ground that she has not filed W.S. On the otherhand, it appears that in the cross-examination only, a suggestion has been given at Paragraph-19 by the defendants/appellants that she is not the daughter of Mathura. 23. In the pleading also, and in cross-examination to this witness also , it is only denied that she is the daughter of Mathura. Who is she has not been disclosed by the defendant. In my opinion, therefore, this is a mere denial for the sake of denial. The defendant was required to plead as to who she is, if not the daughter of Mathura. In the present situation, in my opinion, the mere evasive denial is no denial. Dhaneshwari Devi came to the court for examination as P.W.10. The defendant only suggested her that you are not the daughter of Mathura without disclosing as to who she is, and from where she came. On the otherhand, defendant himself who was examined as D.W. 15 at Paragraph-6 has stated that Dhaneshwari never reside in the village. Dhaneshwari is aged about 50-55 years and to the court question at the end of Paragraph-12, this witness has stated that he has stated all these things about that Dhaneshwari Devi who has been examined as a witness in this case. 24. In Ext-1/A the sale deed executed by Rajman Gor, defendant No. 2 Sudarshan Singh, statement has been 13 made that Dhaneshwari is daughter of Mathura. 25. On the otherhand, the defendants have also examined witnesses. The learned trial court has considered the evidence, oral evidence of the defendants. From perusal of the evidences of these witnesses examined by the defendant-appellant, it appears that all the evidences are in negative. They only stated that Mathura had no daughter. Therefore, the defendants/appellant has adduced evidence in negative. It is well settled that negative evidence cannot be proved. It is only in the form of denial. The plaintiff has as discussed above, adduced positive evidence and therefore, he is required to prove the fact alleged by him. In such view of the matter, the negative evidence adduced by the defendants is not required to be dealt with in detail because as stated above, the defendants have not pleaded as to who Dhaneshwari Devi is. Therefore, the defendant is not required to prove the negative fact pleased by him. For him, mere denial is sufficient. The plaintiff has to prove the fact alleged by him. 26. In view of my above discussion of the evidences, it appears to me that all the witnesses are competent to depose about the relationship of Dhaneshwari & Mathura and their evidences are admissible u/S 50 of the Evidence Act. 27. The learned court below, therefore, rightly 14 relied upon the evidences of these witnesses. I, therefore, find no illegality in the finding of the learned court below. I, therefore, find that Dhaneshwari is the daughter of Mathura Gor. The finding of the trial court on this point is hereby confirmed. 28. The learned counsel for the appellant submitted that the learned court below has wrongly given a finding that there was no partition between the parties. It was not a case of the plaintiff that Mathura was joint with his two brothers. The learned counsel further submitted that therefore, the finding of the court below on this point is liable to be set aside. 29. So far this argument is concerned, in my opinion, it is not required to be decided in this appeal. Even if it is held that Mathura was separate, then also Dhaneshwari will inherit the share of her father i.e. 1/3rd if it is held that Mathura was joint, then also she is entitled for 1/3rd . it is admitted that she had sold her share to the plaintiff. Even if there was partition between the defendant No. 2 to 7 , it will not effect the share of Dhaneshwari and the partition will not be binding on Dhaneshwari. 30. In view of my above discussion, point No. 1 is accordingly, answered that Dhaneshwari is the daughter of Mathura Gor. 31. Point No.II: From perusal of the impugned judgment, it appears that the learned court below has held 15 Patna High Court, the 12th day of May, 2010 AFR/AKV that the plaintiff is entitled for mesne profit from the date of institution of the suit. So far this part of the decree is concerned, in my opinion; the learned court below should have held that the plaintiff was entitled to mesne profit from the date of deposit of money in the court below and not from the date of institution of the suit. A Division Bench of this Hon’ble Court in a decision reported in AIR 1962 Pat 203 has held that mesne profit is to be given from the date of deposit of money and not from the date of institution of the suit. I, therefore, modify that part of the judgment and decree to the extent that the plaintiff is entitled for mesne profit from the date of deposit of money and not from the date of institution of the suit. 32. In the result, this appeal is dismissed with modification of the judgment and decree as indicated above to the effect that the plaintiff is entitled for mesne profit from the date of deposit of money only. In the facts and circumstances of the case, there shall be no order as to costs. (Mungeshwar Sahoo,J.)