c M IL 13-i^^il. ^.-^JUM-1. ^J^ -JU1J1V..A.1 UK-IL P. SECONDAPPEALNO».^.L^L^./2.Q06 SiRgI^ B©OCh 100 OF OF CIVIL , / IL^NTIFF AEFENDANT 7...^-' .. ,.^'" ^/17 /^r ./y y .^"^/ ^' «^K-arihaiyalal, S/?o Kadiru P.atii lohar, aged about 3.4 years, R/o Village-SurdosTg.ar, P.S. Dondi, D^tt.- Di^g. .x^ <''<^' ^' ^" 100 OF S. Bai, D/o Sadhu ram Halwa, about 2.5 years Kutiiari Lokeshwari, D/o Utikriov.ni, aged about 8 •yesi's (Minor) tlifough its legal guardian StTit. S. Bai, P^/Q viilage 'Surdorig-ar, P.S. Dondi, Talzsil- Baloct Diste'ict Durg (Cl-il-iattisgarh) OF Second No. 14.2 ^ Appeilant/ Plaintsff Vs. Defendants S- Bai and JUDGiVIENT Sd/- Dhirendra Mishra Judge ^ Appe!!an^ Plalntiff COURT OF CHHATTISGARH : Second Appeal Ho. 142 of Kanhalyaiaj Vs. Respondents/ Defendants S. Bai another Appeilant by Shri Vishnu Kosta, Advocate. JUDGMENT (Dellvered on 16^09/2006) Dhlrendra Mishra, Heard on admission. 2. The appeiJanVpiaintiff has preferred this second appeal under Section 100 ofthe Code of'Cjvll Procedure against the judgment and decree dated 25.2.2006 in Civil Appeai No. 17W03 by the learned Additional District Judge, Balod, Dlstrict - Durg, whereby the civil appeal preferred by the appeiiant against the-judgment and decree dated 7.3.2003 passed in Civii Suit No. 25WC22 by learned Civil Judge, Class-i, has been dismissed. (Partles hereinafter sha!i be referred to as per their description before the trial Court). 3. The piaintiff filed a civil suit for deciaration that he is not the father of defendant No. 2, she be restrained by a decree of perpetuai injunction against using his name as her father and he aiso sought a declaratlon that defendant No. 1 shouid not write the.name of the plaintiff as her husband as he had no ^ reiationship with defendant No. 1 nor he is father of defendant No, 2 and he does not nave any reiationship whatsoever with defendant No. 1 and the defendants for the purpose of grabbing his movable and Immovable property and tarnishing his image in' the society, are ciaiming themselves to be his wife and daughter. The defendants have also fiied an application for malntenance in the Court of Judicial Magistrate First Ciass, Balod. He aiso pleaded that he has been acquitted in sessions triai No. 320/95 which was reglstered on the of complaint of defendant No. 1 with a finding that the act of the accused does not constitute the offence. 4. The defendants in their vvritten statement denied the averments of the plaint and that the piaintiff. has working as a teacher in viiiage Surdongar for 10 years up to 1995 and in that period they feii in tove and she had physlca! relationshjp with him, as a result of which she conceiyed. Thereafter, Panchayat convened in wnich the piaintiff admitted that the pregnancy of defendant No. 1 was through him and he proposed to give a plece of land for her mainienance which was refused by her and she lodged a report against the plaintiff in the police statlon, whereupon an offence under Section 376/342 ofthe indlan Pena! Code was registered against him. However, he was acqujtted by the crlmlnal Court with a finding that the physicai relationship of the plaintiff wlth defendant No. 1 was with consent and the prosecution has faiied to prove the offence againstthe accused/plaintjff. 5. . On the of pleadings of the respectlve issues were framed and the trial Court partly decreed the suit by recording a flnding that It is not proved that the piaintiff and defendant No. 1 are legaiiy wedded husband and ^-n^- wife, however, the clalm ofthe plalntlffthat defendant No. 2 is not his daughter has been rejected and it was held that it is proved that due to physical reiationshlp befrvveen the plaintjff and defendant No. 1, defendant No. 2 was born and that the suit is within iimitation. 6. The civil appeal preferred by the pjaintlff against the judgment and decree of the trial Court was further disiTiissed by the leamed Additional District Judge with identica! findings by the impugned judgment and decree. 7. Learned counse! for the appeliant/piajntiff subrnits there is no evidence on record regarding marriage of the pjaintlff with defendant No.1 and therefore, the findlng of both the Courts beiow that defendant No. 2 is the daughter of the piaintiff, is liiega! and contrary to Section 112 of the indlan Evidence Act and the Court beiow has commltted an iilegality by relying upon the documents of Ex.D/1 and Ex.D/2 being the birth certlficate and decision of Gram Sabha, as the birth certificate has been issued on the basls of information glven by defendant No. 1 and the document of Ex.D/2 does not ioear the signature of the piaintjff. Therefore, foliowjng substantiai questions of law arise for declsion of this second appeal: 1) 'Whether the performance of niarriage not proved by custom of by any other form appeliant with defendant No. 1, therefore, as per provision of Section 112 of the Evldence Act that the findlng of the court beiow that defendant No. 2 is the daughter of the appeiiant Is proper as per provisions of law:?" \ ^ 2), "Whether in spite of admission of defendant No. 1 that in Exhibit-D/1 blrth certificate nas been jssued by the cornpetent authorifr^ on the basis of her informatlon st the time of birth of the defendant No. 2 the learned court beiow justified reSying upon the ExhlbltD/1.?" 3) 'Whether the iearned court below in of the admjsslon of the defendant vvitnesses that Exhiblt D/2 js not signed by them, tne iearned court beiow justlfied reiying upon the Exhibit D/2 and given the finding that the appellant admitted in viliage pancSiayat that the defendant No. 2 is his daughterT 8. i have heard iearned counsei for the appellant and 1 have perused the material avaiiable on record including the irnpugned judgments. .9. The fjnding of the triai Court that defendant No. 2 is the daughter of the piaintiff.-through defendant No. 1 is based on the statement of defendant No. 1 who has deposed that she became pregnant as a resuit of physicai reiatlonship with Kanhaiyaiaj and gave birth to Lokesnwari in the hospitai. When her parents came to know her pregnancy, they convened a meeting in the viiiage and in the sald rneetlng, the plaintiff admitted the paternity of defendant No. 2 and he was ready to give a smali agricuiturai land In iieu of maintenance which was declined by them. The p!aintiff3s narne has been recorded in fhe schoo! register as father of Lokeshwari as aiso in the document of Ex.D/2 whjch is the decision of Gram Sabha. The statement of defendant No. 1 is duly corroborated by the statements of her witnesses Goutarhin, one Razia, Mannula! Gawde and ^ Sadhuram and the statements of these wltnesses stand unrebutted. Apart frorn this, the pialntiff was acquitted frorn the charge of rape by the learned Sessions Judge hoSding that the physica! relatjonship berween the two was with consent. However, there is no evidence on record that defendant No. 1 had physica! reiationshlp with any other person except the piaintiff. 10. The above finding of fact has been further confirmed by the iower Court and as such the finding of both the Courls beiow Is based on preponderance of probability and the same has arrived at by proper appreclation of the evidence availab!e on record, wnich being the concurrent finding of fact recorded by both the Courts below, does not warrant interference by thls Court in second as no substantia! questlon of iaw arises for adjudicatjon ofthis appea!. . ~ '-: ^"- 11. In the resuit, ihe appeal being .devoid of substance deseives to be dlsmissed atthe admisslon Itself and it js accordingly dismlssed. ^r^ Sd/- Dhirendra Mishra Judge