FIRST APPEAL No.358 OF 1979 Against the judgment and decree dated 31.01.1979 passed by Sri Gauri Shankar Choube, the learned Subordinate Judge, Jamui in Title Suit No. 8 of 1976. ********* MATHURA BARAI & ORS------------------------------------Defendants-Appellants Versus SUDAMA DEVI-----------------------------------------------Plaintiff-Respondent For the Appellant – Mr. Kamal Nayan Choubey, Sr. Advocate Mr. Satyendra Narain Singh, Advocate For the Respondent – Mr. Ajay Kumar Sinha, Advocate Dated : 21st day of September, 2010 P R E S E N T HON'BLE MR. JUSTICE MUNGESHWAR SAHOO ------------ J U D G M E N T Mungeshwar Sahoo, J. (1) The defendants have filed this First Appeal challenging the judgment and decree dated 31.01.1979 passed by Sri Gauri Shankar Choube, the learned Subordinate Judge, Jamui in title suit no. 8 of 1976 decreeing the plaintiff-respondent’s suit for partition. (2) The plaintiff-respondent, Sudama Devi filed aforesaid title suit no. 8 of 1976 claiming for partition of her 4 Anna share in the suit property. Her case in short is that one Jitan Barai was the common ancestor. He died in a state of jointness with his two sons Akal Barai and Tulsi Barai before the cadastral survey. Akal Barai had two sons namely, Gango Barai and Saryug Barai. Tulsi Barai had a son, Masudan Barai. All of them were members of a joint Hindu family and Gango Barai was the 2 Karta of the family. Plaintiff is the daughter of Saryug Barai and her mother was Sitla Devi. Saryug Barai died in or about the year 1948 in a state of jointness leaving behind his widow, Sitla Devi and the plaintiff, Sudama Devi as daughter. Tulsi Barai died prior to Akal Barai. After death of Akal Barai, Gango Barai became the Karta of joint family till his death in 1968. The mother of the plaintiff namely Sitla Devi died in the year 1965 leaving behind the plaintiff and her two sons. After death of Gango Barai, Masudan became the Karta of the joint family. The joint family possessed the suit property. On the death of Saryug Barai, the plaintiff’s mother inherited the interest of her husband as a limited owner and after passing the Hindu Succession Act, she became the absolute owner of the property which was inherited and possessed by her. (3) The further case of the plaintiff is that she was married by her mother with the help and assistance of the other joint family members from the joint family property possessed jointly by her mother in joint family property. On the death of her mother in 1965, the plaintiff succeeded to her mother. She used to get her share in the income through Mathura Barai and prior to him, through Gango Barai and Masudan Barai. Since for sometimes past, the defendants are causing disturbance. The plaintiff demanded for partition but they refused. Hence, the suit for partition was filed. (4) The defendant no. 1 appeared and filed a contesting written statement. According to his case, as stated in the written statement in short is that Saryug Barai died in the year 1934 and not in the year 1948. Therefore, the entire joint family properties devolved upon the surviving co-parceners namely Gango Barai and Masudan Barai. Sitla Devi was entitled to maintenance only. She remained for few months after the death of Saryug Barai and then married with second husband and went 3 away taking her daughter, the plaintiff with her. Sitla Devi died in 1947 at Jamalpur i.e. the place of her second husband. In such view of the matter, the plaintiff has not acquired any interest in the joint family property and she was never in possession over the suit land. Her mother was also never in possession of any portion of suit land. (5) On the basis of the above pleadings of the parties, the learned Court below framed 5 issues. The material issues are issue nos. 2, 3 and 4. The said issues are re-produced here-in-below: 2. Whether the plaintiff has community of title and unity of possession over the suit lands? 3. Whether Saryug Barai died in the year 1934 or in the year 1948? 4. Whether Sitla Devi died in the year 1947 or in the year 1965? (6) The learned Court below discussed all these three issues together and found that Saryug Barai died after 1942 and Sitla Devi, the widow of Saryug Barai died after 1956 and therefore, there is complete unity of title and possession of the plaintiff with respect to suit land. On these findings, the learned Court below decreed the plaintiff-respondent’s suit for partition. (7) Mr. Choubey, the learned Sr. Advocate on behalf of the appellant submitted that the learned Court below has wrongly decreed the plaintiff’s suit by making a third case. The learned counsel submitted that according to the plaintiff, Saryug Barai died in 1948 whereas according to the defendant, he died in 1934. But the learned court below made a third case by finding that Saryug Barai died after 1942 and likewise, so far death of Shitla Devi is concerned, the case of the plaintiff was that she died in 1965 whereas according to the defendant-appellant, she died in 1947, the learned Court below made a third case that she died after 1956. The learned counsel further submitted that there are overwhelming 4 evidences available on record to show that Saryug Barai died in 1934 i.e. in the year of earthquake and likewise, there are overwhelming evidences that Sitla Devi died in 1947. The learned counsel further submitted that Sitla Devi married second husband, therefore, she could not have inherited the property even if her husband died in 1948. On these grounds, the learned counsel submitted that the impugned judgment and decrees are liable to be set aside. (8) The learned counsel appearing on behalf of the respondent submitted that there is no illegality in the impugned judgment and decree. According to the learned counsel, the learned Court below has meticulously examined the oral evidences adduced by the parties and given a finding on the basis of the evidence. It cannot be said that the finding of the learned Court below is based on no evidence. The learned counsel submitted that the main controversy between the parties was that Saryug Barai died in 1934 or 1948. According to the plaintiff, he died in 1948 i.e. after coming into force of the Hindu Women’s Right to Property Act, 1937. According to the defendant, he died prior to coming into force of that Hindu Women’s Right to Property Act, 1937. Likewise according to the plaintiff, her mother Sitla Devi died after coming into force of Hindu Succession Act, 1956 and according to defendant Sitla Devi died prior to coming into force of Hindu Succession Act, 1956. The learned counsel further submitted that after examining the evidences, the learned Court below found the version of the plaintiff to be true that Saryug Barai died after coming into force of Hindu Women’s Right to Property Act, 1937 and likewise Sitla Devi died after coming into force of Hindu Succession Act, 1956. In such views of the matter, the impugned judgment and decree cannot be interfered with in this appeal. The learned counsel further submitted that the First Appeal has got no merit and it is liable to be 5 dismissed with cost. (9) In view of the above contentions of the parties, the questions arise for consideration are as follows: (i) Whether father of the plaintiff namely Saryug Barai died in the year 1948 or in the year 1934? (ii) Whether the mother of the plaintiff namely Sitla Devi died in 1965 or in the year 1947? (iii) Whether the plaintiff has got unity of title and possession over the suit property? (10) All these points are interlinked and therefore, let us consider these points together. (11) In the plaint at Paragraph 7, it is pleaded that Saryug Barai died in 1948 and at Paragraph 10, it is pleaded that Sitla Devi died in 1965. At Paragraph 12 of the written statement, it is stated that Saryug Barai died in a state of jointness with his brothers in 1934 and at Paragraph 13, it is stated that even if it be proved by the plaintiff that her father died in 1948 in the state of jointness with his brothers, her mother could not inherit his interest because she took another husband much before coming into force of Hindu Succession Act. Therefore, the main defence of the defendant is that even if it is held that plaintiff’s father died in 1948 then also she did not inherit any interest in the property because she married 2nd husband just after death of Saryug Barai prior to coming into force of Hindu Succession Act. Therefore, at one place, pleading of the defendant is that Saryug Barai died in 1934 and in another place that even if he died in 1948 then also the plaintiff will acquire no title. (12) The parties had adduced only oral evidences in support of the year of death. The date or month of either death of Saryug Barai or Sitla Devi is neither pleaded nor stated in evidence. P.W. 1 and P.W. 2 are 6 formal witnesses. So far the points involved in this case are concerned, they have not stated anything. P.W. 3 is a co-villager of Saryug Barai. His evidence was recorded in January, 1979. He has clearly stated that Saryug Barai died near about 30-31 years ago living behind his widow, Sitla Devi and daughter, Sudama Devi. After his death, his widow and daughter remained in the house. Sitla Devi never married second time. Sudama Devi was married from the house of her father. In Paragraph 2, he has stated that Sitla Devi died 13-14 years ago. In cross-examination at Paragraph 8, he has stated that when Saryug died, the plaintiff was aged about 10 years. He also stated that now Sudama Devi is aged about 40 years. P.W. 4 is also a co-villager of Saryug Barai. He has also stated that Saryug Barai died about 30 years ago leaving behind Sitla Devi and daughter, Sudama Devi. Sitla Devi was leaving with Gango Barai. She has not married second time. No doubt in Paragraph 2, he has stated that Sitla Devi died 30 years ago but subsequently he has again stated that 14- 15 years ago, Sitla Devi died. In the cross-examination at Paragraph 4, he has stated that Sudama Devi lives at Bhagalpur and she comes to Guguldih for taking the crops of her share. (13) The learned counsel appearing on behalf of the appellant submitted that the witnesses are not reliable because there are many discrepancies in the evidences of these witnesses. None of them have stated that Saryug died in 1948 and Sitla died in 1965. No doubt, no such definite evidence is there but the witnesses have given the indication about the year of death. These witnesses have stated that Saryug Barai died 30-31 years ago and Sitla Devi died 14-15 years ago. On calculation, it becomes clear that Saryug Barai died either in 1947 or 1948 and likewise Sitla Devi in 1964 or 1965. It may be mentioned here that it is not a criminal case and therefore, the plaintiff is not required to prove the 7 case beyond all reasonable doubt as required in the criminal case. The death of the said persons occurred so many years ago and it is not expected from any persons to give particular date, month or year more-so when the parties are villagers and do not maintain any record. Because of lapse of time, minor discrepancies in the evidences are bound to occur. But on that ground the evidences cannot be discarded. One cannot expect the evidences to be arithmetically correct. (14) P.W. 5 is only on the point that plaintiff was taking her share from Guguldih either in case or in kind. P.W. 6 has also stated that the Naihar of Sitla Devi was in his village. He has also stated that Saryug Barai died 30 years ago and Sitla Devi never married second time. Sitla Devi died 14-15 years ago. P.W. 7 is Sudama Devi, the plaintiff herself. She has also stated the same thing as pleaded in the plaint. She has fully supported her case. The learned counsel could not point out any such vital evidences in her cross-examination so as to discredit her. (15) The defendants have also adduced 10 witnesses in support of their case. D.W. 1 has stated that Saryug died in the year of earthquake. After 1 or 1½ month, Sitla Devi went away from Guguldih and never returned. Sudama also went with her. At Paragraph 4, he has stated that he cannot say whether Sitla Devi married second time. At Paragraph 5, question was put to him when Sitla Devi died to which he said that she died in the year of independence. It may be mentioned here that this D.W. 1 is the defendant, Mathura Barai himself. In the cross- examination at Paragraph 8, he has clearly stated that he cannot say when Sitla Devi died and so he is not able to say whether she died after independence or before independence but he heard that she died in the year of independence and where she died, he cannot say. He cannot say the year of independence. He cannot say in which year Sudama Devi was 8 born. At Paragraph 10, he has stated that he do not even knew Sudama earlier, he came to know her only after institution of the suit. This is the evidence of the defendant himself. D.W. 2 is formal witness. D.W. 3 is also a co-villager. He has only stated that Saryug Barai died in the year of earthquake but at the same time, in the next line he said that how many years, he cannot say. After his death, Sitla Devi went away from Guguldih saying that she is going to her Naihar. In the cross-examination, he has stated that he cannot say whether Saryug died prior to earthquake or after earthquake. He is not able to say the Naihar of Shitla Devi. At Paragraph 7, he has stated that when she went away from Guguldih, he cannot say her age. He will not be able to identify the plaintiff. He cannot say whether Sitla Devi died or is alive. He is unable to say whether Saryug died prior to Akal Barai. Therefore, the evidence of this witness is neither here nor there regarding the death of Saryug and Sitla. D.W. 4 is another co-villager. He has not stated about either the year of death of Saryug Barai or Sitla Devi. D.W. 5 is also in the same line as that of D.W. 4. D.W. 6, D.W. 7 both are formal witnesses. D.W. 8 said that she is cousin sister of Saryug Barai. She has stated that 40-44 years ago in the year of earthquake, Saryug died. One or two months after his death, Sitla Devi went away to her Naihar with her daughter Sudama and thereafter, she had no relation with the family of Saryug. D.W. 9 and D.W. 10 are formal witnesses. This is the evidence of the defendant’s side. (16) From the discussion of the oral evidences of the parties, it appears that the witnesses examined on behalf of the plaintiff, have categorically stated regarding the death of Saryug Barai and death of Sitla Devi. According to the witnesses as discussed above, Saryug died 30-31 years ago which means, he died in 1947 or 1948. The have also stated that Sitla died 14-15 years ago which means, she died in 1964 or 1965 9 and this is the case of the plaintiff. No doubt, there is no definite evidence regarding in which particular year Saryug died or Sitla died but then the evidence on the side of the defendant is also not reliable as discussed above. The defendant himself, D.W. 1 does not know anything. No evidence has been adduced regarding the second marriage of Sitla Devi. Although, in the pleading, it is specifically pleaded that even if it is held that Saryug died in 1948 then also Sitla will not inherit the property because she married second husband. There is no evidence in support of this pleading. The evidences of the defendants regarding year of death of Sitla Devi is totally lacking. (17) Considering all these evidences meticulously, the learned Court below came to the finding that Saryug Barai died certainly after 1942 and likewise Shitla Devi died after 1956. In other words, the learned Court below relied upon the version of the plaintiff. (18) The learned counsel for the appellant submitted that the learned Court below has made a third case. So far this submission is concerned, I find no force because the only controversy between the parties appears to be as to whether Saryug died prior to 1937 or after 1937 and likewise Sitla Devi died prior to 1956 or after 1956. The learned Court below after discussion of the evidences as stated above, accepted the case of the plaintiff. (19) In a decision reported in AIR 1983, Supreme Court 114(Madhusudan Das vs. Smt. Narayani Bai and others), Hon’ble Supreme Court held that the general rule is that the appellate Court should permit the findings of fact rendered by the trial Court to prevail unless it clearly appears that some special feature about the evidence of a particular witness has escaped the notice of the trial Court or there is a sufficient balance of improbability to displace its opinion as to where the 10 credibility lies. For better appreciation of the ration decidendi decided by the Hon’ble Supreme Court, the relevant Paragraph may be quoted here- in-below i.e. Paragraph 8 as follows: “The question whether the appellant was in fact adopted by Jagannathdas and Premwati has been determined essentially on the basis of oral testimony, and reference has been made to a few documents only in supplementation of the oral evidence. At this stage, it would be right to refer to the general principle that, in an appeal against a trial Court decree, when the appellate Court considers an issue turning on oral evidence it must bear in mind that it does not enjoy the advantage which the trial Court had in having the witnesses before it and of observing the manner in which they gave their testimony. When there is a conflict of oral evidence on any matter in issue and its resolution turns upon the credibility of the witnesses, the general rule is that the appellate Court should permit the findings of fact rendered by the trial Court to prevail unless it clearly appears that some special feature about the evidence of a particular witness has escaped the notice of the trial Court or there is a sufficient balance of improbability to displace its opinion as to where the credibility lies. In this connection, reference may usefully be made to W.C.Macdonald v. Fred Latimer, AIR 1929 PC 15, 18 where the privy Council laid down that when there is a direct conflict between the oral evidence of the parties, and there is no documentary evidence that clearly affirms one view or contradicts the other, and there is no sufficient balance of improbability to displace the trial Court’s findings as to the truth of the oral evidence, the appellate Court can interfere only on very clear proof of mistake by the trial Court. In Watt v. Thomas, 1947 AC 484, 486 it was observed: “ ………it is a cogent circumstance that a Judge of first instance, when estimating the value of verbal testimony, has the advantage(which is denied to Courts of appeal) of having the witnesses before him and observing the manner in which their evidence is given.” This was adverted to with approval by the Privy Council in Sara Veeraswami v. Talluri Narayya (deceased), AIR 1949 PC 32 and found favour with this Court in Sarju Parshad v. Raja Jwaleshwari Pratap Narain Singh, 1950 SCR 781, 783: (AIR 1951 SC 120 at p. 121). It seems to us that this approach should be placed in the forefront in considering whether the High Court proceeded 11 correctly in the evaluation of the evidence before it when deciding to reverse the findings of the trial court. The principle is one of practice and governs the weight to be given to a finding of fact by the trial Court. There is, of course, no doubt that as a matter of law if the appraisal of the evidence by the trial court suffers from a material irregularity or is based on inadmissible evidence or on a misreading of the evidence or on conjectures and surmises the appellate court is entitled to interfere with the finding of fact. Our attention has been drawn by the respondents to The Asiatic Steam Navigation Co. Ltd., v. Sub-Lt. Arbinda Chakravarti, (1959) Supp 1 SCR 979: (AIR 1959 SC 597) but nothing said therein detracts, in our opinion, from the validity of the proposition enunciated here.” (20) In view of the above discussion of the evidences, I come to the conclusion that the plaintiff has been able to prove that her father died in the year 1947 or 1948 whereas her mother died in the year 1964 or 1965. In the other words, it can be said that the plaintiff has been able to prove that her father died after coming into force of the Hindu Women’s Right to Property Act, 1937 and her mother died after coming into force of Hindu Succession Act, 1956 and therefore, she has the unity of title and possession over the suit property. The findings of the learned Court below on these points are hereby confirmed. (21) In the result, I find no merit in this First Appeal. Accordingly, this First Appeal is dismissed. In the facts and circumstances, the parties shall bear their own costs. Patna High Court, Patna Dated 21st September, 2010 N.A.F.R./ Saurabh (Mungeshwar Sahoo, J.)