IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.549 of 2009 1. JAGARNATH MAHTO, SON OF LATE JANGI MAHTO. 2. BAIJNATH MAHTO, SON OF LATE JANGI MAHTO. BOTH RESIDENTS OF VILLAGE-HORARIA, P.S. MINAPUR, AT PRESENT-SIWAIPATTI, DISTRICT- MUZAFFARPUR. ………………...PLAINTIFFS-APPELLANTS-APPELLANTS. Versus BINDESHWAR MAHTO, SON OF LATE DAROGA MAHTO, RESIDENT OF VILLAGE-HORARIA, P.S. MINAPUR, AT PRESENT-SIWAIPATTI, DISTRICT- MUZAFFARPUR. ………………DEFENDANT-RESPONDENT-RESPONDENT. ----------- For the Appellants : M/s. Yogendra Mishra and Mani Bhushan Kumar No.1, Advocates. For the Respondent : Mr. Manoj Kumar Manoj, Advocate. ---------- 5. 28.9.2010. The plaintiffs–appellants have preferred this appeal against the judgment and decree dated 22nd of October, 2009 passed by 4th Additional District and Sessions Judge, Muzaffarpur in Partition Appeal No. 35 of 2006, whereby the appeal has been dismissed and the judgment and decree passed by the Munsif (East), Muzaffarpur in Partition Suit no. 25 of 1986 has been affirmed. The original plaintiff, Lagni Devi (since deceased), had filed Partition Suit No.25 of 1986 for her 2 1/4th share described in the Schedule-I of the plaint and further for carving out the aforesaid share by appointing Survey Knowing Pleader Commissioner and thereafter putting her in possession thereof through the process of law. During the pendency of the suit, the plaintiff, Lagni Devi, had died and in her place her sons, defendant nos.3 and 4 (appellants herein) were transposed as plaintiffs. The defendant no.2, Jangi Mahto, also died during the pendency of the suit and his name was deleted from the suit. As per the case of the plaintiff, the entire suit property belonged to one Raghuvar Mahto, who had two daughters, Champa Devi and Chothi Devi. Daroga Mahto was the son of Champa Devi whereas Jangi Mahto was the son of Chothi Devi. The original plaintiff, Lagni Devi, was firstly married to Daroga Mahto, who died in the year 1958 and from the wedlock, a son, namely, Bindeshwar Mahto (defendant no.1) was born. It is further case of the plaintiffs that the entire property of Raghuvar Mahto was inherited by Daroga Mahto and Jangi Mahto and they were in joint possession and cultivation. After the death of Daroga Mahto, his wife, Lagni Devi {original plaintiff (since deceased)} married Jangi Mahto and later on out of the 3 wedlock, two sons (appellants herein) were born. It has further been mentioned that during the revisional survey, the land of revisional survey khata no.219 was wrongly recorded in the name of Bindesdhwar Mahto whereas the remaining lands were recorded in the joint names of the plaintiffs and the defendant. Thus, due to the difficulty in joint cultivation the plaintiff filed the suit for declaration of 1/4th share in the Schedule-I property. Defendant no.1 has contested the suit by filing written statement. In the written statement the claim of Lagni Devi (the original plaintiff), the wife of Daroga Mahto, has been refuted. It has been stated that Lagni Devi was the mother of defendant nos. 3 and 4, who were later on transposed as the plaintiffs after the death of original plaintiff. It has also been stated that Jangi Mahto and Lagni Devi did not have any concern with the family of Raghuwar Mahto. The trial court upon the pleadings of the parties has framed 9 issues. However, the case revolves upon the chief issue, i.e., as to whether the original plaintiff, Lagni Devi, was the widow of Daroga Mahto. Upon appreciation of materials on record, the trial 4 court has come to the conclusion that the plaintiffs have not been able to prove that the original plaintiff Lagni Devi was widow of Daroga Mahto and they could not prove their title upon the disputed suit property. As a result, the suit was dismissed on contest. The plaintiffs preferred Partition Appeal No.35 of 2006. The appellate court has also dismissed the same after affirming the findings recorded by the trial court. I have heard learned counsel for the appellants as well as the sole respondent. Learned counsel appearing on behalf of the plaintiffs-appellants urged that both the courts below have not appreciated the evidence adduced on behalf of the plaintiffs-appellants in proper perspective and their evidence has been discarded without assigning any reason. It has further been submitted that once the case of defendant regarding story of relationship, i.e., their mother being one Radhika Devi and sister being one Sita Devi having been disbelieved, as a natural corollary the plaintiffs’ case should have been accepted and Lagni Devi should have been declared to be the wife of Daroga Mahto. On the other hand, learned counsel appearing for 5 the respondent submitted that it is well settled that the plaintiff has to prove his case and for that purpose he cannot deprive the benefit of the business of the defendant. Learned counsel submitted that the court below upon proper appreciation of evidence led on behalf of the parties has come to the conclusion that the plaintiffs have not been able to prove that Lagni Devi was widow of Daroga Mahto. Upon hearing of rival submissions and perusal of the records of the case, this Court is of the opinion that both the courts below have recorded concurrent findings, that the original plaintiff, Lagni Devi’s marriage with Daroga Mahto could not be proved. So far the Ex.4, which is voter-list, is concerned, that only goes to show her relationship with Jangi Mahto being her wife. Upon scrutiny and evaluation of the evidence led on behalf of the plaintiffs, the appellate court has come to the conclusion that from her own evidence and evidence led by P.Ws., it appears that the admitted year of the death of Daroga Mahto, is 1958, and from the wedlock with Jangi Mahto as per the story set up by the plaintiffs, her sons were 16 and 8 years old and, as such, the entire story set up by the plaintiffs that Lagni Devi remarried Jangi Mahto after the death of Daroga Mahto falls flat as it would be 6 evident in above circumstances that she was married to Jangi Mahto even prior to the death of Daroga Mahto . In the above view of the matter, learned counsel for the appellants could not be able to put forward any error committed by the courts below leading to any substantial questions of law. As a result, this appeal is dismissed. Nitesh ( Dr. Ravi Ranjan, J)