IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.307 of 2009 1.Rajendra Thakur, Son of Late Sarju Thakur. 2.Upendra Thakur @ Upendra Sharma. 3.Ravindra Thakur @ Ravindra Kumar. Both Sons of Rajendra Thakuar. All R/o Village & P.O.-Laitar,P.S.- Giriyak, District- Nalanda ------Defendants/Appellants/Appellants. Versus Shanti Devi, Wife of Sri Rajendra Sharma, R/o Village & P.O. Paroha, P.S.- Manpur, Disttrict-Nalanda. ---Plaintiff/Respondent/Respondent. ----------- 7. 24.10.2011. Heard the learned counsel appearing on behalf of the appellants and also learned counsel appearing on behalf of the respondent. This appeal has been filed against the judgment and decree dated 10.06.2009 passed by the District Judge, Nalanda at Biharsharif in Title Appeal No.38/08 affirming the judgment and decree dated 31.07.2008 passed by Sub Judge, Biharsharif in Title Suit No.38/04. The plaintiff has filed suit for partition of half share in the property mentioned in Schedule I of the plaint and by appending a genealogy in Schedule II of the plaint, the plaintiff has asserted herself to be daughter and heir of Sidhu 2 Thakur who was having half share in the joint family property. The defendants by filing their written statements have resisted the grant of the relief to the plaintiff on the ground that the plaintiff was the “Angurlagwa” daughter of Sidhu Thakur meaning thereby that the plaintiff was already born to her mother Devki Devi and came with her after her marriage to Sidhu Thakur. Thus the core issue between the parties was the status of the plaintiff Shanti Devi as own daughter of Sidhu Thakur or “Angurlagwa” daughter of Sidhu Thakuar. From the pleadings of the parties, as appearing in the impugned judgments it appears that it has not been disputed by the defendants that the plaintiff was living with Sidhu Thakur in his family as daughter and only fact which has been disputed is that the plaintiff Shanti Devi was not born to Sidhu Thakur out of his wedlock with Devki Devi rather she was already the daughter of her mother Devki Devi before her (mother) marriage to Sidhu Thakur. The specific issue was framed by the lower court in this regard and both the parties led their evidence in support of their respective cases. After considering the evidence and pleadings of the parties the lower court came to the finding that the 3 plaintiffs Shanti Devi was not “Angurlagwa” daughter of Sidhu thakuar and accordingly, the suit was decreed holding her to be entitled to half share in the suit property. In appeal by the defendants, the appellate court reappraised the evidence of the parties in view of rival submissions and has concluded thereafter that the plaintiff Shanti Devi was the daughter of Sidhu Thakur and not his “Angurlagwa” daughter as asserted by the defendants. From the judgment of the appellate court it is clear that it has meticulously analysed the deposition of witnesses including the deposition of the defendant no.1 who appeared as D.W.4 and took notice of the fact that in his cross-examination he had failed to disclose the name of the original father of Shanti Devi and had also accepted that he had not seen the wife of Sidhu Thakur. Further the appellate court has also relied upon the deposition of P.W.5 who is brother-in-law of Sidhu Thakur and thus a close relative having special means of knowledge regarding the relationship in question. On the basis of appreciation of the material evidence on record, the appellate court thus concurred with the finding of the trial court regarding the status of Shanti Devi as daughter of Sidhu Thakur. Learned counsel appearing on behalf of the 4 appellants has submitted that both the courts below have wrongly placed the burden of proof on the defendant to prove the disputed daughtership of the plaintiff Shanti Devi. It has been urged that even otherwise also the evidence on record regarding the status of Shanti Devi as daughter of Sidhu Thakuar do not conform to the provisions of Section 50 of Indian Evidence Act and the conclusions of both the courts below on the basis of such evidence regarding the status of Shanti Devi as daughter of Sidhu Thakuar can not be sustained. The perusal of the impugned judgments of both the courts below shows that specific issue regarding the daughtership of Shanti Devi has been framed and both the parties have led their evidence on that issue in support of their respective contentions. Thereafter both the courts below on consideration of the rival evidence of the parties have recorded the finding on the said issue. In this view of the matter, the question of burden of proof becomes immaterial and the finding cannot be faulted with on this score. Even otherwise also it is the specific case of the defendants themselves that Shanti Devi was “Angurlagwa” daughter of Sidhu Thakur but simultaneously it has not been denied by 5 them that Shanti Devi was living with Sidhu Thakur in his family as her daughter. Thus it is the defendants who want the court to believe that the apparent state of affairs was not the real state. Clearly in such a situation the burden was upon the defendants to prove the real fact as asserted by them. The submission with regard to the evidence on record being not in conformity with the provision of Section 50 of Indian Evidence Act has also no substance in view of the evidence of P.W.5 Yadu Thakur, who happens to be brother-in-law of Sidhu Thakur and thus a close relative having special means of knowledge regarding the relationship of Shanti Devi with Sidhu Thakur. Besides that both the courts below have also taken into consideration other evidence including the deposition of the defendant no.1 himself for coming to the conclusion that the plaintiff Shanti Devi was not the “Angurlagwa” daughter of Sidhu Thakuar. There does not appear any perversity in the finding of fact by both the courts below. For the foregoing reasons, there is no substantial question of law arising for consideration in this appeal, which is, accordingly, dismissed. Nitesh ( V. Nath, J.)