GANGADHAR Vs. SONABAI

JUDGEMENT

(1.) THIS is defendants' second appeal against the reversing judgment and decree dated 30.11.2006 passed by the 1st Additional District Judge, Kannod District Dewas, in Civil Appeal No. 76-A/2006. The appeal was admitted for final hearing and various questions were framed. However, it is not necessary to refer to them as the decision of the appeal turns on a single question :-

(2.) RESPONDENT filed a suit for declaration and possession of suit property together with mense-profits. About the following facts there is no dispute:- plaintiff's father Dhanna was the owner of suit property more particularly described in the plaint; plaintiff is the only daughter born out of wed-lock between Dhanna and Muliabai; Muliabai died in the year 1996. Plaintiff claimed that after death of Dhanna, Muliabai remarried Bhagwan and gave birth to appellant Gangadhar; he, therefore, had no right to retain the possession of suit property described in plaint, which belonged to her father Dhanna.

(3.) LOWER appellate Court has held against the appellant because in the opinion of the Court he failed to adduce birth certificate, school certificates; voter list, ration card etc. to prove that Dhanna was his father as claimed by him, or was it Bhagwan as asserted by the plaintiff? In this connection it is relevant to point out that plaintiff besides herself, did not examine any other witness. She admitted that apart from her deceased mother, no body else knew that Gangadhar was the son of Bhagwan. She further admitted that in a suit filed by Bhagwan against Muliabai and Gangadhar, Muliabai compromised the suit as mother of Gangadhar and his name is continuously recorded in the Revenue Records for last 30 to 40 years. Learned lower appellate Court failed to appreciate that when marriage between Dhanna and Muliabai admittedly existed then the burden was upon the plaintiff to prove the contrary and in absence of any cogent contemporaneous evidence presumption is always in favour of legitimacy of the offspring of the marriage. In our considered opinion, lower appellate Court was not justified in reversing the findings recorded by the Trial Court on mere flimsy grounds. The findings recorded by the lower Appellate Court against appellants on the basis of adverse inferences are therefore, unsustainable in law and deserves to be set aside.