ASHOK KUMAR Vs. BASANTILAL

JUDGEMENT

(1.) This is defendant's second appeal arising out of a suit instituted by plaintiffs-respondents 1 to 4 for partition. Briefly, the plaintiffs' case was that the plaintiffs and defendant 1 Sobhagmal were brothers and were entitled to succeed to the property of their brother Chandmal, who died on 17-9-1960. It was averred that defendant 1, however, denied the right of the plaintiffs to succeed to the estate of deceased Chandmal on the ground that his son defendant 2 Ashok Kumar was adopted by deceased Chandmal. Hence the plaintiffs filed the suit for partition. The suit was resisted by the defendants mainly on the ground that deceased Chandmal had adopted defendant 2 Ashok Kumar, son of defendant 1, two years prior to the death of Chandmal and, therefore, defendant 2 Ashok Kumar alone was entitled to succeed to the property of deceased Chandmal. The trial court, after appreciating the evidence on record, found that defendant 2 Ashok Kumar was validly adopted by deceased Chandmal and hence, he alone was entitled to succeed to the property of deceased Chandmal. In this view of the matter, the trial Court dismissed the plaintiffs' suit. On appeal, the lower appellate court held that defendant 2 Ashok Kumar was not proved to be the adopted son of deceased Chandmal. The lower appellate court, therefore, allowed the appeal and setting aside the judgment and decree passed by the trial court, decreed the plaintiffs' suit for partition. Hence, defendant 2 Ashok Kumar has preferred this second appeal.

(2.) Shri Sanghi, learned counsel for the appellant, contended that the lower appellate court had ignored the material evidence on record and without giving any cogent reason for interfering with the finding of fact arrived at by the trial court, set it aside. It was urged that the entire approach of the lower appellate court was perverse and findings were, therefore, vitiated. In reply, it was contended by Shri Saxena, learned counsel for the respondents, that the evidence led by the defendant-appellant to prove adoption was not reliable and the lower appellate court was, therefore, justified in holding that the adoption was not proved.

(3.) Before I proceed to appreciate the contentions urged on behalf of the parties, it is necessary to bear in mind that in a second appeal, interference with finding of fact, however erroneous, is not permissible unless the finding arrived at by the lower appellate court is based on misreading of evidence on record or has been arrived at by ignoring material evidence on record or is vitiated by any error of law. It has also to be seen whether the lower appellate court, in reversing the finding of fact reached by the trial court, has adhered to the well settled principle that where there is a conflict of oral evidence on any matter in issue and its resolution turns upon the credibility of the witnesses the appellate court should permit the findings of fact recorded by the trial court to prevail unless it clearly appears, as observed by the Supreme Court in Madhusudan Das v. Smt. Narayani Bai, AIR 1983 SC 114, 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. It is, therefore, necessary to turn to the judgment of the trial court to find out as to how it has proceeded to appreciate the evidence on record and has evaluated it and then to find out whether, in the circumstances of the case, the lower appellate court was justified in reversing the finding of the trial court regarding adoption.