SHANKARSAN SAHAY Vs. URMILA SAHAY

JUDGEMENT

(1.) Mr. Pradhan, learned advocate appears on behalf of appellant and submits, his client filed suit for declaration of title and possession over suit schedule-B property. His client deposed at trial but defendants did not. Even then the trial Court dismissed the suit on purported appreciation of facts. The dismissal was confirmed by the first appellate Court. Concurrent judgments of dismissal of suit gives rise to substantial questions of law involved, for admission of this appeal.

(2.) He submits further, his client is son of late Gouri Shankar Sahay and his second wife. His father had two brothers. There was a partition suit, in which neither his client nor his mother was made party. As a result in the suit, certain properties came to the share of late Rukmani Devi, who was stepmother of his client being first wife of his client's father. There was erroneous appreciation of evidence in laying emphasis on appellant's omission to produce sabik RoR establishing tally between land mentioned therein and land allotted to late Rukmani Devi in the partition suit. This emphasis was misplaced since appellant should have been given benefit of adverse presumption, on defendants omission to take the box. Therefore, plaintiff's evidence ought to have been accepted as uncontroverted.

(3.) It appears from judgment of the trial Court that in dealing with the suit it said and reiterated that there was no issue framed regarding appellant being son of late Gouri Shankar Sahay through his second wife. Issues arise on variance of pleadings. As such, it can be presumed that there was no dispute raised in the suit on appellant being the son of late Gouri Shankar Sahay.