JUMMA Vs. JIWAN AND OTHERS

JUDGEMENT

(1.) The appellant-plaintiff is in Regular Second Appeal against the concurrent findings of facts and law, whereby, the suit for declaration was partly decreed.

(2.) The contention of Mr.Lokesh Sinhal, learned counsel for the appellant is that Hamida had not been proved as son of Chhiman @ Chumman. However, he is not aggrieved that Muradi was the mother of Hamida, Thawaria and Jumma, however, they were born from different fathers. After the death of Nanhey, Smt. Muradi solemnized kareva marriage with Fakira. Out of their lion Thawaria was born. He further submits that Hamida in the voter list has been mentioned as 52 years old, whereas, Jumma and Thawaria as 39 and 49 years old. The dispute is with regard to the land measuring 12 kanals 13 marlas. Though the grievance of the appellant-plaintiff was that even Thawaria was not entitled as he was not son of Fakira and Muradi, however, the lower Appellate Court found that Thawaria is son of Fakira, therefore, he has no grievance. He further submits that the lower Appellate Court, being the last Court of fact and law, was enjoined upon an obligation to determine each and every question as per the provisions of Order 41, Rule 31 of the Code of Civil Procedure, much less, documentary evidence brought on record. However, after going through the order, in one paragraph, appeal has been dismissed. In essence, there has been no evidence which clinches the plea/submission of the plaintiff that Hamida was not son of Chhiman, therefore, he is not entitled to inherit the property, thus, substantial question of law arises to be adjudicated by this Court.

(3.) Mr. Sudhir Aggarwal, learned counsel appearing on behalf of respondents No.1 to 3 submits that documentary evidence has been discussed while dismissing the appeal. The said evidence did not support the case of the plaintiff, inasmuch as parentage has been shown of Chhiman. The plaintiff has not been able to prove that Hamida was born out from the loins of Muradi with some other husband. He further submits that in order to prove that Hamida was not born out from the loins of Chhiman and Fakira, the plaintiff was required to discharge the burden by leading direct and cogent evidence, particularly, by taking aid of provisions of Sec. 50 of the Indian Evidence Act, thus, prays for dismissal of the appeal.