KASTURI Vs. AFLATOON AND OTHERS

JUDGEMENT

(1.) The facts giving rise to this second appeal may briefly be stated as under : Charhta had four sons Gainda, Pirthi, Kishna and Bakhtawar. Out of these, only Kishna was married, his wife being Mst. Bholi and he had a daughter by the name Mst. Kasturi. Gainda and Pirthi died; wife of Kishna also died and Kishna himself left his village Bakhtawar and was not heard of. The entire property, therefore, came to be held by Bakhtawar. Mst. Kasturi came to live with Bakhtawar, her uncle. However, when she was only 10 or 11 years of age, she was abducted by one Aflatoon, who was the brother-in-law (Sala) of one Jawala of this very village Batawar. This happened early in 1910. This Aflatoon belonged to Ambrehta, a village in Uttar Pradesh. A report was lodged by Bakhtawar on 7th February, 1910, Exhibit P-1, but it appears that the culprit was not traced and the matter was not pursued. Bakhtawar died on 18th of March, 1957. His estate was claimed by his collaterals, who are defendant-respondents in the present litigation. The plaintiff, Mst. Kasturi, claiming to be a daughter of Kishna was present at the time of the mutation but she was unsuccessful before the Revenue Officer and again in appeal. She consequently brought the suit, out of which the present appeal has arisen, on 30th of January, 1959, claiming possession of the estate of Bakhtawar in her capacity as his niece. The defendants took up the position that Kishna never had any daughter and that the plaintiff had been put forward by one Dasondhi Ram of this very village, who was acting as the mukhtar-i-am of Mst. Kasturi in order to deprive the defendants of their inheritance. Apart from a preliminary issue whether the plaint showed any cause of action, which was decided in favour of the plaintiff, the only issue in the case was as follows :-

(2.) One of the points taken by the lower appellate Court in holding against the plaintiff-appellant was that she had failed to put in a copy of the electoral rolls of Ambrehta, where she lived with Aflatoon, and of Hemo Majra, where she recently started living with her son and that the electoral rolls would have shown her and her family members in a certain house of Ambrehta or Hemo Majra and that it appeared that the electoral rolls were not helpful to the plaintiff's case. An application was made in this Court for admission of additional evidence by way of documentary evidence being the extracts from the electoral rolls of Hemo Majra and a copy of the mutation of that village, in which Mst. Kasturi acted as a guardian of her sons, who were described as the sons of Aflatoon. By my order dated 13th of January, 1967, I accepted this application and remanded the case to the trial Court with the direction that one opportunity should be given to the plaintiff-appellant to bring these documents properly on the record and to give a similar opportunity to the respondents to put in any evidence in rebuttal. In compliance with this, the plaintiff brought on the record electoral rolls of village Hemo Majra for the years 1958/1960 (Exhibits P.R.W./1 and P.R.W./3), evidencing the entries relating to Mst. Kasturi and that of Gajja Singh son of Aflatoon. Similarly mutation No. 409 of that village (copy Exhibit P.R./2) was produced which indicated that Gajja Singh abd Baru, sons of Aflatoon of village Hemo Majra, had sold in 1945 some land to one Bachan Singh, son of Kapur Singh, and in the mutation proceedings relating to that sale, Smt. Kasturi widow of Aflatoon, appeared as the mother of Baru vendor, who was minor.

(3.) On behalf of the appellant, it was conceded that the finding of the learned lower appellate Court that Smt. Kasturi has not been proved to be the daughter of Kishna, would, in the normal circumstances, be a finding of fact, which would not be open to challenge in second appeal merely on the ground that, according to the appellant, the evidence has not been properly appraised. The learned counsel, however, urged that the finding of the lower appellate Court was vitiated, inter alia on the ground that the Court has misread the evidence of very important witnesses and that on that ground as well as on the ground that additional evidence has been brought on the record, the entire evidence should be re-appraised by this Court.