SARJUG SINGH Vs. RAM MURAT SINGH

JUDGEMENT

(1.) THE Plaintiffs are the appellants in this Second Appeal against the Judgment of affirmance. The Plaintiffs filed a suit for partition claiming half share of the property fully mentioned in Schedules A to E of the plaint. Shortly stated the case of the Plaintiffs is that one Thakur Rai had three sons, namely, Ram Chandra Rai, Raghu Rai and Yadu Rai. Thakur Rai died in the state of separation before Cadestral Survey operation. Ram Chandra Rai had three sons, namely, Deo Narain Rai, Deodhari Rai and Ramdeni Rai. Deo Narain Rai died before the C.S. Operation leaving behind his sons, namely, Daroga Rai and Ram Chander Rai in the state of jointness with his brother. Deodhari Rai died 52 years back from the date of filing of the suit. Ramdeni Rai and Daroga Rai were members of the joint family. Daroga Rai died about 15 years back leaving behind his sons, plaintiff nos. 1 and 2, namely Mukhram Rai and Sarju Rai. According to the plaintiffs, Ramdeni Rai and the plaintiffs succeeded the property of Ram Chandra Rai. It is further alleged that during the last Cadestral Survey Operation, Ram Chandra Rai was alive and, as such, the land stood recorded in the Cadestral Survey Khatian in the name of Ram Chandra Rai. After the death of Ram Chandra Rai, Ramdeni Rai became the Karta of the family and, accordingly, the Khatian was prepared in the name of two brothers including Daroga Rai, father of the plaintiffs. It is alleged that out of the joint family fund, some of the properties were purchased in the name of the plaintiffs and the defendants, but the said properties was joint properties, though the plaintiffs and the defendants were separate in mess for last about 7 years. The defendants have appeared and filed their written -statement challenging the very status of the plaintiffs, inasmuch as it has been alleged that the plaintiffs are not the sons of Daroga Rai. On the basis of the pleadings of the parties, the trial Court framed as many as 7 issues, out of which Issue No. 4 is "Are the plaintiffs sons of Daroga Rai". The Trial Court, on consideration of the materials on record, non -suited the plaintiffs on the ground that they are not the sons of Daroga Rai and as such, they are not entitled to any share in the disputed property. The appellate court upheld the findings of the trial court and held that the Plaintiffs have not been able to prove the marriage of Daroga Rai with Lagni, the alleged mother of the plaintiffs.

(2.) LEARNED Counsel for the appellants has challenged the judgment and decree of the lower appellate court on the ground that the Court has misinterpreted Exhibit -2, which is registered sale deed dated 29.8.1973 executed by one Talukraj Devi in favour of plaintiff no. 1 with respect to 9 Decimals of land. He stated that Talukraj Devi was the daughter of Bircha, son of Jaddu. Similarly Exhibit 2 Kha and 2 Ga are the sale deeds dated 26.2.1969 and 24.2.1971 executed by one Ram Krit Singh son of Ram Chandra Singh in favour of son Daroga Rai and plaintiffs in favour of one Balishu Pal with respect to 2.3 Acres of land respectively. Exhibits -10 to 10 Kha are the Khatian published on 12.12.1969 wherein parties were recorded joint. Learned counsel further submitted that the lower appellate court has not considered the oral evidence, particularly the evidence of P.W. 5; P.W. 6; P.W. 7; P.W. 14; P.W. 15 and P.W. 18., while dismissing the appeal of the plaintiffs. In opposition, learned counsel for the respondents have supported the judgment and decree passed by Courts below and submits that the Lower Appellate Court has considered both oral and documentary evidence, as such this Court sitting in Second Appeal can not interfere with the findings recorded by the Courts below. In the light of the submission of the learned Counsel, I have perused the judgment of the lower appellate court where from it appears that, no doubt, lower appellate court has noted the submissions of the counsel on oral evidence but not recorded its independent finding on such evidence. Similarly the documents filed on behalf of the plaintiffs has been rejected only on the ground that those documents were created during the pendency of the suit. Admittedly the suit was filed in the year 1974 and the documents, namely, Exhibits -2, 2K, 2Kha and 2Ga are of the year 1973, 1962, 1969 and 1971. Khatians were published in December, 1969 being Exhibit -10 to 10 Kha, where from it appears that the parties were recorded joint and, as such, it cannot be said that those documents were created during the pendency of the suit. The documents referred to above, in my view, are relevant and unimpeachable documents, which should have been considered by the lower appellate court, in the light of the submissions made on behalf of the appellants.