SHAILENDRA PRASAD SRIVASTAVA Vs. BAIDYA NATH PRASAD VERMA

JUDGEMENT

(1.) THE plaintiff has filed this First Appeal against the Judgment dated 30.07.2007 and the decree following thereupon signed on 10.08.2007 by Sri Raj Kumar Sinha, the learned Sub Judge Vth, Muzaffarpur in Title Suit No.346 of 1994 dismissing the plaintiffs suit.

(2.) THE plaintiff appellant filed the aforesaid title Suit No.346 of 1994 for declaration of his title alleging that the suit property detailed in Schedule I and II belonged to Girish Chandra Prasad. In the revisional survey record of right, the widow of Girish Chandra Prasad, namely, Tarawati Devi got the suit property recorded in the name of her grand son Umashanker Prasad as the father of Umashanker Prasad, namely, Suresh Chandra Prasad had pre-deceased Girish Chandra Prasad. THE said Umashanker Prasad also died during life time of Tarawati Devi in the year 1965. THE plaintiff being the only male member being the brothers son performed Shradh and started living with the widow Tarawati Devi in the residential house on plot No.123 in village Bairia. THE plaintiff being the only legal heir begun to look after Tarawati Devi. He used to appropriate the usufruct of the suit properties and also used to sell the fruits of mango orchard and lichi. THE plaintiff is an employee at Bhilai. He wanted to take her to Bhilai but she did not go and lastly she died in the month of September 1985 in village itself. In absence of the plaintiff, the villagers buried her. THE plaintiff came from Bhilai and performed Shradh. After her death, plaintiff begun to stay in the residential house and cultivated the suit properties without any interruption. He was also realizing rent from the tenant. THE plaintiff filed application for grant of rent receipt in his name and also obtain rent receipt.

(3.) THE learned senior counsel appearing on behalf of the appellant submitted that it is the specific pleading of the plaintiff in the plaint that he is the son of brother of Girish Chandra Prasad and showing his relationship, he specifically mentioned the genealogical table in the plaint. To the contrary, this genealogical table and the statement that the plaintiff is the nearest agnate of Girish Chandra Prasad was not denied in the written statement specifically by the defendant. According to the defendant, the only case pleaded that the property belonged to parents of Tarawati Devi and, therefore, the genealogical table of the plaintiff is irrelevant but the learned Court below framed Issue No.7 which was not raised by the defendant and that issue is not required to be decided because the defendant has not denied the same. THE learned counsel further submitted that if the allegation of the plaintiff is not denied impliedly, it will mean that the defendant admitted the allegation and, therefore, the plaintiff is not required to prove the same. But the learned Court below has wrongly framed the said issue and decided the said issue which was not disputed. THE learned counsel further submitted that the plaintiff have produced oral evidences as well as documentary evidences to show that the property belonged to Girish Chandra Prasad but the learned Court below discarded all those evidences on the ground that the plaintiff failed to prove the genealogy. According to the learned counsel, the learned Court below approached the case in wrong angle.