UMA DEVI Vs. RAM CHARAN RAM

JUDGEMENT

(1.) This appeal has been admitted to hearing on the question whether the courts below are justified in rejecting the plaint and dismissing the suit and the appeal after holding that the plaintiffs are the sons of Budhan Ram.

(2.) It is not in dispute that the suit property belonged to Tunna Ram. According to the plaintiffs Tunna Ram had three sons namely, Mangaru Ram, Budhan Ram and Horil Ram. Sons of Mangaru Ram, Budhan Ram and Horil Ram are entitled to 1/3rd share each. According to defendant No. 1, who is Mangru Ram's son, Budhan Ram and Horil Ram were not Tunna Ram's sons. He has said that Tunna Ram had a wife Sahodri. But after Tunna Ram's death she was married to one Ram Dhani Ram, who had two sons Budhan Ram and Horil Ram from another wife. The Court below has found that Budhan Ram and Horil Ram were sons of Tunna Ram. The suit, however, has been dismissed on the ground that the plaintiffs have not been able to establish unity of title, and thus are not entitled to claim partition. On this finding, learned Counsel for the appellant has submitted that the court below has committed error of law in as much as once it is found that Mangaru Ram, Budhan Ram and Horil Ram are brothers in absence of any proof of partition by meets and bounds, it could not be held by the court of appeal below that the plaintiffs have got no unity of title. There is, however, a cross -objection also. In the cross -objection the finding that Mangaru Ram, Budhan Ram and Horil Ram are brothers has been challenged on the ground that the sole evidence on which this finding has been recorded is inadmissible. The only evidence, which has been relied upon by the court of appeal below on the question of relationship, is Ext. 'B', which is said to have been executed by Mostt. Sukari wife of Munna Kahar in favour of her daughter, Gangia Devi, wife of Horil Ram, on 17 -2 -1934. In this document there is mention that the transferee Mostt. Gangia Devi is the wife of Horil Ram, who is the son of Tunna Ram. This document also mentions that Ram Sharan Ram is the son of Horil Ram, The court of appeal below has found that the statement that Ram Sharan Ram is the son of Horil Ram is not true. Still it has relied upon Ext. 'B', the said deed of gift, to hold that Horil Ram and Budhan Ram are the sons of Tunna Ram. Except this document Ext. 'B', no other evidence has been accepted by the court of appeal below. It has said in its judgment "so obviously there is no oral evidence on the record worth the name adduced either on behalf of the plaintiffs or defendant No. 6 which could be said to be evidence relevant Under Ss. 50 and 60 of the Evidence Act. So obviously, the plaintiffs have failed on oral evidence to establish that they, or for that matter defendant No. 6, are the heirs of Tunna Ram". Since, I find that the court of appeal below having found that Horil Ram and Budhan Ram are the sons of Tunna Ram has disbelieved the case of the defendant No. 1, it is obvious, it has fallen in error holding that the plaintiffs have not been able to prove unity of title.

(3.) Ext. 'B' is the document executed by Sukari in favour of Gangia Devi, who has been described as wife of Horil Ram. In the said document Horil Ram has been described as the son of Tunna Ram. Sukari Devi is dead.