SHEO PUJAN SINGH Vs. TARAMUNI KUMARI

JUDGEMENT

(1.) THIS first appeal has been filed by the defendants which arises out of the judgment and decree passed in a partition suit. The plaintiffs filed a suit for partition of 1/2 share in the suit properties fully described in the Schedule of the plaint. Plaintiff No. 1 is claimed to be the widow of the late Motichand Mahto and the plaintiff No. 2 is alleged to be the daughter of plaintiff No. 1.

(2.) According to the plaintiffs the said Motichand Mahto was separate from his brother Sheopujan Mahto, who died leaving behind the plain - tiffs. It is further alleged that the plaintiffs are in joint possession of the properties in the suit with the defendant No. 1, who, in fact, manages the property through cultivation as Bataidar. It is further alleged that the land stands recorded in the name of late Raghubir Mahto and, accordingly, all the papers stand in his name. It is further alleged that the husband of plaintiff No. 1 Motichand Mahto died of Tuberculosis. It is alleged that while plaintiff No. 1. was in service she used to reside in the house of her husband whenever she comes. The plaintiff made a demand for partition of share which was refused by the defendants and as such she has to file the instant suit for the relief sought for, as stated above. The defendant No. 1, who is only contesting defendant in the suit, has filed his written statement, inter alia, stating therein that the plaintiff is a stranger to the family of Raghubir Mahto and she never married Motichand Mahto. According to the defendants said Moti - chand Mahto died unmarried at the age of 14 years. According to the defendants the instant suit has been filed at the instance of the Sarpanch of Beda Gram Panchayat. However, the said Motichand Mahto died of Tuberculosis has been admitted in the written statement. In sum and substance the case of the defendants is that the plaintiffs are complete stranger to the family and she never married Motichand Mahto as alleged by her and, therefore, she is not entitled for partition of the family properties. On the pleadings of the parties, the Trial Court has framed as many as 9 issues, out of which issue Nos. 6, 7 and 8 are the relevant issues which are as follows : "(6) Is the plaintiff lady, Taramuni Devi, lawfully wedded wife of Motichand Mahto son of Raghubir Mahto ? (7) Is there unity of title and possession between the parties ? (8) Is the plaintiff entitled to get a decree as prayed for - The plaintiff altogether has examined 23 witnesses and filed several documentary evidence in support of her case. Similarly the defendants have also examined as many as 14 witnesses in order to support their case. The Court on consideration of the evidence both oral and documentary has answered the aforesaid issues is favour of the plaintiffs and decreed the suit as stated above.

(3.) THE principal and, in fact, the only argument of Mr. Asghar Hussain, learned Sr. Counsel appearing on behalf of the appellants is that the evidence adduced on behalf of the plaintiffs has not been considered in accordance with law, as much as, witnesses examined on behalf of the plaintiffs cannot be relied upon on the factum of relationship as they have no special means of knowledge and in support of his contention he has relied upon a decision in the case of Dalgobinda Paricha V/s. Nimai Charan Misra & Ors., reported in AIR 1959 SC 914. He has also submitted that the Court below has wrongly relied upon the documentary evidence which are not, in any way, relevant for the purpose of proving the relationship between the parties. While developing his argument learned Counsel has placed the evidence of PW 21 the photographer, who is alleged to have snapped the photograph of the couple, namely, plaintiff and deceased husband Motichand Mahto. PW 10 is the father of plaintiff. PW 11 and 12 are the witnesses who are alleged to have attended the marriage. PW 18 is the brother -in -law of the father of the plaintiff and similarly the PW 22 and 23 are the gotias of the defendants. PW 19 is the plaintiff herself. Mr. Hussain has also relied upon D.Ws., who have been examined upon DWs., behalf of the defendants and submitted that the witnesses examined either on behalf of the plaintiffs or on behalf of the defendants cannot be relied upon as they have no special means of knowledge regarding the relationship of the family. He has conceded that the evidence of DWs are also not upto the mark which can be relied upon in support of the defendants ' case on the question of establishing relationship between the parties but according to him the Court below has applied double standard while interpreting evidence of the PWs vis -a -vis DWs. He has further submitted that the alleged marriage took place at the age of 9 1/4 years in the year 1956 and the second marriage was performed in the year 1964. The husband of the plaintiff, namely, Motichand Mahto died in the year 1967 and, as such, it cannot be presumed that the plaintiff begot a daughter in a short span of time. The plaintiff being a minor aged about 14 1/2 years could not have married the Motichand Mahto. Accordingly, he submits that the case requires re -consideration by this Court.