JOGESHWAR Vs. SUNDER

JUDGEMENT

(1.) THIS civil second appeal u/s 100 of the CPC arises out of concurrent finding of fact recorded by the lower appellate court of Addl. District Judge, Ramban. Facts giving rise to the appeal are these. The appellant instituted a suit for declaration that his mother Mst. Buban after the death of his father had re -married one Krishan. Out of her 2nd wedlock she gave birth to respondents Sunder and Faqir Chand. After the death of Krishan, his estate developed upon Sunder, Faqir Chand and Mst. Buban in equal shares. Since the appellant is son of Mst. Buban from her first husband, therefore, he was entitled to equal share in the estate of his mother alongwith Sunder and Faqir Chand. The suit was resisted by the legal heirs of Mst. Durgi on the ground that Krishan was married only to Mst. Chuhi and out of this wedlock Mst. Durgi was born. During her life time Mst. Durgi instituted against respondents Sunder and Faqir Chand besides others claiming to be daughters of Krishan out of the wedlock from his wife Mst. Chuhi. This suit was decreed by the court of Sub -Judge, Ramban on 12.3.85 holding her to be the sole heir of Krishan. In this earlier suit one of the issues was whether respondents Sunder and Faqir Chand were the sons of Krishan from his marriage with Mst. Buban. This issue was decided holding that marriage of Mst. Buban with Krishan was not proved. Incidentally appellant had appeared as a witness in the earlier suit on behalf of the respondents Sunder and Faqir Chand. The appeal filed against the judgment of Sub -Judge, Ramban dated 12.3.65 was dismissed by the District Judge, Bhaderwah on 19.6.69. A civil second appeal was dismissed by this court on 3.3.75. Respondents Sunder and Faqir Chand filed LPA No. 1 of 1975. Letters Patent Bench while summarising the facts from the pleadings and judgment returned observed as under: -

(2.) IT is admitted case of the parties that the finding of the trial court that Mst. Buban was never married to Krishan whereas Mst. Chuhi had married his was upheld by the first appellate court in the first appeal as well as second appeal and finally it was also held that Mst. Durgi was born to Mst. Chuhi out of her wedlock with Krishan. It was also found that Mst. Buban gave birth to respondents Sunder and Faqir Chand after the death of her first husband, but their parentage could not be established.

(3.) IT is on the basis of these judgments in the previous suit that the trial court as well as first appellate court dismissed the suit filed by the plaintiff -appellant. This appeal was admitted to hearing for the determination of following substantial questions of law: -