PARASMAL Vs. BALEHRAJ

JUDGEMENT

(1.) THIS is a second appeal by, the plaintiff Parasmal and his sons and grandson for partition of an ancestral property described as a 'nohra'.

(2.) THE case of the plaintiffs is that the 'nohra' in dispute was the ancestral property of the plaintiffs and the defendants Nos. 1 to 5, 6, 9 and 10 and was in their joint possession. The plaintiffs produced a pedigree table and claimed 1/4th share in the 'nohra' in dispute and prayed for partition by metes and bounds and separate possession of the portion of the 'nohra' falling to their share. The contesting defendants admitted that the disputed 'nohra' was ancestral property of the parties and had not been partitioned so far however, they denied the pedigree set up by the plaintiffs and claimed that the contesting defendants had got 1/7th share each in the property in dispute. The trial court accepted the plaintiffs' contention and held that the plaintiffs had 1/4th share in the disputed property arid passed a preliminary decree for partition, declaring 1 /4th share of the plaintiffs in the disputed 'nohra'.

(3.) IN this second appeal, the main argument of the learned Counsel for the appellants is that the pedigree set up by the plaintiffs should have been held to be proved. The first appellate court has elaborately disputed the matter in question and has given valid reasons for holding that pedigree Ex. 1 has not been proved in accordance with law. In the first instance, the plaintiffs produced pedigree Ex. 2, but when they discovered that the same was incorrect, another pedigree Ex. 1 was produced. The solitary witness, who has tried to prove the pedigree is Parasmal (PW 1). Although he has given elaborate and detailed account about the pedigree of the parties; yet he has not disclosed the source of his knowledge or information as to how he came to know about such long pedigree of his ancestors ascending upto the 28th degree. It is not the case of the plaintiff Parasmal that he had seen Raichand or Ramchand, his ancestors in the 7th or 8th degree, nor he has explained as to how he came to know about Lalchand and his descendants as also about Akey Raj and his descendants. The plaintiff Parasmal should have disclosed his source of knowledge about the ancestors in the 7th or 8th degree, whom had no opportunity of seeing and who were dead long ago. In the pedigree table Ex. 1, Moda Ram does not appear to have any son, but in his statement as PW 1 Parasmal stated that Modaram had two sons, viz. Ganraj and Durjan Mal. In the pedigree Ex. 1 these two persons have been shown as sons of Askaran. However, in his statement as PW 1, plaintiff Parasmal has not stated that Askaran had any son. Thus there is considerable discrepancy between the statement of plaintiff Parasmal PW 1 and the pedigree table Ex. 1. The provisions of Sub -section (5) of Section 32 of the Evidence Act provide that whenever the statement relating to the existence of any relationship by blood, marriage or adoption is in dispute then the statement made by a person ck persons having special means of knowledge regarding the relationship by blood; marriage or adoption of such persons and such a statement would be admissible in evidence. Thus the person making a statement about the existence of any relationship must prove the special means of his knowledge. It is for the person who makes such a statement to disclose that he had any special means of knowledge and it cannot be left to chance or for cross -examination to disclose whether the statement made by such person about relationship by blood, marriage, succession or adoption has any basis, which could give it some value or render it admissible in evidence. As a matter of fact, learned Counsel for the appellants did not seriously contest the finding recorded by the learned Senior Civil Judge and he was unable to point out as to where the first appellate court has gone wrong in deciding the question of admissibility of the pedigree table.