AI Structured Summary
Not yet generated for this judgment
Judgment
A.K. Parichha, J.—This appeal arises out of the judgment and decree passed by the learned Sub-ordinate Judge, Jajpur in a suit for partition bearing Title Suit No. 117 of 1981.
Sk. Abdulla Ahad was owner of the suit property and he died leaving behind 3 sons, namely Sk. Amzad Ali (D-1), Sk. Md. Hosain (D.2) and Sk. Masaleuddin and a daughter Jaibun Nisha Bibi (Plaintiff-1). Defendant No. 3 is the widow of Sk. Masaleuddin and Plaintiff No. 2 is the son of Plaintiff No. 1. The Plaintiff No. 1 claimed that she has a share in the property of her late father Sk. Abdulla Ahad and is also in possession of a portion of such property with her son, but Defendants are not acceding to their demands for partition. Accordingly, she prayed for petition of the property of her father noted in the suit schedules claiming a share therein. The Plaintiffs also took a specific stand that Defendant No. 4 is not the natural son of Masaleuddin and Defendant No. 3 and that he was only brought up by that couple out of affection. Defendants 1 and 2 supported the claim of the Plaintiffs. Defendants 3 and 4, however, contested the suit. In their written statement while denying the claim of the Plaintiffs they pleaded inter alia that Plaintiff No. 1 is not the daughter of Sk. Abdulla Ahad, but was the daughter of one Sairuddin, who was the brother of Abdulla Ahad and therefore, she has no claim over the properties of Abdulla Ahad. They also took a stand that the properties of Sairuddin was also purchased by the sons of Abulla Ahad and therefore, she has got no right or claim over plot Nos. 1059, 1060, and 1090. About the parentage of Defendant No. 4 it was specifically claimed that Defendant 4 is the natural son of Masaleuddin and Defendant No. 3. From the pleadings, learned trial Court framed the following issues and called upon the parties to adduce evidence.
Issues:
(i) Is the suit maintainable?
(ii) Whether the Plaintiffs are entitled to get 1/7th share in the suit property?
(iii) Are the Plaintiffs entitled to get the specific allotment and possession thereof?
(iv) To what relief/reliefs the Plaintiffs are entitled?
witnesses were examined by the Plaintiffs, Plaintiff No. 1 being P.W.1 and Plaintiff No. 12 being P.W.2. Defendants 3 and 4 also examined 5 witnesses Defendant No. 3 being D.W.1, Defendant No. 4 being D.W.2. Both parties produced documents which were marked as Exts.1 and 8 and A to Z respectively. On consideration of these evidences learned trial Judge came to the conclusion that Plaintiff No. 1 is the daughter of Abdulla Ahad and is entitled to a share in the property of her father. He also concluded that Defendant No. 4 is the natural born son of Masaleuddin and Defendant No. 3. In the result, therefore, he decreed the suit for partition allotting Plaintiff No. 1 1/7th share in the suit schedule lot No. 1 with a stipulation that she would get that share excepting Ac. 0.15 decimals from plot No. 1059, Ac. 0.03 from plot No. 1080 and plot No. 1060 and Ac. 0.12 dec. from plot No. 1090 and also ruled that Plaintiff No. 2 shall get the lands gifted to him under Ext.1 from out of the 1/7th share of Plaintiff No. 1. Simultaneously learned trial Judge allotted Defendants 1 and 2 1/3rd share each in the suit schedule properties and Defendants 3 and 4 together 1/3rd share in the said property. The Plaintiff has now filed this appeal challenging the findings of the trial Court that Defendant No. 4 is the son of Masaleuddin and Defendant No. 3.
Learned Counsel for the Appellants attacks the finding of the trial Court on the issue of parent-hood of Defendant No. 4 basically on the ground that learned trial Judge did not properly asses the weight of the evidence given by P.Ws.1 and 3 who are members of the family and had special knowledge about the relationship. He placed relevant portions of the statement of these witnesses to substantiate his argument.
Learned Counsel for the Respondents on the other hand challenges the maintainability of this appeal on the ground that the decree being in favour of the Plaintiff-Appellants, they are not entitled to file appeal challenging finding on a particular issue which did not go in their favour. He also contends that the Plaintiffs took the stand that Defendant No. 4 is not the natural son of Masaleuddin and Defendant No. 3 and so burden was on their shoulder to prove through cogent evidence that Defendant No. 4 is not the natural son of Masaleuddin and his wife. He indicates that the Plaintiffs failed to discharge such burden as there is virtually no evidence except the simple assertion of P.W.1 in this regard. Learned Counsel further points out the statements of D.Ws.1, 2, 4 and 5 and documents Exts. D to K to support the claim that Defendant No. 4 is natural son of Masaleuddin and Defendant No. 3.
Section 96 of the CPC expressly provides that an appeal shall lie from every decree passed by any Court exercising the original jurisdiction. So a decree passed by the original Court only can be challenged in appeal. The question is whether a party in whose favour decree has been passed can file an appeal challenging a finding on a particular issue which has gone against him. In the case of Budh Sen Vs. Sheel Chandra Agarwal and Others, Division Bench opined that CPC does not contemplate an appeal against a mere finding in the absence of any challenge to the decree passed. The same view was endorsed by Patna High Court in the case of Banarsi Sah and Others Vs. Bhagwanlal Sah and Others, . A close reading of Section 96 of the CPC also reveals that unless the decree is under challenge appeal is not maintainable. Once a party is not aggrieved with the decree, he cannot maintain an appeal challenging a mere finding of a particular aspect involved in the suit. In the present case the Plaintiffs asked for a share in the suit schedule properties and a decree was passed in their favour granting a share. They are now aggrieved with the finding of the trial Court on the issue of parent-hood of Defendant No. 4 which finding does not prejudicially affect them so far as the issue of partition and allotment of their share is concerned. Therefore, the present appeal challenging the mere finding that Defendant No. 4 is the natural son of Masaleuddin and Defendant No. 3 is not maintainable. Be that as it may, when the appeal has been admitted and has been heard, it would be proper to answer the other contention raised by the Appellants.
The Plaintiff-Appellants took a specific stand that Defendant No. 4 is not the natural son of Masaleuddin and Defendant No. 3, but he is actually a son of one Mamtaz Ali Khan and that he was kept as adopted son by Masaleuddin and Defendant No. 3 although Muslim law does not recognize adoption. Since this was the claim of the Plaintiff in the pleading, the onus was on them to prove this aspect by positive evidence. In this regard Plaintiff No. 1 as P.W.1 simply stated that Defendant No. 4 is not the son of Masaleuddin and Defendant No. 3, but is the son of Mamtaz Ali Khan. She admitted that Defendant No. 4 was all along staying with Masaleuddin and Defendant No. 3. P.W.2, who is the son of P.W.1 also gave statement that Defendant No. 4 is the son of Mamtaz Ali Khan, but did not indicate any fact or circumstances or any specific knowledge to support his version. In fact in paragraph 6 of his cross-examination he could not say much about the family and the family members of Mamtaz Ali Khan. Defendants 1 as D.W.3 supported the claim of the Plaintiff and stated that Defendant No. 4 is the son of Mamtaz Ali Khan, but in paragraph 10 of his statement he also could not say much about the family or affairs of the family of Mamtaz Alli Khan and how he knew that Defendant No. 4 was the son of Mamtaz Alli Khan and under what circumstances he was given on adoption. As against such vague evidence from the side of the Plaintiffs, Defendant No. 3 as D.W.1 clearly said that Defendant No. 4 is her natural born son through Masaleuddin. She categorically stated that four years after her marriage they were blessed with a daughter, four years after thereafter were blessed with Defendant No. 4 and further 3 years after they were blessed with Anr. daughter. She clearly denied the claim of the Plaintiffs that she and Masaleuddin were issuless. Defendant No. 4 as D.W.2 also stated that he is the natural son of Masaleuddin and Defendant No. 3 and that he was remaining all along with them, pursuing his studies and on the death of Masaleuddin he got the job of Masaleuddin on rehabilitation basis. He produced the School Leaving Certificate Ext.D issued and signed by the Headmaster of the M.S. High School, Ext.E, the National Trade Certificate granted by Principal of I.T.I., Rourkela, Ext.F - the Medical Card issued in his favour by the Steel Plant authority, Exts.G and H- the certificates issued in his favour for Rastrabhassa Prarmbhika Parikhya and Rastrabhassa Prabesh Parikhya, Ext.J- Kabilnama prepared at the time of his marriage; Ext.K- the extract of the Marriage Register issued in his favour. In all these documents Defendant No. 4 has been described as the son of Masaleuddin. D.W.2 also stated that on the death of Masaleuddin he performed the obsequies ceremony and as the son he was given the job of his late father. D.Ws.4 and 5 proved the marriage documents and stated that in all these functions Masaleuddin acted as the father of Defendant No. 4.
From the side of the Plaintiffs there was nothing but the omnibus statement of the Plaintiffs and Defendant No. 1. No document of birth or adoption was produced by them to show that Defendant No. 4 was the son of Mamtaz Ali Khan and he was subsequently adopted by Masaluddin and Defendant No. 3. On the other hand, Defendants 3 and 4 produced voluminous documents and statements of independent witnesses to support their claim that Defendant No. 4 is the natural son of Masaleuddin and Defendant No. 3. So learned trial judge rightly observed that by preponderance of probabilities the plea of Defendant Nos. 3 and 4 that Defendant No. 4 is the natural son of Masaleuddin and Defendant No. 3 is acceptable.
For the aforesaid reasons, the appeal is found to be without any substance and is dismissed on contest, but in the peculiar circumstances without any cost.