Magan Devi and Others vs Soma Oraon and Another

Narendra Nath Tiwari, J.—The appellant was the defendant No. 2.

This second appeal has been preferred against the judgment and decree of the affirmance passed by learned 7th Additional Judicial Commissioner, Ranchi in Title Appeal No. 58 of 1999.

The plaintiff/respondent No. 2 had filed suit, being Title Suit No. 175 of 1996, claiming 1/3rd share in Schedule ''A'' property of the suit. According to the plaintiffs case, the suit property is ancestral and the plaintiff being the co-sharer has got 1/3rd share. The defendant No. 1 is father and defendant No. 2 is brother. He claimed that the suit property was still joint and that the defendant No. 2 was causing disturbance in enjoying the joint property.

The suit was contested by the respondents, stating, inter alia, that the suit, In the garb, is for declaration of title and confirmation of possession. The plaintiff is KATHBETA i.e. son from previous husband of the wife of the defendant No. 1. The plaintiff has got executed a deed of gift dated 15th May, 1990 by practicing fraud on the defendant No. 1. The said deed of gift is Illegal and inoperative.

In view of the said pleadings of the parties, issues were framed by the learned Court below. Both the parties led their evidences, oral as well as documentary.

Learned trial Court, after thorough discussion and consideration of the evidence recorded his finding and held, inter alia, that the plaintiff is the son of defendant No. 1 and the defendant No. 2 is the brother of the plaintiff. Learned Court found that the defendant No. 2 had himself admitted that the plaintiff is the brother. He further found that there was no defect in the suit and the plaintiff was entitled for the reliefs prayed for. The learned trial Court, thus, decreed the suit.

Aggrieved by the said judgment and decree of the trial Court, the defendant had preferred appeal, being Title Appeal No. 58 of 1999. The said appeal was heard and finally decided by the impugned judgment dated 20th August, 2002 by 7th Additional Judicial Commissioner, Ranchi, unholding the finding of the trial Court.

Learned lower appellate Court has also independently discussed all the facts, evidences and materials on record in detail and came to the conclusion that there was no infirmity and illegality in the impugned Judgment and decree of the trial Court. Learned appellate Court also concurred and concluded that the plaintiff is the son of Soma Oraon and he is entitled to get share in the property and is entitled for the relief prayed for in the plaint. Learned lower appellate Court thus, affirmed the finding as well as judgment and decree of the learned trial Court and dismissed the appeal.

In this second appeal, the only ground urged by Mr. Manjul Prasad, learned Senior Counsel, appearing on behalf of the appellants, is that learned Courts below have failed to properly appraise and appreciate the evidences on record, particularly, the contradictory evidence of defendant No. 1. The defendant No. 1, as DW-1, at one place stated that the plaintiff was not his son, but his later statement that the plaintiff is his son has been accepted. Learned Counsel submitted that the learned Courts below have not considered the evidences in detail and have picked up sentences of the evidence from here and there to hold against the defendant No. 1. On that basis, the suit has been erroneously decreed.

After hearing learned Counsel for the parties and meticulously going through the Judgments of the learned Courts below. I find that learned Courts below have discussed the evidences in detail and have recorded their findings on the basis of oral as well as documentary evidences and have come to the conclusion that the plaintiff is the son of Soma Oraon. Learned lower appellate Court has also independently appraised the evidences both oral as well as documentary and concurrently found that the plaintiff is the son of Soma Oraon and he is entitled to get share in the properly and upheld the Judgment and decree of the learned trial Court.

Learned Counsel for the appellant could not convince this Court that there Is any error of record in discussing and relying upon the evidences of the parties. Concurrent findings of fact even erroneous cannot be disturbed by this Court, as the same do not give rise to substantial question of law, which is sine qua rvon for exercise of power of this Court u/s 100. CPC.

I, therefore, find no ground in this second appeal, which is, accordingly, dismissed.