Masammat Champa Bibi & Anr vs Akbar Ali @ Haru Khan & Anr
2023 Latest Caselaw 2336 Cal

05.04.2023
SL No.12
Court No.8
    (gc)


                           FA 5 of 2009

                 Masammat Champa Bibi & Anr.
                              Vs.
                 Akbar Ali @ Haru Khan & Anr.

                                    Mr. Sandip Ghosh,
                                    Mr. Partha Sarkar,
                                                 ...for the Appellants.
                                    Mr. Gopal Chandra Ghosh,
                                               ...for the Respondents.

The appeal is arising out of the judgment and

decree dated 11th July, 2007 in a suit for partition. The

short question that has fallen for consideration is the

relationship of Sadru Khan and Jagu Khan.

The learned Counsel for the parties have referred

extensively to the evidence of the plaintiff and the

defendants. In the plaint, the plaintiff did not say

anything about Momin Khan. However, in his evidence,

the plaintiff at some place said that he is claiming share

in the suit property inheriting the same from his

paternal uncle Hasmat Ali Khan and at other place he

said that he never claimed the suit property by

inheritance from his paternal uncle. In his chief, he has

stated that Jagu is his father and Momin is his

grandfather. However, Jagu and Hasmat were not full

brothers. He has also said that Hasmat was the only

son of his father. P.W.-2 in his deposition stated that

Jagu is the paternal uncle of Joigunnesa Bibi. During

his cross-examination he has stated that Akbar Ali is

the husband of his sister. However, no question was

put to him in cross-examination with regard to the

relationship between Sadru and Jagu. Joigunnesa Bibi

deposed on behalf of the defendants. She, however, in

her cross stated that Sadru was the father of Hasmat,

Jagu was the father of Akbar, Momin was the father of

Jagu and the father's name of Sadru is Momin Khan.

Nawser Ali Khan, a neighbor deposed as D.W.-2. In his

chief, he has stated that Jagu is not the paternal uncle

of Joigunnesa Bibi. However, in his cross-examination

he has stated that he is not aware of the name of the

father of Sadru Khan. It was on the basis of such

evidence, the Trial Court decreed the suit in part

accepting that Jagu Khan is the paternal uncle of the

respondents/appellants. The evidence with regard to

the relationship between Jagu Khan and Hasmat Ali

Khan is the only issue required to be decided as the

share in the properties would depend upon such

relationship. In the event it is contended and held that

Jagu Khan is the paternal uncle of the appellants then

the judgment under appeal is unassailable. In the

background of such evidence, the Court is required to

decide on proper appreciation of the evidence adduced

on behalf of the parties. Admission is the best piece of

evidence.

The learned Counsel for the appellants is unable to

explain the admission made by one of the appellants in

his cross-examination with regard to the relationship

between Jagu Khan and Hasmat Ali Khan. It is true

that the plaintiff in his cross-examination has stated

that Jagu and Hasmat were not full brothers but the

defendants have admitted in the cross-examination that

they are full brothers. The Trial Court accepted the

evidence of the defendants keeping in mind that it is a

suit for partition.

Under such circumstances, we do not find any

reason to interfere with the order passed by the Trial

Court.

The appeal fails.

Accordingly, the appeal being FA 5 of 2009 stands

dismissed.

However, there shall be no order as to costs.

Urgent Photostat certified copy of this order, if

applied for, be given to the parties on usual

undertaking.

(Uday Kumar, J.)                            (Soumen Sen, J.)