Jharkhand High Court
Smt. Dulari Devi vs Jialal Bhandari on 30 June, 2021
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No. 205 of 2013
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1. Smt. Dulari Devi
2. Smt. Asha Devi
3. Dumarlal Bhandari ... ... Appellants
-versus-
1. Jialal Bhandari
2. Hiralal Bhandari
3. Smt. Neera Devi
4. Smt. Ambika Devi ... ... Respondents
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CORAM : HON'BLE MR. JUSTICE ANANDA SEN
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For the Appellants : Mr. Onkar Nath Tiwari, Advocate
For the Respondents :
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ORDER
RESERVED ON 18.03.2021 PRONOUNCED ON 30.06.2021
09/30.06.2021 This appeal is filed under Section 100 of the Code of Civil
Procedure by the appellants, who were initially the defendants-1st party.
2. A suit for declaration of right, title and interest of the
plaintiffs (respondents herein) was filed. They prayed for a declaration
on the ground that the plaintiffs are sole heirs of Raghunath Bhandari
and they acquired absolute right, title upon the suit property and are in
exclusive possession over the same. A further prayer was made that the
defendants (appellants herein) are not the heirs of Raghunath Bhandari
and have no right, title and interest.
3. It was the case of the plaintiffs that the parties are governed
by Mitakshara School of Hindu Law and the disputed properties belong
to one Hari Chand Bhandari. Hari Chand Bhandari died some time in the
year 1934, leaving behind his only son Raghunath Bhandari. Raghunath
Bhandari died in the year 1953 and his widow died in 1955. They had
three sons, namely, Jialal Bhandari, Hiralal Bhandari and Yugal
Bhandari and one daughter, namely, Jibani Devi. It is the case of the
plaintiffs that Yugal Bhandari died issueless, leaving behind his widow
Shanti Devi. As Shanti Devi was of young age at the time of death of
Yugal Bhandari, as per the social customs, she married Motilal
Bhandari. After the said marriage, she was blessed with two daughters,
namely, Dulari Devi, Asha Devi and three sons, namely, Ram Chandra
Thakur, Lakshman Thakur and Bishnu Thakur. Dulari Devi and Asha
Devi happen to be the appellants of this appeal, who were the
defendants before the Trial Court. It is the case of the plaintiffs that
Jibani Devi, i.e., daughter of Raghunath Bhandari died in 1985 leaving
behind her son and in that view, plaintiffs have inherited the property
belonging to Raghunath Bhandari being sons of Raghunath Bhandari. It
is their case that the defendants-1st party (appellants herein) were not
the daughters of Yugal Bhandari, rather were the daughters of Motilal
Bhandari, thus, they did not acquire any right, title interest over the
properties.
4. Defendants-1st party appeared and they denied year of
death of Raghunath Bhandari and first wife and as per them, Raghunath
Bhandari died in 1961. According to them Raghunath Bhandari died
leaving behind Yugal Bhandari, Hiralal Bhandari, Jialal Bhandari,
Gobardhan Bhandari, Parasnath Bhandari and daughter, namely, Jibani
Devi. As per them, Govardhan Bhandari and Parasnath Bhandari died
issue less. In the year 1968, Yugal Bhandari died leaving behind the
said defendants, i.e., the appellants. These appellants showed
ignorance of the alleged fact that the widow of Yugal Bhandari married
with Motilal Bhandari and out of the said marriage, they had daughters
and son. They submitted that final parcha was being published and thus,
no cause of action arose. It is their case that they are the daughters of
Yugal Bhandari.
5. On the basis of these pleadings of the parties, seven issues
were framed. Issues No.3 and 4 are of utmost importance, which are as
follows: -
3. Have the plaintiffs valid exclusive right, title interest
upon the suit land?
4. Are the defendants legal heirs of Raghunath
Bhandari and holds valid right, title, interest upon
the suit land?
6. Parties led evidence. On the basis of the evidence, the Trial
Court came to a conclusion that the plaintiffs did not have exclusive
right, title, interest over the suit land in exclusion of the defendants. It is
also held that the defendants-1st party (appellants herein) and second
party are legal heirs of Raghunath Bhandari and have inherited the
property. The suit was, thus, dismissed.
7. Challenging the aforesaid findings, title appeal bearing Title
Appeal No.30 of 2010 was filed under Section 96 of the Code of Civil
Procedure. The Principal District Judge heard the matter and decided
that the appellants herein, i.e., the defendants-1st party are not the
daughters of Yugal Bhandari and, thus, have not inherited the property
in question. The appeal was allowed as the Appellate Court held that it
is the plaintiffs, who are the owners of the property and the appellants
herein, i.e., Dulari Devi and Asha Devi are not the daughters of Yugal
Bhandari.
8. Assailing the aforesaid findings, this second appeal has
been preferred by the original defendants-1st party.
9. I have heard the counsel for the appellants at this stage of
admission itself. Counsel for the appellants submits that the First
Appellate Court committed serious error of law while reversing the
judgment. He submits that reasoning of the Trial Court have not met
with while upsetting the judgment and without meeting the reasonings of
the Trial Court, the judgment of the Appellate Court is bad in law. He
submits that the judgment of the First Appellate Court is vitiated in terms
of Order XLI Rule 31 of the Code of Civil Procedure as the Appellate
Court has not framed any issue. He further submitted that the findings of
the Appellate Court is perverse and contrary to the plaintiffs' witnesses.
He submits that there is perversity in the judgment and in that view, in
view of the judgment reported in (2019) 8 SCC 637 [State of Rajasthan
& Others versus Shiv Dayal & Another], the second appeal is liable to
be allowed. He submits that in view of the aforesaid decision, this
appeal needs to be allowed.
10. After going through the records and contentious issues
between the parties, I find that the issue, which is pivotal to this case is
whether the appellants herein are legal heirs of Yugal Bhandari. If this
issue is answered in favour of the appellants, the appellants can
succeed, otherwise not. Merely getting their name recorded in the
surveyor records will not make these appellants as title holder of the
property. They can become title holder of the property only if they are
legal heirs of Yugal Bhandari. The Trial Court held that these appellants
are legal heirs of Yugal Bhandari, whereas the First Appellate Court has
held that these appellants are not the legal heirs of Yugal Bhandari.
Both the Courts have gone through the evidence led by the parties and
have arrived at an independent conclusion. The question, as to whether
the appellants are legal heirs of Yugal Bhandari or not is an absolute
question of fact. It is the case of the appellants that the First Appellate
Court has not framed this issue, which is a question of law and should
have been answered in favour of the appellants. When I go through the
Appellate Court judgment, I find that that admittedly the issue was not
framed, but the Appellate Court has discussed the evidence and has
taken into consideration the evidence led by the parties on the aforesaid
point. The argument of the parties were also heard, which addressed
this issue and after considering these, the First Appellate Court came to
an independent finding that these appellants are not the legal heirs of
Yugal Bhandari. The parties, including the appellants before the First
Appellate Court, were aware of the actual point, which was to be
addressed before the First Appellate Court, and they did so. Their
arguments before the Trial Court was on the point as to whether these
appellants were the legal heirs of Yugal Bhandari or not. Thus, this
Court feels that specifically not framing the same issue by the Appellate
Court cannot be said to be such a grave illegality, which will go to the
root of the case when the parties addressed and argued before the
Court on the said point to their satisfaction.
11. As observed earlier, only if the appellants succeed in
establishing the fact that they are the legal heirs of Yugal Bhandari, they
can succeed in this case, otherwise not. From the facts of this case, I
find that it is an admitted case that the land belong to Raghunath
Bhandari and Raghunath Bhandari had sons and a daughter. There is a
dispute between the parties in respect of number of sons, but, both the
parties admitted that Yugal Bhandari is the son of Raghunath Bhandari.
The appellants claim through Yugal Bhandari, claiming themselves to be
his daughters. Thus, it is immaterial as to how many sons Raghunath
Bhandari had. It is the case of the plaintiffs that the widow of Yugal
Bhandari remarried with Motilal Bhandari and these two daughters, who
are the appellants herein, are daughters of Motilal Bhandari and not
Yugal Bhandari, whereas the appellants claim that they are the
daughters of Yugal Bhandari. Be it noted that on behalf of the
defendants-1st party (appellants herein), only one witness was
examined, i.e., Dulari Devi. No other oral witnesses were produced by
the defendants. The Appellate Court reappraised the evidence and
found that these two appellants are not the daughters of Yugal
Bhandari. The appellants heavily relied upon the one line admission of
the plaintiffs as P.W.1 wherein he has stated that these two appellants
are daughters of Yugal Bhandari, but, why the Court discussed that one
line taking into consideration the entire evidence of P.W.1 and the other
Plaintiff Witnesses has been discussed in detail in paragraph 11. In the
said paragraph 11 of the judgment, the Court has observed that in
examination-in-chief, this witness has stated that the widow of Yugal
Bhandari was young and remarried Motilal Bhandari and from the
second marriage, two daughters (appellants) and three sons were born.
To verify the aforesaid fact, I had asked the appellants to provide this
Court a copy of the said deposition. After going through the said
deposition, I find that in paragraph 3, he has categorically stated that
these two appellants are not the daughters of Yugal Bhandari, rather
daughter of widow of Yugal Bhandari and Motilal Bhandari. As per the
judgment of the First Appellate Court, similar deposition was also made
by the other plaintiff's witnesses. The First Appellate Court also found
that in paragraphs 7, 8 and 9 of the cross-examination, this witness has
supported the pleadings and denied the fact that these two appellants
are daughters of Yugal Bhandari. I have also gone through the evidence
and in paragraph 10, he has categorically stated that it is not correct to
say that these appellants are daughters of Yugal Bhandari. The First
Appellate Court found that after giving those statement, his cross
examination was deferred at the behest of the defendants, which
resumed on the next date fixed and on the next date in paragraph 22,
this witness has stated that one line admission. Thus, the Appellate
Court took into consideration the entire evidence led by the plaintiffs and
concluded that this one line admission, which has absolutely no
coherence with other statements of P.W.1 and also not in consonance
with other plaintiff witnesses cannot be taken into consideration. It is well
settled that the evidence has to be considered in totality and the Court
cannot consider one or two statement which is not coherent. Further, I
find that the First Appellate Court discussed the evidence of D.W.1, who
is the appellant herein and found that there was no corroborative
evidence of this D.W. and this appellant in her deposition has never
denied specific allegation that Shanti Devi was remarried to Motilal
Bhandari after demise of Yugal Bhandari, rather she has simply pleaded
that she has no knowledge of the same on the ground of her minority.
The First Appellate Court, after weighing the evidence, found that the
evidence of the plaintiffs are much reliable. Further, the First Appellate
Court found that the entries in the records are in the name of the plaintiff
and second defendants and some entries are recorded in the name of
the plaintiffs only, which suggests that the stand taken by the plaintiffs is
correct. The First Appellate Court, after taking into consideration all
these facts, has held that these appellants are not daughters of Yugal
Bhandari.
12. The aforesaid findings are based on evidence, which has
been reappraised by the First Appellate Court and is a finding of fact.
This Court is of the opinion that no point of law is involved in this case.
Further, so far as the point of law, which the appellants have raised in
respect of non-framing of the issues by the First Appellate Court, is
concerned, this Court is of the view that even if for the sake of argument
if it is said to be a law point and the same is answered in favour of the
appellants, the merits of the case will not change as the findings of facts
has been finally concluded that these two appellants are not the
daughters of Yugal Bhandari. Further the appellants herein knew the
issue and argued their case.
13. It is well settled proposition of law that in absence of
substantial question of law, a second appeal cannot be admitted. The
judgment cited by the appellants is not applicable to the facts of this
case. I find that there is no substantial question of law involved in this
second appeal as the entire case revolves around a fact and this Court
is also of the view that no fault can be found with the judgment of the
First Appellate Court. Since it has been held that the appellants are not
the daughters of Yugal Bhandari, they are not entitled to get any relief.
Thus, this appeal is not fit to be admitted in absence of any question of
law involved for consideration. This appeal is, accordingly, dismissed.
(Ananda Sen, J.)
Kumar/Cp-02
