The central legal point established in the judgment is the determination of parentage based on oral and documentary evidence, and the admissibility of additional evidence in a property dispute.

Shailesh Kumar Sinha

1. The appeal is directed against the judgement and decree dated 20th of May 1985 passed by the 3rd Additional Subordinate Judge, Muzuffarpur in Title Suit No. 104 of 1980, whereby the plaintiff's suit for declaration of title over the suit property (Schedule-A) of the plaint stands dismissed, hence the appeal by the plaintiffs. The plaintiff's case in short is that their father Chottelal Sah had two wives, namely Nirsi Devi and Nunuwati. The first wife died issueless sometime in the year 1967. Admittedly, the suit property was purchased by Nirsi Devi, as per the registered sale deed dated 16.07.1923. The papers of the said property was handed over to the plaintiffs sometimes in the year 1967. The name of Nirsi Devi was recorded in the revenue register of the State and the land receipts were being issued is her name. The further case is that the second wife Nunuwati Devi previously married to one Jugeshar Sah of village Dharampur, District -Muzuffarpur and had a son namely, Diplal Sah (Defendant No.1) from Jugeshwar Sah. The said Jugeshwar Sah died when Diplal Sah was aged about 5 years. Nunuwati handed over his son Diplal Sah to his brother and re-married with Chotelal Sah. The plaintiff's further case is that sometimes in the year 1969, Diplal Sah approached the plaintiffs for providing a room in the suit property on payment of monthly rent and as such, a room was rented out to him on the request of Nunuwati. Diplal Sah while living in the room with an ill intention wrongly got his name recorded in the register of the Muzzufarpur Municipality describing him self as son of Chotelal Sah. The plaintiff's appeal against the said recording on being dismissed, the title suit in question was filed. Initially, the suit was filed in the court of Munsif. Later on, on account of pecuniary jurisdiction, the plaint of the suit was returned and as such, the present suit filed. The defendant's case in short is that Nunuwati was never married to Jugeshwar Sah and Diplal sah's is son of Nunuwati from the wed lock of Chotelal Sah. Defendants denied the claim of the plaintiffs that he was tenant in the house in question. The plaintiffs got their name wrongly in the survey khatian as also in the Municiapal Assesment Register and other records. The defendant claimed that he is one of the three sons of Chotelal Sah and as such, such property was rightly sold by his wife Padharia Devi, vide sale deed dated 19.11.1981 in favour of one Sakhichand Ram (Defendant No. 3). Later on, her husband Diplal Sah executed the deed as Ajanama on 23.12.1982.

2. The trial court framed several issues, however, the primary issue was as to whether Nunuwati gave birth to Diplal Sah from the wed lock of Chotelal Sah or the Jugeshwar Sah. The other issue whether the suit is bad for non-rejoinder of Diplal Sah may be the relevant depending on the decision of the parentage of Diplal Sah. The trial court discussing the evidence on the record concluded that the plaintiffs failed to establish that Diplal Sah is a son of Nunuwati from the wed lock of Jugeshwar Sah and not Chotelal Sah and further held that plaintiff also failed to prove that Diplal Sah was residing in the house, as a tenant. The court consequently held that Diplal Sah being son of the Chotelal, as such, the sale deed dated 19.11.1981 executed by his wife in favour of defendant- Sakhi Chand Ram followed by Ajanama dated 23.12.1982 are binding on the plaintiffs. The suit was accordingly, dismissed.

3. Mr. Anil Singh, learned counsel for the appellant submits that the trial court committed serious error in not relying on the evidence of the plaintiffs-witness no. 1, the brother of Nunuwati, who had categorically stated that his sister Nunuwati had married previously to Jugeshwar Sah and had a son, namely Diplal Sah from the wed lock of Jugeshwar Sah. The court below taking an incorrect approach of law that in absence of any persons not being examined from the village of Jugeshwar Sah, t