The court emphasized the importance of evidence and the settled principles of law in determining inheritance disputes.

JUDGMENT :

Heard the parties.

2. This appeal has been filed by the appellants under Section 100 of the Code of Civil Procedure against the concurrent Judgment and decree dated 28.06.2007 passed by the 5th Additional District Judge (F.T.C.), Jamtara in Title Appeal No.12 of 2006/09 of 2005 whereby and whereunder, the learned first appellate court has dismissed the appeal and confirmed the judgment and decree passed by the Sub-Judge-III, Jamtara in Title (Partition) Suit No.20 of 1994 dated 12.01.2005 whereby and whereunder the learned trial court decreed the suit on contest with costs and held that the plaintiffs have jointly entitled to 1/3rd share in Scheduled A and 1/6th share in Scheduled B land and also ordered the pleader commissioner be appointed to carve out the shares and decree be prepared accordingly.

3. The brief facts of the case is that the appellant-plaintiffs and the respondents-defendants are the descendants of the common ancestor Makhan Gope who died leaving behind his three sons namely Kalipado, Pasupati and Dasrath. The appellant-plaintiffs are the descendants of the branch of Kalipado and the respondents-defendants are the descendants of the branch of Dasrath. It is the case of the appellant-plaintiffs that Pasupati predeceased Kalipado so the properties of Pasupati devolved equally to Kalipado and Dasrath. Hence, the appellant-plaintiffs are entitled to share of the Kalipado as well as half of the share of Pasupati whereas it is the case of the resepondents-defendants that Pasupati died after the death of Kalipado hence, Kalipado is not entitled to inherit the property of Pasupati and only the branch of Dasrath Ghosh can inherit the property of Pasupati.

4. The trial court keeping in view the oral evidence as well as the documentary evidence particularly the Ext. A/1 which is the voter list of the year 1983 in which the name of Pasupati Ghosh and Dasrath Ghosh was appearing but the name of Kalipado Ghosh was not appearing came to the conclusion that Pasupati died after Kalipado and taking into consideration that in the Schedule under Section 8 of the Hindu Succession Act, 1956 as ‘brother’ comes under Class-II (II) and ‘brother’s son’ come under Class-II (IV), so the learned trial court came to the conclusion that Dasrath inherited the properties of Pasupati but Kalipado did not inherit the properties of Pasupati and decreed the suit by giving 1/3rd share of Schedule A land which was exclusive property of Makhan Gope and 1/6th of Schedule B land which was a joint property of Makhan Gope and Bhikhu Gope.

5. Being aggrieved by the said judgment and decree passed by the learned trial court, the appellant-plaintiffs filed Title Appeal No.09 of 2005 which was later on numbered as 12 of 2006 by District Judge, Jamtara which was ultimately heard and disposed of by the learned first appellate court by the impugned judgment and decree.

6. Learned first appellate court framed the following two point of determination in the appeal :-

(i) Whether without framing an issue as to who died first Pasupati or Kalipado, finding given on this point by the learned court below is sustainable or not, and whether it has caused any prejudice to appellants?

(ii) Whether the finding that Kalipado predeceased Pasupati, given by the learned court below is correct or not?

7. Learned first appellate court made independent appreciation of evidence in the record and considered the settled principle of law that when prejudice is not caused to the parties who were knowing the issue in question full well and have led ample evidence in respect of the issue in question; by deciding the issue which was not specifically framed, it would not be proper for the appellate court to set aside the decree and also considered that though no specific issue was framed on this point but in paragraph nos.8 and 9 of the judgment of the trial court, the learned trial court has discussed the rival contention in the matter and has given a finding. The first appell