Court ruled that expert testimony must be scrutinized alongside other evidence; familial opinions under Evidence Act are crucial in establishing property claims and resolving disputes surrounding validity of relationships and transactions.

JUDGMENT :

SASHIKANTA MISHRA, J.

This is a plaintiff’s appeal against a confirming judgment. The suit filed by him for declaration of title, confirmation of possession and permanent injunction was dismissed by the trial Court and confirmed by the First Appellate Court.

2. For convenience, the parties are referred to as per their respective status before the trial court.

3. The plaintiff’s case, briefly stated, is as follows:- The suit land originally belonged to one Jogi Nanda, who died leaving behind three sons, namely, Madhu @ Madhusudan, Madhab and Gobinda. Madhu died issueless, Gobinda died without any issue in 1947 and his wife, Radha died in 1955. As such, the suit property came to be exclusively possessed by Madhab. He sold the suit land for legal necessity to the plaintiff, vide R.S.D. No.7464 dated 08.12.1961 and delivered possession. The plaintiff mutated the property in his name in Mutation Case No.5167 of 1989 but said order was reversed in the Court of Appeal as well as Revision. He having approached this Court in O.J.C. No.7045 of 1993, this Court directed that the suit land be recorded in the names of the plaintiff and defendant no.1 subject to their respective rights being decided by any competent forum on the point whether Madhab had any exclusive right to sell the suit land to the plaintiff to the exclusion of defendant no.1. Hence, the suit.

4. Defendant no.1 contested the suit by filing written statement claiming to be the daughter of Gobinda and Radha Dibya. According to her, Madhab had no exclusive interest or right over the property, and therefore, was not competent to sell away the entire suit property to the plaintiff. According to defendant no.1, Gobinda never died in 1947 nor his wife Radha in 1955 rather Radha died in 1971. In 1962 settlement, the authorities published the R.O.R. of the suit property jointly in the names of Madhab and Radha. She, being the sole successor of Gobinda and Radha has half share of the suit property, which was acknowledged by the Revenue Authorities in Mutation Appeal and Revision and also by this Court in O.J.C. No.7045 of 1993. She also took the plea of maintainability of the suit on the ground of non- joinder of the parties of late Madhab.

5. Defendant no.2 filed written statement entirely supporting the case of the plaintiff. He being the son of Madhab, vendor of the plaintiff, stated that the suit land was sold away by his father for legal necessity. Additionally he took the specific plea that defendant no.1 is not the daughter of Gobinda and Radha but of Anand Rath and Ashamani Rath of village-Bageswarpur. As such, she is a stranger to the Nanda family of Ghatikia.

6. Basing on the rival pleadings, the trial Court framed the following issues for determination :-

“1) Is the suit maintainable in the eye of law ?

2) Has the plaintiff any cause of action to bring the suit ?

3) Is the suit bad for non-joinder of necessary parties ?

4) Is the plaintiff entitled for declaration of his right, title and interest over the suit land ?

5) Is the plaintiff entitled for a decree of confirmation of possession ?

6) Is the plaintiff entitled for a decree of permanent injunction against defendant no.1 as prayed for ?

7) To what other relief if any the plaintiff is entitled ?”

7. Be it noted that the suit, after being heard was dismissed on contest by the trial Court by judgment dated 31.07.2002. The plaintiff preferred First Appeal being R.F.A. No.28 of 2002, which was allowed by judgment dated 13.02.2003 remanding the suit to the trial Court for decision afresh after fr