Concurrent findings of lower courts on property rights upheld, with no substantial questions of law arising in appeal.

JUDGMENT

(Delivered on 02.01.2019)

Appellant-plaintiff has filed the present appeal being aggrieved by the judgment and decree dated 24.09.2009 passed by Civil Judge class-I, Narsinghgarh, District Rajgarh and judgment and decree dated 21.1.2012 passed by ADJ, Narsinghgarh by which the civil suit as well as First Appeal both have been dismissed and counter claim of the defendants has been allowed in part.

2. Facts of the case for disposal of this Appeal in short are that plaintiff being the son of Ratanlal filed the suit for the reliefs of declaration and permanent injunction in respect of the suit properties mentioned in para-1 of the plaint. According to the plaintiff, he is the only son of Ratanlal from his first wife-Mathribai. The defendant No.3-Samaribai is not a legally married wife and resulateantly the defendants Nos.1,2,5 and 6 being the sons and daughter of Ratanlal and Samaribai have no share in the property left by Ratanlal.

According to the plaintiff, his mother late Mathribai was legally married wife of late Ratanlal and defendant No.3, Samaribai was already married with one Media 20 years back and there was no divorce between them but she forcefully started living with late Ratanlal and gave birth to defendant Nos.1,2, 5 and 6.

3. After receipt of the summons, the defendant Nos.1 to 3 filed their written statement denying the averments made in the plaint by submitting that defendant No.3 got married with Ratanlal by way of Natra and therefore defendant Nos.1,2, 5 and 6 are legitimate sons and daughters of late Ratanlal. Earlier the plaintiff filed the case before the Tahsildar on the basis of Will dated 26.10.2006. The defendants appeared before the Tahsildar and submitted an objection. Thereafter they filed an application for mutation before the Tahsildar. They also filed a counter claim seeking relief of declaration and permanent injunction against the plaintiff.

4. On the basis of pleadings, learned Civil Judge framed five issues for adjudication. In support of the plaint, plaintiff examined himself as PW-1, Madanlal as PW-2, Mehmood Khan as PW-3 and got exhibited four documents as Ex.P/1 to P/4. In defence as well as in support of the counter claim, defendants examined Rambabu as DW-1, Nannulal as DW-2 and Bhawarlal as PW-3. After appreciating the oral as well the documentary evidence vide judgment dated 24.9.2009 learned Civil Judge has dismissed the suit and partly allowed the counter claim submitted by the defendants and Civil Judge has granted 1/6^th share each to the plaintiff as well as defendants Nos.1 to 3 and declared them co-owner. Being aggrieved by the judgment and decree, the plaintiff preferred First Appeal but same, has also been dismissed vide judgment and decree dated 21.01.2012, hence the present Second Appeal.

5. Appellant has proposed the following three substantial question of law in this Appeal:-

(a) Whether the learned lower Appellate Court was justified in affirming/confirming the judgment and decree passed by the learned trial court which had dismissed the suit filed by the present appellant and partly allowed the counter claim filed by respondent Nos.1 to 3 ?

(b) Whether the learned both the Courts below erred in law in not taking note of para 5 of examination-in-chief of PW-1, Premnarayan which stood unrebutted as neither any cross-examination thereon was done nor anything suggested to him by respondent Nos.1 to 3 ?

(c) whether an adverse inference was required to be drawn against respondent Nos.1 to 3 as they wilfully admitted to get examined Samaribai, respondent No.1 (a material witness), thus the courts below erred in law in