A party asserting a claim of legal heirship based on a disputed marriage must provide cogent proof; the failure to examine the mother (if available) and the reliance on self-serving declarations rather than independent records renders the claim unproven, warranting appellate intervention against perverse trial findings.

Cases referred:

1. AIR 1959 SC 914

2. AIR 1980 Allahabad 174

3. AIR 2002 Himachal Pradesh 59

JUDGMENT:

The present Appeal is filed under Section 96 of C.P.C. assailing the Judgment and Decree passed by III Additional District and Sessions Judge, Asifabad, in OS.No.9 of 2016 dated 06.01.2017.

2. Appellant Nos.1 to 3 are the defendants and the respondent is the plaintiff. During pendency of the Appeal, appellant No.1 died and his LRs are brought on record as appellant Nos.4 to 7.

3.1. Learned Senior Counsel for the appellants submits that the learned trial Court failed to see that the suit is filed after 13 years of the death of Godari Beeraiah and no reasons are given by the respondent-plaintiff for such inordinate delay and also failed to see the conduct of the respondent-plaintiff, which is lacking bonafides, and he did not approach the Court with clean hands. Respondent plaintiff did not demand for partition of the properties either when Godari Beeraiah was alive, and there is no evidence to show that Late Beeraiah married Banamma and that the respondent- plaintiff was born out of their wedlock.

3.2. The learned trial Court has misread the evidence of PW.2, who stated that Banamma was brought by Beeraiah only to look after his children and he did not marry her and even as per PW.2, Banamma had 1st husband by name Lasmaiah and thereafter she married Madhunaiah and children are born to her. Respondent plaintiff does not know when his mother married Beeraiah. The evidence adduced by the respondent-plaintiff is against him and some stray sentences are picked up to support the case. The learned trial Court failed to see that there is no birth certificate nor any school record to show the father's name of the respondent plaintiff. Exs.A7 to A17 are the documents issued by various authorities based on the declaration by the plaintiff and there is no document which could establish his claim and placed reliance on the judgment in Dolgobinda Paricha Vs Nimai Charan Misra and Others ¹AIR 1959 SC 914 and prayed to set aside the impugned judgment.

4. Learned counsel for the respondent-plaintiff submits that the learned trial Court has properly appreciated the facts of the case coupled with the evidence led by the parties by taking into consideration Exs.A1 to A23 and rightly decreed the suit by passing a preliminary decree. No interference is called for, in support of his contention he placed reliance on the decisions in the cases of (1) Smt.Aina Devi Vs. Bachan Singh and another²AIR 1980 Allahabad 174, (2) Chitru Devi Vs. Smt. Ram Dei and others ³AIR 2002 Himachal Pradesh 59.

5. Heard learned counsel on record, perused the material.

6. Now the point for consideration is: Whether the impugned judgment passed by the learned III Additional and Sessions Judge, Asifabad in OS.No.9 of 2016, dated 06.01.2017 suffers from any perversity or illegality, if so, does it requires interference of this Court?

7. Respondent-plaintiff has filed suit for partition and separate possession of vacant land against the appellant Nos.1 to 3-defendant Nos.1 to 3 in respect of seven schedule properties in different survey numbers with specific boundaries. It is stated in the plaint that father of the respondent-plaintiff by name Godari Beeraiah was the owner and possessor of lands in Sy.No.463/A admeasuring to an extent of Ac.00-08 guntas; Sy.No.475/A admeasuring to an extent of 9075 Sq. yards; Sy.No. 654/A admeasuring to an extent of Ac.00-06 guntas; Sy.No.658/A admeasuring to an extent of Ac.00-03 ½ guntas; Sy.No.660/A admeasuring to an extent of Ac.00-05 ¾ guntas; Sy.No.663/AA a