Patna High Court
Janki Kahar Alias Jan Ram vs Bideshi Ram And Ors. on 27 February, 1991
Equivalent citations: 1991(1)BLJR720
JUDGMENT Bhuvaneshwar Prasad, J.
1. The original sole plaintiff Janki Kahar alias Jan Ram was the appellant. During the pendency of this appeal he has died and his heirs have been substituted. In the suit, the case of the original plaintiff was that one Jhatu Kahar was the common ancestor of the parties. Ramnandan Kahar was his son. The land as given at the foot of the plaint stood recorded in the name of Ramnandan Kahar in the cadastral survey Khatian. Ramhandan Kahar, the common ancestor had four sons. The genealogical table has been given in paragraph No. 2 of the plaint, according to which Ramnandan Kahar had four sons, namely, Janki Kahar alias Jan Ram, Bechu Kahar, (Supre) alias Supu Ram and Bideshi Ram. Janki Ram is the plaintiff-appellant. Defendent No. 2 Most. Gul Bux is the widow of the deceased Bschu Kahar. Similarly, defendant No. 3 Man Mati is the widow of Supu Ram. Bideshi Ram is defendant No. 1. Defendant Nos. 4 to 6 are the sons of defendant No. 2. Defendant No. 7 is the son of Defendant No. 3 and defendant Nos. 8 to 10 are her daughters.
2. After the death of Ramnandan Kahar, all his four sons came in possession of the properties left behind by him. Since then they and their heirs are in joint cultivating possession of the land of Ramnandan Kahar, Bechu Kahar, one of the sons died about 10 years age leaving behind his widow (defendant No. 2) and three sons (defendant Nos. 4 to 6). Similarly, Supu Ram another son of Ramnandan Kahar died in the year 1970-71 leaving behind defendant No. 3 and his only son Krishna Ram defendant No. 7. He also left behind three daughters who are defendant Nos. 8 to 10. After the death of the two sons of Ramnandan Kahar, their descendants along with plaintiff and defendant No. 1 are coming in joint possession of the suit land, but the plaintiff and the defendants are living separately in mess and cultivation. Due to the old age the plaintiff who was the karta of the joint family had given up to discharges his futction as the karta and asked defendant No. 1 Bideshi Ram to manage the entire affairs of the joint family. Since then defendant No. 1 is the karta of the joint family. The parties are joint in cultivation, but separate in mess and business. The parties are cultivating the lands according to convenience and choice and these has been no partition by metes and bounds amongst the descendants of Ramnandan Kahar. The plaintiff has got separate cultivation over plot Nos. 13, 87, 111 and 113, out of the suit land over which he had spent huge amount of money. As such he is entitled to retain the same. In his the share left behind by his father. On these grounds the plaintiff-appellant claimed for the partition of the joint family properties.
3. The defendants have filed a written statement in which it has been contended that the plaintiff is not the son of Ramnandan Kahar. As a matter of fact, he is not even Kahar by caste. He has got no right, title, possession or interest over any portion of the suit land which is in conclusive possession of the defendants. The genealogical table given in the plaint is false. It is true that the plaintiff is the brother of defendant No. 1, though the same uterine blood, but through different fathers. As a matter of fact, one Sudan Ram a Kahar by casts was a resident of village Murmasi. He had a daughter named Jiwasia Kaharin. She was married to one Mutur Ram of the same village. Mutur Ram finding her unchastity divorced Jiwasia Kahar in about 65 years ago. Jiwasia came back to her father's place and strated living with him at Murmusi. In course of time, she developed intimacy with one Kali Sao of village Lesiganj. This was not approved by the elders of the village who pressed Sudan Kahar to marry Jiwasia, Accordingly, Jiwasia was married to one Gopi Ram of Laxi Patra in Sagai form. She went to live with her new husband Gopi, but was immediately divorced as she was pregnant from before apparently through Kali Sah. She was, therefore, brought back to Murmusi by Gopi Ram and left with her father Sudan Ram. A son was later on born to Jibasia who is known as Janki Ram alias Jan Ram, the plaintiff-appellant.
4. Ramnandan Kahar of village Murmusi was married with one Most. Neauri, but he could have only two daughters through her. He expressed his desire to marry again on which the seniors of the village and Sudan Ram pressed him to marry Jibasia. Firstly Ramnandan Kahar was relectant to marry Jibasia because of her uncheste left. In any view of the matter, he finally agreed to marry her on the condition that he will not take her illegitimate son (Janki Kahar alias Jan Ram) in his household and that the entire family of Sudan Ram and Jibasia will perform Praschit. At that time the present plaintiff-appellant Janki Kahar was about 10 to 12 years of age. He was asked to remain at the place of his Nana, Sadu Kahar. After the marriage Jibasia alone shifted to the house of her husband. Later on Ramnandan Kahar allowed the plaintiff Janki Kahar to live in his house and agreed to appoint him as his plough-men.
5. After this marriage, with Jibasia Ramnandan Kahar was pleased with a son Bechu Kahar, the husband of defendant No. 2 through his first wife Most. Nebari, Thereafter, two sons namely, Supan alias Supu Kahar and Bideshi Kahar (defendant No. 1) were born to Jibasia through Ramnandan Kahar. Ramnandan Kahar was possessed of certain lands in village-Murmusi and Ramnandan Dabra and had thika dowami in village Buxi Dabra. Till his life time Ramnandan Kahar looked after his properties and on his death, his eldest son Bechu looked after the same. In the meantime, the present plaintiff appellant started to earn his livelihood through sale and purchase of cattle. In the return submitted by the sons of Ramnandan Kahar, the name of the plaintiff-appellant was not mentioned. Even the interim compensation was not paid to the plaintiff-appellant.
6. After the death of Sudan Kahar, and his step-son Khudu Kahar, Raghunath Kahar the grand son of Sudan Kahar wanted to sell part of the ancestral land. Supan Ram, defendant No. 1 agreed to purchase the same. Raghunath Kahar, however, wanted a part of this land to be given to Janki Ram (Plaintiff) who was at that time living with him. It was, accordingly, agreed that all the three uterine brothers, namely, plaintiff, Supan Ram and defendant No. 1 Bideshi Ram would jointly purchase the land from Raghunath Kahar. This work was entrusted to the present plaintiff-appellant. Recently, however, the defendants came to learn that in this sale-deed (Ext. 2) the plaintiff-appellant wrongly described himself as the son of Raghunandan Kahar. Also the name of defendant No. 1 was not mentioned in this document and in place of Supan Ram the name of his son Krishna Ram (defendant No. 7) figured. This led to certain differences, as a result of which, this suit has been filed. It would be false to say that the plaintiff, Janki Ram ever acted as karta of the joint family. On the death of Ramnandan Kahar, his eldest son Bechu Kahar acted as the karta. At present defendant No. 1 is the karta of the joint family. It would be false to say that it was the plaintiff-appall in who had nominated defendant No. 1 as the karta of the joint family. On these grounds amongst others, it was contended that the suit be dismissed.
7. The learned trial court framed a number of issues. Issue No. 3 was "is the plaintiff the Son of Ramnandan Kahar?" This issue was answered against the plaintiff and the suit was dismissed on contest with cost. It is against this judgment and decree that the present appeal has been filed.
8. In this appeal it was contended that the impugned judgment and decree are contrary to the facts, as well as, the points of law involved in the suit. The learned trial court had erred in assessing the age of the witnesses arbitrarily. It has not properly appreciated the evidence of P.W. 1 who is a close agnatic relation of Ramnandan Kahar. The statement of P.W. 1 with respect to the relationship between the plaintiff and Ramnandan Kahar, even if the same is based on hear-say evidence, is admissible in law. Similarly the learned trial court has without any reason assessed the age of P.W. 2 as 48 years when he himself disclosed his age as 70 years. Similarly, the learned trial court has wrongly discarded the evidence of P.W. 2 on the ground that he had not disclosed the source of his knowledge. So far as plaintiff (P.W. 3) is concerned the learned trial court ought to have taken into consideration that P.W. 3 was a very old, infirm and illiterates person. Similarly, the learned trial court has wrongly rejected the testimony of P.W. 4, and P.W. 5. The evidence of P.W. 6 who has claimed to be the grandson of Ramnandan Kahar should have been accepted. Similarly, the learned trial court has not properly appreciated the documentary evidence in record and has come to a wrong conclusion. He has not given due weight to Ext. 1 series, Ext. 2, Ext. 3, Ext. 4, Ext. 5, Ext. 7 series and Ext. 8 series. The learned trial court has committed grave error of law in recording the finding that the plaintiff did not adduce evidence to rebut the contentions of the defendants that the mother of the plaintiff had a son prior to her marriage with Ramnandan Kahar. It should not have accepted the evidence of D.Ws. with respect to the parantage of the plaintiff-appellant. On these grounds amongst others, it has been prayed that this appeal be allowed, the judgment and the decree of the learned trial court be set aside and the suit be decreed with costs throughout.
9. At the time of the hearing, it was conceded by the learned counsels appearing on behalf of both the parties, that the main dispute between the parties is whether the plaintiff-appellant is or is not the son of Ramnandan Kahar. Undoubtedly, this appears to be the main dispute between the parties and is very crucial for the proper determination of the suit. Hence, before proceeding to discuss the oral evidence on this point, I would like to briefly summarise the law on the subject.
10. In this connection, firstly a reference may be made to Section 50 of the Indian Evidence Act (in short 'the Act'). This section is contained in Chapter II of the Act, under the heading 'RELEVENCY OF FACTS.'. This chapter starts from Section 5 and ends with Section 55. Section 50 is a section under Chapter II of the Evidence Act. It will mean that this section also deals with the relevancy of fact. It provides that 'when the court has to form an opinion as to the relationship of one person to another, the opinion expressed by conduct, as to the existence of such relationship, of any person, who, as a member of a family or otherwise, as special means of knowledge on the subject, is a relevant fact. This will mean that in a given situation the opinion expressed by conduct as to the existence of such relationship becomes a relevant fact within the meaning of Section 50 of the Act. In this way, it can be said to be the exception of the general law with respect to hear-say evidence which makes it inadmissible. This section enacts that when the court has to ascertain a question of relationship between two or more parties, the opinion of any person having (1) Special means of knowledge, and (2) expressed by conduct, is admissible in evidence. Besides special knowledge, opinion evidenced by conduct affords a guarantee for trustworthiness. Mere statements that a person is or is not the son of another person is not admissible under Section 50 since the offered item of evidence is 'the conduct', but what is made admissible in evidence is 'the opinion' the opinion as expressed by the conduct.
11. In this connection, a reference may be made to the case of Sitaji v. Bijendra Narain Choudhary and Ors. . In paragraph No. 10 of the judgment, the Hon'ble Supreme Court has summarized the provisions as contained in Section 50 of the Act. It has been held as follows:
...a member of the family can speak in the witness-box of what he has been told and what he was learned about his own ancestors, provided what he says is an expression of his own independent opinion (even though it is based on hearsay derived from deceased, not living persons) and is not merely repetition of the hearsay opinion of others, and provided the opinion is expressed by conduct. His sources information and the time at which he acquired the knowledge (for example, whether before the dispute or not) would effect its weight but not its admissibility. This is therefore legally admissible evidence which, if believed, is legally sufficient to support the finding.
From this statement made in paragraph 10 of this Judgment, it would appear that any such opinion can be based on hearsay evidence provided that such an opinion is an independent opinion and the hearsay is derived from the persons, deceased and not from living persons.
12. The aforesaid passage has been quoted with approval by the Hon'ble Supreme Court in the case of Dolgobinda v. Nimai Charan AIR 1967 SC 914. In this decision, both the scope of Sections 50 and 60 as also of Section 32(5) of the Evidence Act was considered by the Hon'ble Supreme Court. So far as Sections 50 and 60 are concerned, it has been observed as follows:
Under Section 50, when the court has to form as opinion as to the relationship of one person to another the opinion expressed by conduct as to the existence of such relationship of any person who has special means of knowledge on the subject of that relationship is a relevant fact. The essential requirements of the section are:
(1) there must be a case where the court has to form an opinion as to the relationship of one person to another; (2) in such a case, the opinion expressed by conduct as to the existence of such relationship is a relevant fact; (3) but the person whose opinion expressed by conduct is relevant must be a person who as a member of the family or otherwise has special means of knowledge on the particular subject of relationship; in other words, the person must fulfil the condition laid down in the latter part of the section. If the person fulfils that condition, then what is relevant is his opinion expressed by conduct, opinion means something more than mere retailing of gossip or of hearsay, it means judgment or belief, that is a belief or a conviction resulting from what one thinks on a particular question. The "belief" or conviction may manifest itself in conduct or behaviour which indicates the existence of the belief or opinion. What the section says is that such conduct or outward behaviour as evidence of the opinion held is relevant and may, therefore, be proved.
Section 50 does not make evidence of mere general reputation (without conduct) admissible as proof of relationship.
The conduct or outward behaviour must be proved in the manner laid down in Section 60; if the conduct relates to something which can be seen, it must be proved by the person who saw it, if it is something which can be heard, then it must be proved by the person who heard it; and so on. The conduct must be of the person who fulfils the essential conditions of Section 50, and it must be proved in the manner laid down in the provisions relating to proof. That portion of Section 60 which provides that the person who holds an opinion must be called to prove his opinion does not necessarily delimit the scope of Section 50 in the sense that opinion expressed by conduct must be proved only by the person whose conduct expresses the opinion. Conduct, as an external perceptible fact, may be proved either by the testimony of the person himself whose opinion is evidence under Section 50 or by some other person acquainted with the fact which express such opinion, and as the testimony must relate to external facts which constitute conduct and is given by persons personally acquainted with such facts, the testimony is in each case direct within the meaning of Section 60. This is the true interrelation between Section 50 and Section 60 of the Evidence Act. But while Section 50 affords an exceptional way of proving a relationship and by no means prevents any person from stating a fact of which he or she has special means of knowledge the section does not imply that the person whose opinion is a relevant fact cannot be called to state his own opinion as expressed by his conduct and that his conduct may be proved by others only when he is dead or cannot be called. Section 50 does not put any such limitation.
So far as Section 32(5) of the Act is concerned, in this decision it has been observed by the Hon'ble Supreme Court as follows:
Four conditions must be fulfilled for the application of Sub-section (5) of Section 32; firstly, the statements, written or verbal, of relevant facts must have been made by a person who is dead or cannot be found etc. as mentioned in the initial part of the section; Secondly, the statements must relate to the existence of any relationship by blood, marriage or adoption; thirdly, the person making the statement must have special means of knowledge as to the relationship in question; and lastly, the statements must have been made before the question in dispute was raised.
In the said case, a women made a statement on her own behalf and on behalf of her three sons, as to a pedigree. The women was dead and so was one of the brothers.
It was held that the statement was as much a statement of the women and one of the brothers who were dead, as a statement of brother who were alive and was admissible under Section 32(5), if it was made ante litem mortam.
13. The learned Counsel for the appellant has also placed reliance on Division Bench decision of this Court in the case of Ramadhar v. Janki . In this decision also reliance has been placed on the case of Sitaji (supra) as decided by the Hon'ble Supreme Court. In paragraph 12 of this judgment, it has been observed as follows:
In order to admit evidence under Section 50 three conditions must be fulfilled--(1) The person must be proved to have special means of knowledge; (2)(a) the opinion alone is evidence (b) the opinion as expressed by conduct only is evidence; or in other words(1) conduct only can be given in evidence; (ii) from the conduct given in evidence, the Court is to see whether it is the result of any opinion held by the person; and (3) the opinion which is relevant must be one as to the existence of the relationship.
The opinion may be of a member of the family, or an outsider; it is enough if he has special means of knowledge on the subject.
14. In the present case, four P.Ws. appear to have been examined on the point of this relationship. They are P.Ws. 1 to 4, out of them P.W. 3 is the plaintiff himself. P.W. 1 is Deni Ram who disclosed his age to be 60 years, but in the estimation of the Court he was aged about 68 years. He has stated that both the plaintiff and defendant No. 1 are his uncles. He has stated about the death of Ramnandan Kahar about 40 years ago (he was examined on 18.2.1980). No doubt in his cross-examination he has admitted that so far as the parentage of the plaintiff is concerned, he is making this statement on hearing the same from others. The learned Counsel for the respondents has challenged this statement on the ground that it is based on hearsay evidence. As pointed out above, it has Cleary been held in the case of Sitaji (.supra) that any such opinion if it is of independent nature, can be based on the hearsay evidence. This decision has been quoted with approval in the subsequent decision of the Supreme Court in the case of Dalgobinda (supra). Also a Division Bench of this Court has taken a similar view in the case of Ramadhar Choudhary (supra).
15. P.W. 2, Rajeshwari Prasad Srivastava, is another witness on this point, though he has disclosed his age to be 70 years. The court assessed his age as 48 years. He has stated that Janki Ram alias Jan Rain was one of the sons of Ramnandan Kahar. He has further stated that the descendants of Ramnandan Kahar are cultivating the lands according to their convenience. In his cross-examination he has stated that he had seen Ramnandan Kahar and was acquainted with his family being his co-villager, P.W. 3 is the original plaintiff-appellant himself. He has disclosed his age to be the 76 years. He has also claimed to be the son of Ramnandan Kahar. P.W. 4 is Rajkishore Giri, who has disclosed his age to be the 55 years. He has also stated that Janki Ram is the son of Ramnandan Kahar.
16. In paragraph 6 of the judgment of the learned trial court, has taken up for consideration the evidence of P.Ws. on these points. So far as P.W. 1 is concerned, the learned trial court had disbelieved him on the ground that the plaintiff was much older than him and in his cross-examination he has admitted that whatever he had stated was on the basis of what he had heard. As pointed out above, the law as contained in Section 50 is by way of exception to the law with respect to hearsay evidence and if a person forms an independent opinion, based on any such hearsay statement, the same becomes relevant. Hence, the question whether he was younger in age to the plaintiff or that he heard about this relationship from others, is hardly of any importance, and on these grounds the relevancy of his statements with respect to this relationship cannot be doubted. The same principle of law will apply to P.W. 2 also. The learned trial court has observed in this paragraph of the judgment that this witness (P.W. 2) did not have any particular knowledge about the family of Ramnandan Kahar. As pointed out above, P.W. 2 has claimed to be the co-villager of Ramanandan Kahar. So far as P.W. 3 is concerned, no doubt in his cross-examination he has not been able to give the differences in the age between Bechu Kahar the son of Ramanadan Kahar and Lagni Devi the daughter of Ramanandan Kahar. He has also not been able to give difference of age between him and Sukan the admitted son of Ram Nandan Kahar. He has also not been able to give differences of age between him and Sukan the admitted son of Ram Nandan Kahar. He has also not been able to say how older he is than Bideshi (defendant No. 1) another admitted son of Ramnandan Kahar. On these grounds, the learned trial court has doubted the evidence of P.W. 3. No doubt in the normal course the eldest brother in the family is expected to know these facts, However, on behalf of the appellant it has been submitted that he was an old and illiterate person, ignorant of various facts. He may not be in a position to count the years. So far as P.W. 4 is concerned, he has been disbelieved by the learned trial court on the ground that he is younger to the plaintiff and that he has not disclosed the sources of his knowledge. So far as P.Ws. 5 and 6 are concerned, they are sons of the plaintiff. P.W. 5 is aged about 58 years, whereas, P.W. 6 is aged about 36 years. Both of them have stated that Ramnandan Kahar was their grand-father. No doubt P.W. 5 his shown some ignorance about the elder members of the family of Ramnandan Kahar. On this ground alone his evidence cannot be burshed aside.
17. In this connection, a reference may be made to the evidnece of D.Ws. also on this point. D.W. 1 is defendant No. 1. In his examination-in-chief he has disclosed the facts stated in his written statement. He has disclosed his age to be 61 years and in his cross-examination he has stated that he knows Janki Ram since the time when he attained his Hosh. He has further admitted that he could learn about the marriage of Jibasia with his father when a dispute in this regard had arisen and at that time he was aged about 8 to 10 years. Obvious since D. W. 1 is admittedly the son of Jibasia, his statement in this regard is based on hearsay evidence, D.W. 2 is the defendant No. 2. She is the daughter-in-law of Ramnandan Kahar. Admittedly, her husband is the son of Jibasia. Hence, her evidence also is based on hearsay evidence. So far as D.W. 3 is concerned, he has disclosed his age to be 80 years and he has also repeated the same story as disclosed in the written statement of the defendants. D.W. 4 has stated that Janki Kahar is not the son of Ramnandan Ktthar. D.Ws. 5 and 6 are the formal witnesses.
18. I will next proceed to consider the documentary evidence on the record. It is well known that the witnesses may lie but the documents will not. If the documents themselves will clearly go to show that Janki Kahar was one of the sons of Ramandan Kahar, there could be no manner of doubt with respect to. his parentage even if the oral evidence on this point is not consistent, and satisfactory. In this connection I will firstly make a reference to Ext. 2 which is a sale-deed executed by Raghunath Kahar in favour of Janki Kahar and Supan Kahar. This document was executed in the year 1941. In this document there is clear mention of the fact that Janki and Supan were the sons of Ramnandan Kahar. Since this document was executed at a time when there was no such dispute between the parties with respect to the parentage of Janki Kahar, Exhibit-2 assumes special importance. No doubt it does not contain the statement of Supan Kahar. This will, however, not make much difference since it was executed in the normal course in which Janki Kahar has been described as the son of Ramnaudan Kahar and Supan Kahar, one of the admitted sons of Ramnandan Kahar, was one of the vendees. If any such wrong statement was made in Ext. 2 with respect to the parentage of Janki Kahar nothing could have prevented Supan Kahar from getting the deed of correction executed by Raghunath Kahar. In this connection it may be mentioned that Raghunath Kahar is nobody else than the son of Khedu Kahar, According to Paragraph 16 of the written statement Khedu Kahar was nobody else then the step son of Supan Kahar. Most. Jibasia is admittedly the daughter of this Supan Kahar. From this it would appear that Raghunath Kahar the executant of Ext. 2 was a person fairly well-acquainted with the family of Ramnandan Kahar. Under this circumstance, when in the year 1941 he had described the present plaintiff as the son of Ramnandan Kahar, the same cannot be doubted. In paragraph-16 of the written statement, it has further been stated that originally it was agreed that the plaintiff-defendants No. 1 and Supan Kahar would jointly purchase this land from Raghunath Kahar. However, the document, was good executed in the names of defendant No. 7 and the plaintiff in which he wrongly described himself as the son of Ramnandan Kahar. In paragraph 17 of the written statement, it has been stated that defendant No. 1 recently came to know about this fact. This statement is vague as defendant No. 1 has not disclosed when and in which year he learnt about it. Further it is not clear why he could not take any steps for its correction at the proper time.
19. The other documents on this point are Exts. 1 series which are rent receipts. In them also Janki Kahar has been shown to be the son of Ramnandan Kahar, Ext. 3 is a notice issued by the Collector under the Land Acquisition Act. This was issued in the year 1956. In it also Janki Kahar and Supan Kahar have been described to be the sons of Ramnandan Kahar. Ext. 4 is the voters list of village Murmusi. In it at serial No. 161 is the name of Janki Ram and his father's name has been disclosed as Ramnandan Ram, At the time of hearing, a question was raised whether the voters' list is public document and as such it is admissible in evidence or not. In this connection, a reference has been made to the case of Kirtan v. Thakur AIR 1972 Ori. 150 (FB). It was held in it that the electoral roll prepared on under the Representation of Peoples Act is a public record within the meaning of Section 3j and a public document within Section 74(1)(iii) of the Act and is admissible in is evidence. As such, it is not necessary to call any evidence and the author thereof or a person supplying the information to prove the roll as its genuineness will be presumed, when it is produced before the Court. Hence, in view of this Full Bench decision, there can be no manner of doubt that it is a public document.
20. Further a reference may be made to Ext. 5 which is a hand-note dated 31.12.1958. This was executed by Janki Ram alias Jan Ram in which he had described himself as the son of Ramnandan Kahar. Ext. 7 is a sale-deed dated 14.5.1953. It was executed by Smt. Dharmabati Devi in favour of Janki Kahar, the son of Ramanandan Kahar. Similarly, Ext. 7/1 is another sale deed executed by Smt. Dharmabati Devi in favour of Janki Kahar, the son of Ramnandan Kahar on 14.8.1953. In both these sale deeds, Janki Kahar had been described as the son of Ramnandan Kahar. These statements appear to have been made at a time when the parentage of Janki Kahar does not appear to be in dispute. Hence, they have to be accepted as the evidence in support of the fact that Janki Kahar is the son of Ramnandan Khar. Similarly, Ext. B produced on behalf of respondent. Is a notice issued by the S.D.O., Sadar, Daltanganj in a proceeding under Section 144 of the Code of Criminal Procedure, in which defendant No. 1 and others had figured as the members of the 1st party and the plaintiff and others had figured as the member of the 2nd party. In Ext. B also Janki Kahar has been described as the son of Ramnandan Kahar. This notice appears to have been issued in the year 1976 itself. No doubt in the order dated 11.11.1978, passed in the proceeding under Section 144 of the Code, the case of the present defendants was discussed in detail by the learned Sub-divisional Magistrate, in which they had taken the stand that Janki Ram was not the son of Raghunandan Ram, Ext. C is the order passed by the learned Magistrate converting this proceeding into one under Section 145 of the Code. So far, as Ext. D is concerned, it is the copy of the deposition of one Aklu Ram recorded on 12.4.1979. In his statement Aklu Ram has supported the case of the defendants, however, it has to be remember in this connection that in the year 1979 already the parties were in dispute on the question whether or not Janki Kahar is the son of Ramnandan Kahar.
21. The documents produced on behalf of the plaintiff-appellant, however, clearly go to show the parentage of Janki Kahar. As stated above, in Ext. 2 Supan Kahar the husband of defendant No. 3 was also a party. This is a document executed in the year 1981 by a person. Who can reasonably be expected to be acquainted with the family of Ram Nandan Kahar, Under this circumstance, the statement made in it that Janki Kahar is the son of Ram Nandan Kahar cannot be brushed aside. The same is the case with other documents, like Exts. 3, 4, 5, 7 and 7/1.
22. On behalf of the respondents, it has been seriously contended that these documents will not bind them. They have pointed out that the statements contained therein were not made by any of the defendants. No doubt this is true that they do not contain any statement made by the defendants. However, they are relevant pieces of documents and the statements made therein were made at a time when the controversy between the parties had not started. Under this circumstance, these documents which are relevent cannot be burshed aside.
23. From the detailed discussions made above, it becomes perfectly clear to me that the judgment and decree passed by the learned Court below cannot be sustained.
24. Before, concluding, however I would like to mention that in paragraph 14 of the plaint the plaintiff had contended that while doing separate cultivation, he did Gilandaji and improved plot Nos. 13, 87, 111 and 153 by spending huge amount of money and labour. Hence he has claimed to be entitled to retain these plots. This claim has been denied in paragraph No. 22 of the written statement in which it has been stated that since the plaintiff was not in possession of any of these plots he could not have done Gilandaji with respect to these plots. In this connection a brief reference may be made to the evidence of the plaintiff (P.W. 3). In paragraph 8 of his evidence he has stated that his sons know about Gilandaji. He has further stated that the cost over Gilandaji was met by the State and he has not filed necessary papers in this connection. In his evidence defendant No. 1 (D.W. 1). has denied the fact that Janki Ram got any Gilandaji done over any portion of the suit since he was not in its possession. From all these it would appear that the plaintiff was failed to prove that he had improved plot Nos. 13, 87, 111 and 153 at his own cost and therefore, the same be allotted to his share.
25. In the result, this appeal is allowed in the manner indicated above and the judgment and the decree passed by the learned Court below dismissing the suit of the plaintiff appellant are set aside. The suit is decreed on contest with costs throughout at the minimum prescribed scale. Hearing fee Rs. 250. It is held that the plaintiff is entitled to 1/4th share in the suit property. Let a preliminary decree to that effect be drawn up.