RAMANUGRAH Vs. RAMANUJ

JUDGEMENT

(1.) LEARNED counsel for the appellants argued that the lower appellate Court should not have reversed the finding recorded by the trial Court, to the effect that the partition was affected in the year 1980 and not in the year 1959. It is not in dispute that the suit property was purchased in the year 1961 by Ramanuj, the respondent No. 1 and, therefore, if the finding is recorded against the appellants to the effect that there was a partition in the year 1959, the suit property will not be deemed to be Joint Hindu Family property and, therefore, the question of partition shall not arise. The lower appellate Court has considered the evidence in paragraph 9 of its judgment. It is disagreed with the trial Court that the evidence led by the appellants is liable to be accepted. On the other hand, it has relied on the admission of the appellant No. 1 in paragraph 7 of his statement to the effect that partition was done about 30 years back and not 50 years back as stated by him in examination -in -chief. It is true that the trial Court did not rely on this admission because the trial Court was of the view that in the next sentence, the appellant not corrected himself. Nevertheless, the lower appellate Court was entitled to reverse the finding of the trial Court on statement made by the respondent No. 1, Ramanuj. The question of perversity does not arise here. The lower appellate Court has further relied. on the evidence of the respondent No. 1, Ramanuj for holding that there was a partition prior to 1961, when the suit property was purchased in the name of the respondent No. 1. The appellants did not place on record any Khasra entries in respect of the suit property, showing that the other ancestral property was recorded jointly in the name of the members of Joint Hindu Family.

(2.) THIS fact has been more clinching for proving that there was jointness of family till 1980. It is well established that the first appellate Court can reverse the finding of fact of preponderance of probability according to its appreciation of evidence on record. It is definitely true that first appellate Court, reversing the judgment of the trial Court, have given reason for differing from the view. However, the lower appellate Court, in exercise of its powers need not meet each and every reason on which the trial Court gave a particular conclusion. In any case, this cannot be, questioned. Learned counsel for the appellants has filed an application under Order 41 Rule 27 of the Code of Civil Procedure producing the document which purports to be the consent of Ramanuj, the respondent No. 1 to the effect that the suit property and also other property remained joint and the appellants had share in the suit property. This document was executed on 4.1.1987, prior to filing of the suit. It was not produced before the trial Court or the lower appellate Court. It purports to be a document in which there is alleged thumb impression of the respondent No., 1, Ramanuj. This document itself says that there was a kind of memorandum (pulli) prepared regarding partition of the property and it was given to all the persons who got partition. No such document has been produced in the Court styled as the pulli of the partition. Moreover, there are some interpolations in the document and corrections in it. In view of this matter, this Court would not admit this document specially when it requires reopening of the evidence. The appellants should have filed this document before the trial Court, as it was executed prior to filing of the suit. The explanation of the appellants that this document of consent could not be discovered, is not acceptable, to this Court.