- (1.) HEARD . In Partition Suit No. 6 of 1974, plaintiffs claimed 1/4th share in the properties, detailed in Schedule B to the plaint and on 30.3.1979 preliminary decree in part was passed. They were not allowed to treat the house and well made in plot No. 654 as their separate properties. Defendants 1 and 2 were held entitled to 1/4th share and defendant No. 3 to 1/2. Defendants 4 to 7 were not the heirs of recorded tenant. Abhilakh and so they were not entitled to any share. They preferred Partition Appeal No. 30 of 1979, which was allowed on 21.6.1980. It was held that Sahdeo was son of Abhilakh, Heirs of defendant No. 3, against the said judgment and decree preferred Second Appeal No. 163 of 1980(R) to this Court, which was allowed on 11.10,1968. The Judgment and decree passed by First appellate Court was set aside, and appeal was remitted with the following observations in paragraphs 10 and 13 of the Judgment: "From a perusal of the judgment passed by the learned lower appellate court, it appears that he placed the onus of proof in respect of the aforesaid mentioned issue No. 3 on the defendant No. 3 and came to the conclusion chat Sahdeo was brother of Jagdeo on the basis that both defendant No. 3 and the said Sahdeo had their houses adjacent to each other and as such they would be presumed to be the brothers."................."In this view of the matter, there cannot be any doubt that the lower appellate Court committed a serious illegality in not taking into consideration the evidence of PWs 1, 4, 5 and 6. Their evidences were further more required to be considered in view of the fact that although according to the learned Court below the burden of proof was upon the defendant No. 3, but the nature of proof required being in the negative form, a mere denial on the part of the said defendant was sufficient to discharge the onus and the harden of proof then will shift to the plaintiffs to prove that Sahdeo Sao was brother of Jagdeo Sao."
(2.) AFTER remand the first appellate Court considered evidence of PWs 1. 4, 5 and 6 in paragraphs 13 to 15 PW 1 had not seen Sahdeo. According to the him Sahdeo died in 1945. He was not aware of his place of death and was also unable to say anything about the dispute on the point that Sahdeo was son of recorded tenant Abhilakh and brother of defendant No. 3. Jagdeo Sao. According to PW 4, Sahdeo died in or about 1928 and he was born in 1978. There was contradictory statement of PWs 1 and 4 on the point of death of Sahdeo. On the one hand PW 4 stated that Sahdeo was born in 1978 but on the other he also admitted that his name did not find place in Cadestril Survey entries and as such his evidence on the point of birth of Sahdeo was also not reliable. According to PW 5, also Sahdeo died in or about 1928. PW 6 had not seen Sahdeo and came to know when he was aged about 15 to 20 years that Sahdeo was also on of Abhilakh. Defendants 4 to 7 are heirs of Sahdeo. In my view, none of PWs 1. 4, 5 and 6 had any special means of knowledge about relationship of father and son between Abhilakh and Sahdeo, as required under Section 50 of the Evidence Act. On the other hand, defendants 4 to 7 examined 4 witnesses. Defendant No. 5 examined himself as DW 1 and DWs 2 to 4 were only formal witnesses. There was no independent witness to support their case and claim. Name of Sahdeo did not find place in the rent receipts, Exts. A and B series. In Ext. C, the rent reduction Schedule of 1939 also only name of Jagdeo was mentioned. In Parcha. Ext. D/1 also the lands were recorded in the name of Jagdeo Sao alone. Hence, both the Courts below rightly recorded concurrent findings of fact that Sahdeo was not son of recorded tenant Abhilakh Kandu. This Second appeal is concluded by concurrent findings of fact recorded by the two courts below, it is, accordingly, dismissed.
(3.) SECOND appeal dismissed.;