Arjun Prasad, vs SARYU PRASAD
- Court
- Patna High Court
IN THE HIGH COURT OF JUDICATURE AT PATNA
FIRST APPEAL No.48 of 2006
CNR No. BRHC010359652006
======================================================
1. Arjun Prasad, Son of late Guru Sharan Ram, Resident of Silaw, P.S. Silao,
District-Nalanda.
2. Bikrant Kumar, Son of Arjun Prasad, Resident of Silaw, P.S. Silao, District-
Nalanda at Biharsharif.
3. Vivek Kumar, Son of Arjun Prasad, Resident of Silaw, P.S. Silao, District-
Nalanda at Bihar Sharif.
... ... Appellant/s
Versus
2. Arvind Kumar, Son of Sri Saryu Prasad, Resident of Silaw, P.S. Silao,
District-Nalanda at Biharsharif.
3. Anil Kumar, Son of Sri Saryu Prasad, Resident of Silaw, P.S. Silao, District-
Nalanda at Biharsharif.
4. Sunil Kumar, Son of Sri Saryu Prasad, Resident of Silaw, P.S. Silao,
District-Nalanda at Biharsharif.
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Ramesh Kumar Chaudhary, Advocate
For the Respondent/s : Mr. Sanjay Prasad, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE RAMESH CHAND
MALVIYA
CAV JUDGMENT
Date : 30.10.2026
Heard learned counsel for the appellants as well as
learned counsel for the respondents.
2. The present first appeal has been preferred under
Section 96 of the Code of Civil Procedure, 1908 (hereinafter
referred to as ‘CPC’) against the judgment dated 28.01.2006
and decree dated 16.02.2006 passed by the Court of learned
Subordinate Judge-VII, Biharsharif at Nalanda (hereinafter
referred to as ‘Trial Court’) in Title Suit No.102 of 1997,
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wherein the learned Trial Court dismissed the claim of the
plaintiffs (appellants herein) with cost.
3. For the sake of convenience, the parties shall be
referred to in terms of their status before the learned Trial
Court.
4. The facts of the case, as set out in the plaint, are
that the appellants-plaintiffs instituted Title Suit No. 102 of
1997 seeking a decree for partition of their 66 paise share in the
movable and immovable properties described in Schedules II
and III of the plaint, claiming the same to be joint family
properties in joint possession of the parties. The case of the
plaintiffs is that Govind Ram of village Chainpura, P.S. Atri,
District Gaya, had two sons, namely, Kanhai Ram and
Gurusharan Ram, and the latter was adopted by Kashiram of
village Silao, District Nalanda, who was married to the sister of
Govind Ram and had no issue of his own. According to the
plaintiffs, Gurusharan Ram thereafter, started residing with
Kashiram as his adopted son, and upon the death of Kashiram
and his wife Devaki Devi, succeeded to their properties. It is
further pleaded that Gurusharan Ram died leaving behind his
wife, plaintiff no. 4 Binda Devi alias Meghni Devi, and two
sons, namely, plaintiff no. 1 Arjun Prasad and defendant no. 1
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Saryug Prasad, who inherited and continued in joint possession
of the family properties. Since plaintiff no. 1 was a minor at the
time of his father's death, defendant no. 1, being the elder
brother, allegedly managed the family affairs and properties as
the Karta of the joint family. The plaintiffs further asserted that
the family possessed movable and immovable properties,
including business assets, over which the parties had unity of
title and possession, but subsequent disputes and differences
necessitated the institution of the suit for partition.
5. The defendants-respondents appeared and filed
their written statement, denying the relationship of brotherhood
between plaintiff no. 1 Arjun Prasad and defendant no. 1 Saryug
Prasad and disputing the genealogy set out in the plaint. Their
specific case was that they belonged to a different family
originating from Budhan Ram of village Karah Haiderganj, P.S.
Silao, District Nalanda, who had two sons, Kashiram and Bihari
Ram. It is stated that Kashiram’s natural son was Gurusharan
Ram, whose only son was defendant no. 1 Saryug Prasad,
whereas the plaintiffs belonged to the family of Govind Ram of
village Chainpura, District Gaya, whose son Gurusharan Ram
was a different person altogether. The defendants denied that
Kashiram had adopted the plaintiffs’ alleged father or that
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plaintiff no. 4 was the mother of defendant no. 1. It was further
asserted that defendant no. 1 had inherited the properties of
Kashiram and Bihari Ram and was in exclusive possession
thereof, while the plaintiffs had no right, title or interest in the
same. It was also pleaded that plaintiff no. 1 was a tenant in the
house of defendant no. 1, that the parties had no unity of title or
possession, and that the plaintiffs had suppressed the existence
of Geeta Prasad, the alleged elder brother of plaintiff no. 1. On
these grounds, the defendants challenged the maintainability of
the suit and prayed for its dismissal.
6. On the basis of the pleadings of the parties, the
learned Trial Court framed eleven issues for determination, as
herein under:
“ (i) Is the suit as framed maintainable?
(ii) Have the plaintiffs got cause of action
for the suit?
(iii) Is the suit barred by sec, 34 of the
Specific Relief Act?
(iv) whether the court fee paid sufficient?
(v) Is the suit barred by law of limitation?
(vi) Whether Kashi Ram of village Silao
Haidarganj Karah was married with the
sister of Govind Ram of Village-Chainpura,
P.S. Atri, District-Gaya?
(vii) Whether there were two Gurusharan
Ram, one son of Kashi Ram of Village-
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Silao Haidarganj, P.S. Atri?
(viii) Whether plaintiff Arjun Prasad and
defendant no. 1 Saryug Prasad are sons of
one and the same Gurusharan Ram from
mother late Most. Binda Devi @ Meghni
Devi?
(ix) Is there any unity of title and
possession in between the plaintiffs and the
defendants?
(x) Are the plaintiffs entitled to a decree for
partition of the suit property?
(xi) To what reliefs other for which the
plaintiffs are entitled too?”
7. In support of their respective cases, both parties
adduced oral as well as documentary evidence. The plaintiffs
examined thirteen witnesses and exhibited documentary
evidence, which are as under in tabular form for ready
reference:
List of Plaintiff-Witnesses
PWs Description
PW-1 Binda Devi @ Meghni Devi (wife of Gurusharan
Ram/mother of plaintiff no.1 and defendant
no.1/plaintiff no.4)
PW-2 Chandradeo Ram (maternal uncle of plaintiff no.1
and defendant no.1 and brother of PW-1)
PW-3 Vijay Kumar (purchaser of land from Kanhai Ram)
PW-4 Rajendra Prasad (Friend of Kashi Ram from a
neighbour village)
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PW-5 Dr. Indradeo Prasad Gupta (known to the parties)
PW-6 Barho Devi (elder daughter of Govind Ram)
PW-7 Wasi Ahmed (known to the parties)
PW-8 Arjun Prasad (plaintiff no.1)
PW-9 Diksha Narayan Singh (formal witness)
PW-10 Chandra Choudhary (close door neighbour of the
plaintiffs and defendants)
PW-11 Bihari Prasad (relative of the plaintiffs and
defendants)
PW-12 Jagat Prasad Singh (headmaster of Middle School,
Silao who brought the admission register of 1965-
1966)
PW-13 Sitaram Pandit (chaukidari sarpanch/formal witness)
List of Exhibits
Exts. Description
Ext.-1 Original sale deed dated 28.09.1972
Ext.-2 to 2C Chaukidari receipts
Ext.-3 School Admission Register of Middle School,
Silao
Ext.-4 Revenue Rent Receipt
Ext.-5 Order of Mutation of Anchal Adhikari dated
30.10.1997
Ext.-6 Mutation Paper
Ext.-7 C.C. of the Voter List of year 1980 of Rajgir
constituency, Village-Silao
Ext.-8 Gram Panchayat Parikarik Register of year 1958
Ext.-9 Mutation Suddhi Patra
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Ext.-10 Residential Certificate
Ext.-11 Original certificate in the name of Arjun Prasad
issued by Bihar Vidyalaya Pariksha Samiti
Ext.-12 Deposition of Saryu Prasad in T.S. No.139 of
1996
8. The defendants, on the other hand, examined ten
witnesses and produced documentary evidence to support their
plea of separate genealogies, exclusive possession and the
alleged independent identity of the two persons named
Gurusharan Ram. The evidence, oral as well as documentary,
produced by the defendants are as herein under in tabular form
for ready reference:
List of Defendant Witnesses
DWs Description
DW-1 Sheo Nandan Prasad (known to the parties)
DW-2 Saryug Prasad (defendant no.2)
DW-3 Mahendra Singh (known to the parties)
DW-4 Brij Nandan Prasad (co-villager)
DW-5 Miskri Singh (known to the parties)
DW-6 Uma Charan Ram (relative)
DW-7 Shyam Kishore Prasad (formal witness)
DW-8 Hari Mahto (known to the parties)
DW-9 Bishnu Dayal Prasad (formal witness)
DW-10 Ram Bilash Yadav (formal witness)
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List of Exhibits
Exts. Description
Ext.-A Deed of Mortgage dated 07.03.1960 executed
by Saryug Ram in favour of Dwarka Ram
Ext.-B to B17 Chaukidari Receipts
Ext.-C to C9 Challan showing payment of land revenue in
the name of Bihari Ram
Ext.-D License in the name of Arvind Kumar
Ext.-E Order-sheet dated 11.04.1957
Ext.-F Survey Khatian
Ext.-G Notice
Ext.-H Fine charge dated 28.07.1975
Ext.-I Tax token of B.R.Q.-4588
Ext.-J Road permit of Taxi No. B.R.Q.-4588 in the
name of Gita Prasad
Ext.-J1 Notice in the name of Gita Prasad
Ext.-K Notice fine in the name of Gita Prasad
Ext.-K1 Road permit in the name of Gita Prasad
9. Upon consideration of the oral and documentary
evidence, the learned Trial Court, by the impugned judgment
and decree dated 28.01.2006, dismissed the suit with costs. The
learned Trial Court held that the plaintiffs had failed to establish
the alleged adoption of Gurusharan Ram by Kashiram and had
not satisfactorily proved that plaintiff no. 1 Arjun Prasad and
defendant No. 1 Saryug Prasad were sons of the same person.
Learned Trial Court further doubted the genuineness and
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evidentiary value of Ext.-1, questioned the reliability of certain
documents produced by the plaintiffs, and considered Exts.-7
and 8 doubtful on account of discrepancies concerning the
villages to which they related and the circumstances
surrounding their issuance. The learned Trial Court further
relied upon the documentary evidence produced by the
defendants to hold that the plaintiffs belonged to a different
lineage and observed that the alleged suppression of Gita
Prasad, stated to be the brother of plaintiff no. 1, adversely
affected the plaintiffs’ case and rendered the suit defective for
non-joinder of a necessary party. Consequently, it held that the
plaintiffs had failed to establish the joint family relationship,
unity of title and joint possession necessary to sustain their
claim for partition and were not entitled to any share in the suit
properties.
10. Aggrieved by the aforesaid judgment and decree,
the plaintiffs have preferred the present first appeal.
11. Learned counsel appearing on behalf of the
appellants submitted that the impugned judgment and decree
passed by the learned Trial Court suffer from material errors in
the appreciation of oral and documentary evidence, resulting in
the erroneous dismissal of the suit for partition. It is submitted
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that the principal controversy in the suit concerns the identity of
the common ancestor and the relationship between the parties.
The appellants have consistently asserted that plaintiff no.1
Arjun Prasad and defendant no.1 Saryug Prasad are the sons of
the same Gurusharan Ram, and the later was taken in adoption
by Kashiram, who was married to the sister of Govind Ram of
village Chainpura, District Gaya. Learned counsel further
submitted that the oral testimony of the witnesses acquainted
with the family history, read in conjunction with the
documentary evidence, sufficiently establishes the pleaded
genealogy and the entitlement of appellants to a share in the suit
properties.
11.i. Learned counsel for the appellants further
submitted that the learned Trial Court failed to attach due
evidentiary value to Ext.-1, the registered sale deed dated
28.09.1972, in which defendant no. 1 is described as acting on
his own behalf and as guardian of his minor brother, Arjun
Prasad. Learned counsel submitted that the said document
constitutes a significant piece of evidence supporting the
relationship between the parties, particularly when the
execution of the document was supported by the testimony of
PW-3, the purchaser’s son, who claimed to have witnessed the
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transaction and identified both parties. Learned counsel also
drew attention to Ext.-3, the school admission register recording
Gurusharan Ram as the father of Arjun Prasad and Saryug
Prasad as his guardian, as well as Exts.-7 and 8, the voter list
and Gram Panchayat family register, respectively. It is
submitted that these documents, considered cumulatively, lend
substantial support to the appellants’ case and could not have
been discarded merely on the basis of conjectures or isolated
discrepancies.
11.ii. Learned counsel next submitted that the learned
Trial Court erred in rejecting the oral evidence adduced by the
appellants without properly appreciating the testimony of the
witnesses who were acquainted with the family and its affairs. It
is pointed out that the evidence of PWs- 2, 4, 5, 6, 7, 10 and 11
were relied upon to establish the relationship between the
parties and their joint possession of the suit properties.
Particular emphasis has been placed on the testimony of DW-3,
Mahendra Singh, which, according to the appellants, supported
their case concerning the identity of the father of the parties and
their residence in the ancestral house. It is submitted that the
defence evidence was not subjected to an equally careful
scrutiny and that the documentary materials relied upon by the
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respondents concerning revenue payments, business
transactions and vehicles did not, by themselves, disprove the
relationship pleaded by the appellants.
11.iii. Lastly, learned counsel for the appellants
submitted that the learned Trial Court was not justified in
drawing an adverse inference against the appellants on account
of the alleged suppression of Geeta Prasad, particularly when
the appellants disputed the respondents’ version regarding his
relationship with plaintiff no.1. It is further submitted that the
application seeking comparison of the thumb impression of
defendant no.1 appearing on Ext.-1 was kept in abeyance by
order dated 27.08.2001, and the absence of such comparison
deprived the appellants of an opportunity to obtain expert
evidence on a material issue. According to the appellants, the
cumulative effect of the oral and documentary evidence
establishes the relationship between the parties, the unity of title
and possession, and their entitlement to the claimed 66 paise
share. Accordingly, it is prayed that the impugned judgment and
decree be set aside and the suit be decreed.
12. Per contra , learned counsel appearing on behalf
of the respondents supported the impugned judgment and
decree and submitted that the appellants have failed to establish
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the foundational fact necessary for maintaining a suit for
partition, namely, their relationship with the respondents and
their entitlement to a share in the suit properties. It is submitted
that the defence has consistently maintained that the parties
belong to two distinct families and that the similarity in the
name of their respective ancestors, both named Gurusharan
Ram, cannot establish a common lineage. Learned counsel
submitted that Gurusharan Ram who was the father of
defendant no.1 was the natural son of Kashiram of Karah
Haiderganj, District Nalanda, whereas the father of plaintiff no.
1 belonged to the family of Govind Ram of Chainpura, District
Gaya. Learned counsel submitted that the alleged adoption,
which forms an essential link in the appellants’ genealogy, has
not been established by reliable evidence. He further submitted
that Malti Devi was the wife of Gurusharan Ram and not Binda
Devi. Gurusharan Ram and Malti Devi were killed in the 1946-
47 riots. Bihari Ram died issueless on 18.02.1957, and
Kashiram died in 1984. He also stated that Govind Ram of
Chainpura had no sister married to Kashiram. His sister, Rama
Devi, was married to Ramlal of Gauriasarai (Khodaganj). The
plaintiffs’ Gurusharan Ram is an altogether different person
who lived at Chainpura (Gaya).
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12.i. He further submitted that plaintiff No. 1 is the
grandson of Govind Ram and has an elder brother, Geeta
Prasad, who was not impleaded. Plaintiff No. 1 has lived in
Silao since 1964 and worked as a taxi driver and lives as a
tenant in a house of Defendant No. 1. He further submitted that
the suit was allegedly instigated by Om Prakash, a cousin of
Arjun who was dismissed from a shop of defendant no. 1’s son.
The defendants has exclusive possession, right, title and interest
over the disputed property. He further submitted that the
defendants proved through documentary evidence, Exts. G,
G/1, G/2, H, I, J and K (sales-tax notices, fine receipts, tax
token and road permits), that Plaintiff No. 1 Arjun Prasad has a
real brother, Geeta Prasad, and that both are taxi drivers. The
plaintiffs did not plead the existence of Geeta Prasad. On the
plaintiffs' own case, that Plaintiff No. 1 is the son of Gurusharan
Ram and is entitled to a share in the property of the Karah
family, Geeta Prasad, as a full brother of Plaintiff No. 1, would
be equally a co-sharer. His deliberate omission has two
consequences; (i) the suit is bad for non-joinder of a necessary
party, since no effective partition decree can be passed in the
absence of a person whose share would be affected (Issue No.
4); and (ii) the plaintiffs did not come to court with clean hands.
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A party who conceals a material fact such as the existence of his
own brother, to support a claim of descent from a different
family, is disentitled to equitable relief.
12.ii. Learned counsel for the respondents further
submitted that Ext.-1 (sale deed dated 28.09.1972) does not
conclusively establish the alleged brotherhood between plaintiff
no.1 and defendant no.1. He submitted that the respondents
disputed the execution and genuineness of the document by
defendant no.1 and point out that the signature attributed to him
on the sale deed is in Devanagari script, whereas his signatures
on other documents, including Ext.-A, the registered mortgage
deed, are in Kaithi script. It is submitted that the mere
description of Arjun Prasad as a minor brother in the sale deed
cannot dispense with the requirement of proving the execution
of the document and authenticity when the same has
specifically been disputed. Further, the land situated at
Chainpura, which is the plaintiffs village and not defendant.
Defendant No. 1 had no occasion to deal with land there as a
guardian of anyone. Execution of a document does not by itself
prove the relationship pleaded. Learned counsel further
submitted that Ext.-3, the school admission register, and the
other documents relied upon by the appellants are insufficient to
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establish the disputed genealogy, particularly in the absence of
reliable corroboration concerning their preparation, authenticity
and evidentiary significance. Exts. 3, 10 and 11 (school records)
show only that the father’s name of Plaintiff No. 1 is recorded
as Gurusharan Ram. The defendants do not dispute that Plaintiff
No. 1's father was named Gurusharan Ram. The dispute is
whether he is the same Gurusharan Ram as the father of
Defendant No. 1. The records say nothing about the village, the
lineage, or adoption by Kashiram. They therefore prove nothing
on the decisive question.
12.iii. Learned counsel for the respondents also
submitted that the oral evidence adduced by the appellants
suffered from material inconsistencies concerning the alleged
adoption, the identity of the family members and the
relationship between the parties. It is submitted that the
testimony of the witnesses must be assessed in its entirety and
that the statements of interested or related witnesses cannot be
accepted without careful scrutiny, particularly where the central
issue is the identity of the common ancestor. Learned counsel
further relies upon the documentary evidence produced on their
behalf, including the chaukidari receipts, revenue records,
survey documents and other materials, to submit that the
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properties were held and dealt with independently by the
respondents’ family. It is submitted that the appellants have
failed to establish that the suit properties formed part of a joint
family estate in which they possessed any subsisting share.
12.iv. He further submitted that only a coparcener of a
joint Hindu family can seek partition of coparcenary property,
and every coparcener must trace descent from a common
ancestor. The plaintiffs, having failed to prove a common
ancestor, have no right to seek partition. The appellant’s case
depends wholly on proof of adoption and descent from a
common ancestor. The plaintiff’s own witnesses admit that
Kashiram had a natural son named Gurusharan Ram, which
negates the fact of adoption. On possession, the evidence shows
that Plaintiff No. 1 is a resident of Gaya district who came to
Silao for business in or about 1964 and resides there as a tenant
in one of house of Defendant No. 1. The defendants proved
their possession and occupation through both oral and
documentary evidences. The learned Trial Court correctly
concluded that the disputed property is not in joint possession
and occupancy of both parties.
12.v. Learned counsel for the respondents lastly
submitted that the appellants cannot succeed merely by pointing
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out alleged deficiencies in the evidence adduced by the
respondents, as the burden of establishing their own title and
entitlement to partition rests upon them. It is submitted that the
appellants have failed to prove either the alleged adoption or the
unity of title and possession, while the claim concerning the
existence and role of Geeta Prasad further raises questions
regarding the completeness of the parties impleaded in the suit.
It is therefore submitted that the learned Trial Court, having
considered the rival pleadings and the evidence on record,
rightly dismissed the suit, and that no sufficient ground has
been made out for interference by this Court in the present first
appeal. Accordingly, the respondents prayed that the appeal be
dismissed and the impugned judgment and decree be affirmed.
13. Having considered the rival submissions
advanced on behalf of the parties and upon perusal of the
pleadings and the materials available on record, the point which
arises for determination in the present appeal is : “whether the
appellants have been able to establish that plaintiff no.1, Arjun
Prasad, and defendant no.1, Saryug Prasad, are the sons of one
and the same Gurusharan Ram and, consequently, whether the
appellants are entitled to claim a 66 paise share in the suit
properties?”
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14. At the outset, it would be apposite to bear in mind
that the jurisdiction of this Court in a first appeal under Section
96 of the CPC is both extensive and plenary. The first appellate
Court is the final Court of fact and law and is under an
obligation to independently reappraise and reassess the entire
oral and documentary evidence available on record, keeping in
view the pleadings of the parties, the issues framed, and the
findings recorded by the learned Trial Court. While due
consideration must be given to the reasoning adopted by the
learned Trial Court, the appellate Court is not precluded from
drawing its own conclusions on the evidence and determining
whether the findings under challenge are sustainable in law and
on facts. In the present appeal, therefore, this Court shall
examine the material evidence on record, particularly the
depositions of the witnesses and the documentary evidence
adduced by the parties, to determine whether the findings
recorded by the learned Trial Court with regard to the
relationship between the parties, the alleged adoption, the
genealogy, and the claim of unity of title and possession
warrant interference in the exercise of its first appellate
jurisdiction.
15. This Court has perused the materials available on
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record and at this stage it shall be appropriate to re-appreciate
the testimonies of the witnesses on behalf of the
appellants/plaintiffs.
16. PW-1, Binda Devi @ Meghni Devi, is the plaintiff
no. 4 herself, since she is an interested witness in the case, her
evidence has been scrutinized with utmost care and caution. It
is found that in her examination-in-chief as well as in cross-
examination, she has, in one way or the other, supported the
plaintiffs’ case. However, in paragraph no. 30 of her cross-
examination, this witness has categorically stated that Kashiram
had one son namely Gurusharan Ram.
17. PW-2, Chandra Deo Ram, brother of plaintiff no.
4, Binda Devi, deposed in his examination-in-chief that plaintiff
no.1, Arjun Prasad, and defendant no.1, Saryug Prasad, were his
nephews and that their grandfather, Govind Ram, belonged to
village Chainpura, District Gaya. He stated that Govind Ram
had a sister who was married to Kashiram of Karah, that
Kashiram had no children and had brought Gurusharan Ram,
son of Govind Ram, to his house and treated him as his son.
According to the witness, Kashiram possessed land at Karah
and Silao and also had a grocery business, and after his death,
his properties devolved upon Gurusharan Ram, who
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subsequently died leaving behind his wife and two sons, Arjun
Prasad and Saryug Prasad. He further stated that the parties
belonged to the same family and that Saryug Prasad was
managing the family affairs.
17.i. In his cross-examination, however, the witness
admitted that he had no documentary proof of the marriage or
the alleged relationship, had not seen the family registers of
either Chainpura or Karah Haiderganj, and could not produce
documentary evidence establishing that the two persons named
Gurusharan Ram were one and the same. He also acknowledged
that Chainpura and Karah Haiderganj were separate revenue
villages and that he had no personal business connection with
the family at Chainpura.
18. PW-3, Vijay Kumar, deposed in his examination-
in-chief that he knew Govind Ram of village Chainpura, who
had two sons, namely, Kanhai Ram and Gurusharan Ram, both
of whom had died. He stated that Gurusharan Ram had two
sons, Saryug Prasad and Arjun Prasad. He further testified
regarding the sale of a four-decimal plot of land, together with a
dilapidated tiled house situated thereon, by Kanhai Ram and
Saryug Prasad in favour of Chandravati Devi for a
consideration of Rs. 1,500/-, stating that, at the time of the
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transaction, Om Prakash, son of Kanhai Ram, and Arjun Prasad,
brother of Saryug Prasad, were minors and that the transaction
had taken place in his presence.
18.i. In his cross-examination, the witness stated that
Govind Sao had died around 1971 and he had no documentary
evidence concerning the genealogy of the family or the alleged
relationship between Kashiram and Govind Sao. He admitted
that he had never seen Kashiram or Gurusharan Ram of Karah
Haiderganj, although he had heard from Govind Sao that
Kashiram was his brother-in-law. He further admitted that he
had not seen the family register of Gurusharan Ram and was
unaware of several particulars concerning the genealogy and the
alleged death of Gurusharan Ram during the communal riots of
1946.
19. PW-4, Rajendra Prasad Singh, deposed in his
examination-in-chief that he knew Kashiram of Karah, who had
no children and had brought up Gurusharan Ram as his son. He
stated that Kashiram’s matrimonial home was at village
Chainpura, where Govind Ram resided, and, after Kashiram’s
death, his properties devolved upon Gurusharan Ram, whose
sons were Saryug Prasad and Arjun Prasad. He further stated
that Kashiram had a grocery shop and other properties at Karah.
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19.i. In his cross-examination, he admitted that Karah
and his own village were separate revenue villages and he had
visited Chainpura only a few times, without having any
substantial acquaintance with its inhabitants. He admitted that
he had never seen Govind Ram and his knowledge of the
latter’s family genealogy was derived from what Kashiram had
told him. Further, he admitted that he had not witnessed the
alleged adoption of Gurusharan Ram and had learnt about it
from Kashiram and Bihari Ram. He was also unable to state
whether any document evidencing the adoption existed and
conceded that Gurusharan Ram’s name had not been recorded
in any of Kashiram’s properties.
20. PW-5, Dr. Indradeo Prasad Gupta, deposed in his
examination-in-chief that he knew Gurusharan Ram and his two
sons, Saryug Prasad and Arjun Prasad, who, according to him,
resided jointly in the same household and with whom he had
social and familial relations. He further stated that Gurusharan
Ram’s ancestral house was at village Chainpura and Kashiram
of Haiderganj Karah was Gurusharan Ram’s maternal uncle by
marriage.
20.i. In his cross-examination, he admitted that he had
never visited Chainpura, had no acquaintance with its
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inhabitants, and had seen Gurusharan Ram only once during his
childhood, without having any conversation with him. He
further admitted that his knowledge regarding the relationship
between Kashiram and Gurusharan Ram was derived from
information supplied by his father and that he had neither seen
any genealogical document nor possessed personal knowledge
of Kashiram’s family.
21. PW-6, Barho Devi, deposed in her examination-
in-chief that Govind Ram of village Chandpura was her father
and that he had two sons, namely, Kanhai Ram and Gurusharan
Ram, and two daughters, namely, herself and Madho Devi. She
stated that Devaki Devi, the sister of Govind Ram, was married
to Kashiram of Karah, who had no issue and had taken
Gurusharan Ram into his household, treating him as his son.
According to her, Gurusharan Ram had two sons, Saryug
Prasad and Arjun Prasad, and, after Kashiram’s death, his
properties devolved upon Gurusharan Ram and, subsequently,
upon Saryug Prasad and Arjun Prasad, who continued to live
jointly without partition. She further stated that she knew
Kashiram personally, used to visit his house, and Gurusharan
Ram had died leaving behind his wife, Binda Devi, and two
sons.
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21.i . In her cross-examination, however, she admitted
that she had no documentary evidence to establish the alleged
relationship between Saryug Prasad and herself or to
substantiate the genealogy pleaded by the appellants. She also
stated that she had not attended Gurusharan Ram’s shradh
ceremony and could not specify how long before her
subsequent visit to her parental village he had died.
22. PW-7, Wasi Ahmed, deposed in his examination-
in-chief that he knew Saryug Prasad and Arjun Prasad and both
had properties at Karah and Silao. He stated that Kashiram and
his brother Bihari Ram had no children and Kashiram had taken
Gurusharan Ram, the son of his wife’s brother, into his
household as a foster son. He further stated that Gurusharan
Ram had two sons, Saryug Prasad and Arjun Prasad, and the
properties of Kashiram devolved upon Gurusharan Ram and,
after the latter’s death, upon his two sons. He further stated that
Saryug Prasad began looking after the properties after
Kashiram’s death, when Arjun Prasad was still young.
22.i. In his cross-examination, however, the witness
admitted that he had no personal knowledge of Gurusharan
Ram’s parentage, had never visited Kashiram’s matrimonial
home, and had neither witnessed the alleged adoption nor knew
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whether any document had been executed in that regard. He
was also unable to state whether, or in whose name, the
properties of Kashiram were recorded in the relevant revenue or
other official records. He admitted that he had come to depose
at the instance of Arjun Prasad.
23. PW-8, Arjun Prasad, plaintiff no. 1, deposed in his
examination-in-chief that he and defendant no. 1, Saryug
Prasad, were full brothers, being the sons of Gurusharan Ram
and Binda Devi, and they had a common interest in the
properties situated at Karah and Silao. He stated that
Gurusharan Ram, son of Govind Ram of Chandpura, had been
taken into the household of Kashiram of Karah as a foster son,
as Kashiram and his brother Bihari Ram had no children. He
further stated that the properties of Kashiram devolved upon
Gurusharan Ram and, after the latter’s death, upon Saryug
Prasad and himself, who continued to hold them jointly without
partition. He further deposed that Saryug Prasad was managing
the affairs of the family and the present suit had been instituted
because of disputes arising within the family.
23.i. In his cross-examination, however, the witness
admitted that he had not witnessed the alleged adoption, could
not state its date or the age of Gurusharan Ram at the relevant
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time, and had neither seen any document evidencing the
adoption nor produced any independent witness from
Chandpura to establish it. He further admitted that he had no
documentary evidence regarding the alleged relationship
between Govind Ram and Kashiram, the absence of children of
Kashiram, or the devolution of Kashiram’s properties upon
Gurusharan Ram. He was also unable to state whether
Gurusharan Ram’s name had been recorded in the relevant
revenue records after Kashiram’s death and admitted that he
had no documentary evidence to establish the joint acquisition
of the properties claimed by him.
24. PW-10, Chander Choudhary, deposed in his
examination-in-chief that he knew both parties and resided in
their neighbourhood. He stated that Saryug Prasad and Arjun
Prasad were full brothers, being the sons of the same
Gurusharan Ram, and he had also seen their mother. He further
stated that Kashiram, who had no children, had taken
Gurusharan Ram, the son of his wife’s brother, into his
household as a foster son, and the properties of Kashiram
devolved upon Gurusharan Ram and, thereafter, upon Saryug
Prasad and Arjun Prasad, who possessed the properties jointly.
24.i. In his cross-examination, he admitted that he had
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never visited Chandpura and had not seen the genealogical
records of either the family of Govind Ram or Kashiram.
Although he claimed to know that Gurusharan Ram of
Chandpura had come to Silao with his wife about 50–60 years
earlier, he was unable to state the age of Gurusharan Ram at
that time or provide specific particulars concerning his family.
He further admitted that he had no documentary evidence
establishing the relationship between Saryug Prasad and Arjun
Prasad or the alleged adoption of Gurusharan Ram by
Kashiram.
25. PW-11, Bihari Prasad, deposed in his
examination-in-chief that he knew both parties and had social
relations with them, including customary visits and
participation in meals and family occasions. He stated that
Saryug Prasad and Arjun Prasad were full brothers, being the
sons of Gurusharan Ram, and the properties situated at Silao
and Karah had originally belonged to Gurusharan Ram and
subsequently came into the joint possession of both brothers,
with Saryug Prasad managing the affairs of the family. He
further denied that Arjun Prasad had a brother named Geeta
Prasad and maintained that the Gurusharan Ram of Silao and
the Gurusharan Ram of Karah were one and the same person.
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25.i. In his cross-examination, he admitted that he had
not personally seen Gurusharan Ram about whom he deposed
and his knowledge of him was derived from information
supplied by his deceased father approximately 20–25 years
earlier. He further admitted that he had neither seen any
genealogical record nor any document relating to the properties
allegedly held by Gurusharan Ram, and he had no documentary
evidence to establish the relationship between the parties or
their joint ownership of the suit properties. He also admitted
that he had come to depose at the instance of Arjun Prasad.
26. PWs-9, 12 and 13 are formal witnesses.
27. Now, it is pertinent to re-appreciate the evidence
adduced by the respondents/defendants.
28. DW-1, Sheo Nandan Prasad, deposed in his
examination-in-chief that he knew both parties and stated that
Arjun Prasad of Chandpura and defendant no. 1, Saryug Prasad,
belonged to different families. He further stated that Kashiram
of Haiderganj Karah had a son, whose name he could not recall,
and three grandsons, of whom Saryug Prasad was one. He also
stated that Kashiram and his brother Bihari Ram had properties
and houses at Karah, as well as properties at Silao.
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28.i. In his cross-examination, he clarified that the
eldest grandson of Kashiram was Arvind, while he could not
recall the names of the other two. He further stated that
Kashiram was married into the family of Arjun Prasad and
Arjun and Saryug resided in the same house, Arjun having
come there at the age of approximately 10–12 years and
thereafter residing with Saryug. He also stated that both parties
had their maternal homes at Nardiganj.
29. DW-2, Saryug Prasad, defendant no.2, deposed in
his examination-in-chief that the genealogy furnished by the
plaintiffs was incorrect and, according to his own genealogy,
Budhan Ram was his great-grandfather, whose two sons were
Kashiram and Bihari Ram. He stated that Kashiram had a son
named Gurusharan Ram, who was his father, and his mother
was Malti Devi. He denied that plaintiff no.1, Arjun Prasad, was
his brother or Binda Devi (PW-1) was his mother, stating that
Arjun Prasad belonged to a different family of village
Chandpura, District Gaya. He further denied that Kashiram had
adopted Gurusharan Ram of Chandpura or that the latter had
any connection with the family or properties of Kashiram. He
further stated that Kashiram died in 1945, his parents died
during the communal riots of 1946, and Bihari Ram, who had
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no children, died on 18.02.1957. He claimed that, following the
death of Bihari Ram, he became the sole surviving heir and
obtained mutation of the properties in his name, with rent
receipts thereafter being issued in his favour. He also disputed
the plaintiffs’ claim to the properties situated at Karah and
Silao, stating that certain properties were ancestral, some had
been acquired by him independently, and others belonged to his
wife or sons. He further deposed that Arjun Prasad and his
alleged brother Geeta Prasad had come to Silao for
employment, that Arjun Prasad had worked as his taxi driver
and occupied a room in his house as a tenant, and the present
suit had been instituted after disputes arose over payment of
rent.
29.i. In his cross-examination, he reiterated that Arjun
Prasad and Geeta Prasad belonged to the family of the
Gurusharan Ram of Chandpura, whereas his own father was a
different person bearing the same name. He stated that his
parents had died during the communal riots of 1946-47. He also
stated that he had not maintained written accounts of his
business transactions and could not furnish specific particulars
of several properties, including their individual areas and
boundaries. He further admitted that the documentary material
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relating to certain properties was not available with him and
that he had not examined all the documents inherited from
Bihari Ram. He stated that he had visited Chandpura only after
institution of the suit to ascertain Arjun Prasad’s family
background and the information he obtained was based on
inquiries made from a local person.
30. DW-3, Mahendra Singh, deposed in his
examination-in-chief that he knew both parties and had seen the
suit properties, over which he had observed Saryug Prasad
exercising possession, whereas he had never seen Arjun Prasad
in possession thereof. He stated that Saryug Prasad was the only
son of Gurusharan Ram and that Arjun Prasad belonged to the
family of village Chandpura, having no relationship with
Saryug Prasad’s family. In his cross-examination, he admitted
that he had no personal relationship with Saryug Prasad’s
family and that his knowledge of Arjun Prasad’s status as a
tenant was derived from what Saryug Prasad had told him; he
had never witnessed Arjun Prasad paying rent.
31. DW-4, Brij Nandan Prasad, deposed in his
examination-in-chief that he knew Saryug Prasad, whose father,
according to him, was Gurusharan Ram and whose grandfather
was Kashiram. He stated that Saryug Prasad was the only son of
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Gurusharan Ram. He further stated that a school, namely, K.B.
Public School (Kashi Bihari Public School), was being run in
the ancestral house of Saryug Prasad at Karah and that he
himself was managing the school. He further stated that Saryug
Prasad had permitted him to run the school free of charge to
perpetuate the memory of his ancestors, with the responsibility
for maintenance resting upon the school management.
31.i. In his cross-examination, he admitted that he had
never seen either Kashiram or Gurusharan Ram and that his
knowledge concerning them was based on information received
from others. He stated that he had heard from his grandfather
approximately 15–20 years earlier that Saryug Prasad was the
only son of Gurusharan Ram, but acknowledged that he had no
close relationship with Saryug Prasad and had met him only
occasionally.
32. DW-5, Miskri Singh, deposed in his examination-
in-chief that he knew both parties and had known Darshan Ram
of his village, whose grandson, according to him, was Arjun
Prasad. He stated that Darshan Ram had one son and five
daughters, including Binda Devi, and Arjun Prasad had a
brother whose name he could not recall. He further stated that
he knew Saryug Prasad because both of them had earlier
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operated vehicles for hire and stated that Saryug Prasad had no
relationship with Darshan Ram.
32.i. In his cross-examination, he admitted that he had
no close connection with Darshan Ram’s family and was unable
to provide particulars regarding the names of all his daughters,
their marital relationships, or their descendants. He further
stated that he did not know the family relationships and
genealogies of several families residing there. He stated that he
had never resided at Silao and that his acquaintance with
Saryug Prasad arose from their respective activities in vehicle
operators’ unions approximately 35 years earlier. Significantly,
he admitted that he had never visited Saryug Prasad’s alleged
maternal home at Akbarpur or met the members of that family,
and his knowledge regarding the same had been derived from
Saryug Prasad himself.
33. DW-6, Uma Charan Ram, in his examination-in-
chief, deposed that he knew Ram Lal of Bauri Sarai, whose
daughter Rama Devi was his maternal grandmother and whose
brother was Govind Ram of Chainpura. He stated that Rama
Devi was the only sister of Govind Ram, though he was
unaware whether Govind Ram had another sister named Devaki
Devi. According to him, Ram Lal had two daughters and no
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son, and his properties devolved upon his two daughters, one of
whom was his mother.
33.i. In his cross-examination, he admitted that he had
visited Chainpura only once during his childhood, when his
maternal grandmother was ill, and had seen Govind Ram on
that occasion, but could not recall the house he had visited or
provide further particulars of the family. He further stated that
he had known Saryug Prasad for approximately two or three
years and was not acquainted with the members of his family.
34. DW-7, Shyam Kishore Prasad, in his
examination-in-chief, deposed that two mortgage deeds dated
07.03.1960, executed in the matter of Saryu Ram and Dwarika
Prasad, were written in his presence by the scribe, Bodh
Narayan Prasad. He identified the handwriting and signatures of
the scribe on the documents and stated that the deeds had been
prepared at the instance of Saryu Ram. He also identified the
witnesses to the first mortgage deed as Naurangi Ram and
Harvansh Singh, son of Naurangi Ram, and the document was
marked as Ext.-A (torn). The second mortgage deed was
incomplete and torn, with portions of two pages and an
intervening date missing, and was marked as Mark-X for
translation.
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34.i. In his cross-examination, he admitted that he
could neither read nor write Kaithi Hindi, the script in which
both mortgage deeds were written, and that the writing was
difficult to decipher. He further stated that he could not read the
name of the executant or identify the person who had executed
the documents. With regard to the torn document marked as
Mark-X, he admitted that the endorsement and signatures
appearing in the margin were illegible and appeared to have
faded completely.
35. DW-8, Hari Mahto, in his examination-in-chief,
deposed that Silao and Mauza Karah are adjacent villages and
he knew Kashiram and Bihari Ram, residents of Karah. He
stated that Kashiram had one son, Gurusharan Ram, who in turn
had one son, Saryu Ram. He further stated that Saryu Ram was
the sole male heir in his generation and had been in possession
of the ancestral properties as the exclusive owner, continuing in
such possession till the date of his deposition.
35.i. In his cross-examination, the witness stated that
he had known Kashiram and Bihari Ram since before 1946, as
they were engaged in the grain trade. However, he admitted that
he had no house or land in Mauza Karah and had no personal
relationship or regular social interaction with its inhabitants. He
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further admitted that, despite being acquainted with people
belonging to his own caste as well as the Bhumihar community
in Silao, he could not fully explain their genealogies or identify
their ancestors.
36. DW-9, Bishnu Dayal Prasad, in his examination-
in-chief, deposed that his father, Sukan Mahto, who had served
as a Chowkidari Sarpanch for Mauza Karah and Mauza Seema,
had died approximately forty years earlier. He identified ten
chowkidari receipts issued in the names of Kashiram and Bihari
Ram, marked as Exts.-B to B/9, as bearing his father’s
handwriting and signatures. He also identified seven receipts
issued in the name of Bihari Ram, marked as Exts.-B/10 to
B/16, as bearing the handwriting and signatures of his father.
36.i. In his cross-examination, he admitted that his
son was a tenant in Saryug Ram’s house and that he himself had
previously resided there as a tenant.
37. DW-10 is a formal witness.
38. In the present case, the principal controversy
concerns the identity and parentage of Gurusharan Ram, the
alleged adoption of Gurusharan Ram by Kashiram of Karah,
and the consequent claim of the appellants to a share in the suit
Patna High Court FA No.48 of 2006 dt.30-10-2026
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properties. The findings of the learned Trial Court must,
therefore, be tested against the evidence as a whole to
determine whether the appellants have established their
entitlement to the relief claimed.
39. The case of the appellants is that Govind Ram of
Chainpura had two sons, Kanhai Ram and Gurusharan Ram,
and that Gurusharan Ram was taken in adoption by Kashiram of
Karah, who allegedly had no children. According to the
appellants, the properties of Kashiram devolved upon
Gurusharan Ram and, thereafter, upon his sons, Arjun Prasad
(plaintiff no.1) and Saryug Prasad (defendant no.1), who
allegedly continued to hold the properties jointly. The
defendants dispute this genealogy and submitted that
Gurusharan Ram associated with Kashiram was his natural son
and that Arjun Prasad belongs to a separate family. Thus, the
appellants were required to establish not merely the existence of
persons bearing the name Gurusharan Ram, but also that the
persons referred to in the rival genealogies were one and the
same individual and that the appellants derived their claimed
interest in the suit properties through him. Similarity of names
or a general assertion of relationship cannot, by itself, establish
identity of parentage, adoption or succession to immovable
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property.
40. In Madhusudan Das v. Narayani Bai and Ors. ,
reported in (1983) 1 SCC 35 , the Hon’ble Supreme Court
reiterated that the person asserting adoption bears the burden of
proving the factum and validity of the adoption by reliable
evidence. The Hon’ble Apex Court observed as herein under:
“ 19. It is well settled that a person who
seeks to displace the natural succession to
property by alleging an adoption must
discharge the burden that lies upon him by
proof of the factum of adoption and its
validity (see A. Raghavamma v.A.
Chenchamma [AIR 1964 SC 136 : (1964) 2
SCR 933] ). It is also true that the evidence
in proof of the adoption should be free from
all suspicion of fraud and so consistent and
probable as to give no occasion for
doubting its truth (see Kishori Lal v.
Chaltibai [AIR 1959 SC 504 : 1959 Supp 1
SCR 698 : 1959 SCJ 560] ). Nonetheless
the fact of adoption must be proved in the
same way as any other fact.”
41. Since the alleged adoption is stated to have taken
place before the death of Kashiram in or about 1945, its validity
must be examined under the Hindu law applicable at the
relevant time, subject to proof of the parties’ governing personal
law. The provisions of the Hindu Adoptions and Maintenance
Act, 1956, cannot be mechanically applied to an adoption
alleged to have been completed before the Act came into force.
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In Lakshman Singh Kothari v. Smt. Rup Kanwar @ Rup
Kanwar Bai , reported in AIR 1961 SC 1378 , the Hon’ble
Supreme Court explained that the act of giving and taking is an
essential element of a valid adoption, although no particular
form of ceremony is prescribed. It observed in para 10 as herein
under:
“ 10. The law may be briefly stated thus:
Under the Hindu law, whether among the
regenerate caste or among Sudras, there
cannot be a valid adoption unless the
adoptive boy is transferred from one family
to another and that can be done only by the
ceremony of giving and taking. The object
of the corporeal giving and receiving in
adoption is obviously to secure due
publicity. To achieve this object it is
essential to have a formal ceremony. No
particular form is prescribed for the
ceremony, but the law requires that the
natural parent shall hand over the adoptive
boy and the adoptive parent shall receive
him. The nature of the ceremony may vary
depending upon the circumstances of each
case. But a ceremony there shall be, and
giving and taking shall be part of it. The
exigencies of the situation arising out of
diverse circumstances necessitated the
introduction of the doctrine of delegation;
and, therefore, the parents, after exercising
their volition to give and take the boy in
adoption, may both or either of them
delegate the physical act of handing over
the boy or receiving him, as the case may
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be, to a third party.”
42. At the same time, in L. Debi Prasad v. Tribeni
Devi and Ors. , reported in (1970) 1 SCC 677 , the Hon’ble
Supreme Court recognised that, in the case of an ancient
adoption, direct evidence of the ceremony may be unavailable
and that long-standing recognition, family conduct and
surrounding circumstances may assume considerable
significance. Accordingly, the appellants’ claim cannot be
rejected merely because no witness witnessed the adoption; the
question is whether the evidence, considered cumulatively,
establishes the alleged adoption and the consequent chain of
succession.
43. Upon examination of the oral evidence adduced
on behalf of the appellants, it appears that PW-1, Binda Devi @
Meghni Devi is the plaintiff no. 4 herself, since she is an
interested witness in the case, her evidence has been scrutinized
with utmost care and caution. It is found that in paragraph no.
30 of her cross-examination, this witness has categorically
stated that Kashiram had one son namely Gurusharan Ram.
This statement clearly establishes that when Kashiram already
had a biological son, the question of adopting another son does
not arise. This statement further proves that there were two
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persons bearing the same name Gurusharan Ram, one was a
resident of Gaya district and the other was a resident of Nalanda
district. PW-2, Chandra Deo Ram in his cross-examination
failed to substantiate the plaintiff case and in paragraph no. 16
of his cross-examination he has clearly stated that Binda Devi is
not called or known as Meghni Devi. This clearly create doubt
with respect to the identity of Plaintiff No. 4 who was herself
deposed as Meghni Devi. PW-4, Rajendra Prasad Singh render
the fact doubtful that Kashiram has adopted Gursharan Ram
because this witness has started in his deposition that Kashiram
had kept Gursharanram with him in the manner of a son. PW-6,
Barho Devi, in paragraph no. 9 of her cross-examination
deposed that Gurusharan ram died at Chainpura in the district of
Gaya and his Shraddha ceremony was also performed there
itself which render doubt that whether Kashiram had actually
adopted Gurusharan Ram. Also, PW-8 in paragraph no. 21 of
her cross-examination has admitted that no document of
adoption was executed. PW-10 in paragraph no. 9 of his cross-
examination started that Gurusharan Ram was the son of
Kashiram and created the impression that Gurusharan Ram was
not the adopted son of Kashiram. The analysis of oral evidences
adduced by the plaintiff clearly demonstrate several
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inconsistencies which distinctly negates the fact of adoption
and establish that the plaintiffs have no relationship with the
defendants, no common ancestor, no coparcenary and no right
to partition. On the other hand all the defendant witnesses had
fully supported and substantiated the defendant case both in
examination-in-chief and cross-examination. The testimony
demonstrates that the asserted relationships between Plaintiff
No. 1 and Defendant No.1 require reliable corroboration.
Moreover, the defendants’ evidence is not conclusive merely
because it challenges the appellants’ version; nevertheless, any
deficiencies in that evidence do not relieve the appellants of the
burden of proving the foundational facts of their claim.
44. The principle governing ancient adoption, as
explained in Devi Prasad (supra) , assumes particular
importance in the present case. Long and consistent recognition
of an alleged adoptee as a son, treatment by the alleged
adoptive father as his own child, and contemporary family or
property transactions may provide relevant evidence when
direct proof of the adoption ceremony is no longer available.
The appellants rely upon the assertions that Kashiram had no
children, that Gurusharan Ram was accepted as his son, and that
the properties subsequently devolved upon Gurusharan Ram
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and his sons. However, the evidence must establish a
sufficiently consistent course of recognition rather than merely
repeat the same assertion. In the present case, there are several
inconsistencies appear in the deposition of the plaintiff
witnesses which shows failure on the part of plaintiff to
substantiate his case. The evidence, as presented, does not
sufficiently establish through independently corroborated
circumstances the identity of the Gurusharan Ram alleged to
have been adopted by Kashiram and the subsequent devolution
of the suit properties. This conclusion does not rest upon the
absence of a registered adoption deed alone; it follows from the
cumulative deficiencies in the evidence of adoption, identity
and succession.
45. Ext.-1, the registered sale deed dated 28.09.1972,
is a material document and must be given due consideration.
According to the evidence of PW-3, the transaction concerned
four decimals of land and a dilapidated tiled house sold to
Chandravati Devi for Rs. 1,500, with Saryug acting on his own
behalf and as guardian of his minor brother Arjun. The
description of Arjun and Saryug as brothers is relevant evidence
in support of the appellants’ assertion concerning their
relationship. However, the evidentiary effect of the deed must
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be confined to the facts it actually records. The recital may
support the relationship described in that transaction, but it does
not, by itself, conclusively establish the identity and parentage
of Gurusharan Ram, his alleged adoption by Kashiram, or the
devolution of all the properties included in the present partition
suit. The deed must be read alongside the other evidence
concerning the source of title and the competing genealogies.
Proof of a sibling relationship between Arjun and Saryug does
not automatically establish that the suit properties belonged to
Kashiram or that the appellants acquired the claimed 66-paise
share through the alleged adoption. Moreover, Ext. 1, the 1972
sale deed, does not help the plaintiffs. It concerns land at
Chainpura, the plaintiffs’ village, not the defendant. Its
signature is in Devanagari, whereas Defendant No. 1 knew only
Kaithi, as shown by Ext. A (the 1960 rehan-nama) and his
signatures on the written statement and vakalatnama.
46. Ext.-3, the school admission register which show
only that the father’s name was Gurusharan Ram and do not
demonstrate which Gurusharan., and Exts.-7 and 8, the voter
list and Gram Panchayat family register, must likewise be
evaluated according to their actual contents, the source of the
information recorded and the purpose for which the records
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were maintained. Entries in official or institutional records may
be relevant to the facts recorded therein, but they do not
automatically establish every disputed relationship or confer
title to immovable property. Their evidentiary value depends
upon whether they reliably connect the relevant individuals and
corroborate the specific genealogy pleaded by the appellants.
Exts. 7 and 8 (voter list and family register) relate to different
villages and contradict each other, and the Block Development
Officer reported that no family register exists for Karah
Haidarganj. D.W.-9, Bishnu Dayal Prasad, identified the
handwriting and signatures on the chowkidari receipts marked
Exts. B to B/16. These documents must be assessed according
to what their contents actually establish and cannot be treated as
conclusive proof of genealogy, succession or title merely
because certain names or signatures appear on them. The
documentary evidence, therefore, has to be considered
cumulatively with the oral evidence rather than in isolation.
47. The burden of proving the relationship, the
adoption and the jointness lay squarely on the plaintiffs under
Sections 101 and 102 of the Indian Evidence Act, 1872. The
plaint gives no date, year or circumstances of the alleged
adoption of Gurusharan Ram by Kashi Ram. The burden of
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proving the asserted title and share remains upon the appellants,
and the deficiencies in the defence evidence cannot substitute
for proof of their own case. Further, only a coparcener can seek
partition, and that needs a common ancestor, which the
plaintiffs failed to establish. Plaintiff No. 1 came to Silao for
business around 1964 and lives as a tenant in Defendant No. 1’s
house, while the defendants proved their own possession.
The Trial Court examined each witness and exhibit, applied the
burden of proof correctly, and found on the evidence that the
plaintiffs failed to prove their case. On re-appreciation of the
evidence, no interference is warranted. A plaintiff in a suit for
partition must prove his own title and cannot take advantage of
weaknesses in the defence. The learned Trial Court rightly
applied this principle that the plaintiffs must prove their case on
their own strength. A plea of adoption, which displaces the
natural line of succession, must be proved strictly, by clear,
cogent and consistent evidence of the giving and taking and of
the capacity of the adopter. The learned Trial Court rightly held
that the very factum of adoption is doubtful. The suit rested on
the coincidence of names. The adoption was not proved. Even
the plaintiffs’ own witnesses were interested or contradicted
themselves and (PW 1, 4, 10) stated that Kashiram had a son,
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and there was no godnama (deed of adoption), date or year of
adoption. The plaintiffs suppressed the existence of their real
brother Geeta Prasad Exts. G to K, the sales-tax notices, fine
receipts, tax token and road permits, prove that Arjun Prasad
and Geeta Prasad are brothers and so did not come with clean
hands. He was also a necessary party who was not joined. Joint
possession was not proved, as Exts. 7 and 8 relate to different
villages and are doubtful.
48. A decree for partition necessarily presupposes
proof of the claimant’s proprietary interest in the properties
sought to be partitioned, the source from which that interest is
derived and the share to which the claimant is entitled. In the
present case, the appellants have asserted that the suit properties
belonged to Kashiram and devolved upon Gurusharan Ram and,
thereafter, upon his sons. However, the evidence does not
satisfactorily establish the complete chain connecting
Kashiram, the alleged adopted Gurusharan Ram and the
appellants’ claimed interest in the suit properties. Ext.-1
provides evidence of the relationship described in a particular
transaction, but does not independently prove the entire
genealogy or title to all the properties. The remaining
documentary evidence, as described, does not sufficiently
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bridge the gap between the rival genealogies, while the oral
evidence concerning the adoption and devolution of the
properties suffers from material limitations in the witnesses’
knowledge and corroboration. The objection concerning non-
joinder of Geeta Prasad must be considered separately in light
of the pleadings and whether he is shown to have an interest
that would be directly affected by the decree. However, the
failure to establish the foundational genealogy and
consequential proprietary interest is sufficient to defeat the
appellants’ claim, without treating non-joinder as the sole
ground for dismissal.
49. In Santosh Hazari v. Purushottam Tiwari ,
reported in (2001) 3 SCC 179 , the Hon’ble Supreme Court
emphasised that a first appellate Court must independently
assess the evidence, address the material issues and record
reasons for its conclusions. Having undertaken that exercise,
and keeping in view the principles governing proof of adoption
laid down in Lakshman Singh Kothari (supra) , Madhusudan
Das (supra) and Devi Prasad (supra) , this Court finds that the
appellants have failed to establish by sufficiently reliable and
corroborated evidence the identity of the Gurusharan Ram
through whom they claim, the alleged adoption by Kashiram
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and the consequential devolution of the suit properties. The
conclusion is not based merely upon the absence of direct
evidence of the adoption ceremony or a registered adoption
deed, but upon the cumulative assessment of the oral and
documentary evidence and the failure to establish the complete
chain of succession necessary for the claimed share.
50. After considering all the oral and documentary
evidences available on record it clearly lean towards the fact
that the factum of adoption has not been established. The
plaintiff fails to prove its own case on their own strengths.
From the evidence produced in the case, it is also clearly
established that the father of Defendant No. 1 was also named
Gurusharan Ram, but he was a resident of village Karah
Haiderganj, Police station Silao, District Nalanda. The only
basis of the suit is the similarity and coincidence of the fathers’
names. Taking fraudulent advantage of this mere similarity of
name, the plaintiffs have filed the present suit, although they
otherwise had no legal cause of action to institute the same.
51. Consequently, the appellants have failed to
demonstrate any material error in the judgment and decree
passed by the learned Trial Court warranting interference in this
appeal. The judgment and decree dated 28.01.2006 passed by
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the learned Subordinate Judge-VII, Biharsharif, Nalanda, in
Title Suit No. 102 of 1997 are affirmed.
52. The present First Appeal is, accordingly,
dismissed.
53. The interlocutory application(s), if any stands
disposed of, if any interim order or injunction order passed
regarding disputed land deemed to be set aside in the light of
above findings.
54. Let the trial court records be transmitted forthwith
along with a copy of this judgement to the concerned court for
the needful.
55. There shall be no order as to costs.
(Ramesh Chand Malviya, J)
Mayank/-
AFR/NAFR NAFR
CAV DATE 30.09.2026
Uploading Date 30.10.2026
Transmission Date