MINATI BHADRA & ORS.    (Appellants)  Vs.  DILIP KR. BHADRA & ORS.   (Respondents)

S.A. 406 of 2016

(Delivered by JUSTICE SIDDHARTHA ROY CHOWDHURY)

Facts: Challenge in this appeal is to the judgement and decree passed by Learned Additional District Judge, Murshidabad in Title Appeal No. 14 of 2013 passed on 16th March, 2016 by the impugned judgement learned Appellate Court was pleased to set aside the order of dismissal passed by learned Trial Court dated 27th September, 2012 and decreed the suit in the preliminary form.

Issue: Whether oral testimony is sufficient to rebut the probative value of exhibit when documentary evidence is available?

Arguments on behalf of counsel for appellant:

Mr. Prantick Ghosh, learned Counsel for the appellant impeaching the impugned judgement submits that learned First Appellate Court failed to appreciate the evidence on record. It is submitted by Mr. Ghosh that the plaintiff Dilip Kumar Bhadra was not the biological son of Chabi 4 Rani Bhadra and Aswini Bhadra. Chabi Rani Bhadra did not have any child. It is admitted by Mr. Ghosh that Malati Sarkar who happens to be the sister-in-law of Chabi Rani adduced evidence as D.W. 2. Her husband was the elder brother of Chabi Rani and as D.W. 2 she stated on oath that Chabi Rani had no issue. Malati Sarkar had no reason to adduce evidence denying her relationship with plaintiff. She spoke the truth and the truth is that Chabi Rani had no issue. 5 11. It is further adverted by Mr. Ghosh that P.W. 2 was thoroughly crossexamined and she stood the test of cross-examination. The plaintiff, since has failed to adduce any evidence to prove that he was the biological son of Chabi Rani Bhadra, learned First Appellate court had no reason to pass the judgement impugned ignoring the testimony of D.W. 2.

Arguments on behalf of counsel for respondents:

Refuting such contention Mr. Rwitendra Banerjee, learned Counsel for the respondent submits that learned First Appellate Court was absolutely justified; rather learned First Appellate Court was left with no other option but to reverse the judgement of learned Trial Court because of the admission made by defendant no 1 in her oral testimony as D.W. 1. Smt. Minati Bhadra while adducing, during cross-examination stated that “Dilip was not living with his father Aswini at the time of my marriage with Aswini”. It is further contended by Mr. Banerjee that Dilip appeared in the examination conducted by Board of Secondary Education 10 and he has filed his Admit Card for the year 1976, 27 years prior to the institution of suit Exhibit-7, 8, 8/1 and 8/2 are sufficient to prove the relationship of Dilip with Aswini. That apart in various documents admitted as Exhibit-11, Exhibit-12 and Exhibit-13, came into existence during the life time of Amulya are sufficient to establish the relationship between Dilip and Aswini. It is further contended by Mr. Banerjee that Exhibit-A the title deed produced by the defendants was executed on 21st August, 2002 and registered on 26th August, 2002.

Held: The court dismissed the appeal and held that, “I am of the view that oral testimony of D.W. 2 is not sufficient to belie or outweigh the evidentiary value of Exhibit-7, 8 and 9 which unerringly indicate the relationship between Aswini and Dilip as father and son. Therefore, I do not find any reason to interfere with the judgement impugned. The appeal does not merit any consideration and is dismissed however, without cost. Pending applications, if any, stand disposed of.”