JUDGMENT

Mungeshwar Sahoo, J.

1. The plaintiff has filed this First Appeal against the Judgment dated 30.07.2007 and the decree following thereupon signed on 10.08.2007 by Sri Raj Kumar Sinha, the learned Sub Judge Vth, Muzaffarpur in Title Suit No. 346 of 1994 dismissing the plaintiff's suit.

2. The plaintiff appellant filed the aforesaid title Suit No. 346 of 1994 for declaration of his title alleging that the suit property detailed in Schedule I and II belonged to Girish Chandra Prasad. In the revisional survey record of right, the widow of Girish Chandra Prasad, namely, Tarawati Devi got the suit property recorded in the name of her grand son Umashanker Prasad as the father of Umashanker Prasad, namely, Suresh Chandra Prasad had pre-deceased Girish Chandra Prasad. The said Umashanker Prasad also died during life time of Tarawati Devi in the year 1965. The plaintiff being the only male member being the brothers son performed Shradh and started living with the widow Tarawati Devi in the residential house on plot No. 123 in village Bairia. The plaintiff being the only legal heir begun to look after Tarawati Devi. He used to appropriate the usufruct of the suit properties and also used to sell the fruits of mango orchard and lichi. The plaintiff is an employee at Bhilai. He wanted to take her to Bhilai but she did not go and lastly she died in the month of September 1985 in village itself. In absence of the plaintiff, the villagers buried her. The plaintiff came from Bhilai and performed Shradh. After her death, plaintiff begun to stay in the residential house and cultivated the suit properties without any interruption. He was also realizing rent from the tenant. The plaintiff filed application for grant of rent receipt in his name and also obtain rent receipt.

3. The further case of the plaintiff is that when he was at Bhilai, he leant that the defendant is trying to obtain rent receipt in collusion with the Anchal karamchari. The plaintiff went to the office of Circle Officer, Kanti and prayed for cancellation of rent receipt in the name of defendant which was allowed. The defendant, Baidhnath Prasad Verma filed mutation appeal. The plaintiff then came to know that the defendant is claiming title over the suit property alleging that the suit property belong to Tarawati Devi and the defendant being the only legal heir as he is the son of Laxmi Devi, sister of Tarawati Devi inherited the property. When the plaintiff was at Bhilai, the defendant started cutting the trees and selling the same and, therefore, the plaintiff filed criminal case and thereafter the present suit was filed for declaration of title. The genealogical table has been mentioned by the plaintiff showing his relationship with Girish Chandra Prasad. According to the genealogical table, Mahavir Prasad had two sons, namely, Tej Pratap Narayan and Jagdambi Prasad. Tej Pratap Narayan had 4 sons, Rudra Narayan, Mahendra Prasad, Kanta Prasad and Kanji Prasad. Rudra Narayan has two daughters, both of them have died. Kanta Prasad and Kanji Prasad also died issueless and Mahendra Prasad had a son Shailendra Prasad who is plaintiff. The second son of Mahavir Prasad, namely, Jagdambi Prasad had a son, namely, Girish Chandra Prasad. Tarawati Devi is the widow of Girish Chandra Prasad. Suresh Chandra Prasad is son of Girish Chandra Prasad and Uma Shanker Prasad is the son of Surendra Chandra Prasad. Therefore, according to this genealogical table, the plaintiff is the nearest legal heir of Girish Chandra Prasad on the death of Tarawati Devi.

4. On being noticed, the defendant appeared and claimed title over the suit property on the ground that the suit property belonged to one Dhanukdhari Sahay, S/o Khooblal Prasad. He had one son and 3 daughters, namely, Basudeo Prasad, Tarawati Devi, Laxmi Devi, mother of the defendant, Rajan Devi. Rajan Devi died. On the death of Dhanukdhari Sahay, the property devolved upon his son and daughters. His son Basudeo Prasad died in 1943 so the entire property devolved on Tarawati Devi and Laxmi Devi. The property was inherited by Tarawati Devi from her father and on her death, the property was inherited by the defendant being the son of sister of Tarawati Devi. Since the property belonged to Dhanukdhari Sahay which was inherited by Tarawati Devi, on the death of Tarawati Devi, the property will revert back to the heirs of her father. According to the defendant, since the property is naiher property of Tarawati Devi, the genealogical table given by the plaintiff is irrelevant. All the other allegations were also denied by the defendant.

5. On the basis of the above pleadings, the learned Court below framed as many as 9 issues. The material issues are issue No. 7 & 8. Issue No. 7 is as to whether the genealogical table given by the plaintiff in the plaint is correct? And Issue No. 8 is whether the plaintiff is entitled for declaration of his title on disputed property described in Schedule I?.

6. After trial, the learned Court below came to the conclusion that the plaintiff failed to adduce cogent evidence in support of the genealogical table and, therefore, the Issue no. 7 is decided against the plaintiff and likewise while deciding Issue No. 8, the learned Court below came to the conclusion that the plaintiff has not produced any acceptable evidence regarding the acquisition of the property by Girish Chandra Prasad and, therefore, Issue No. 8 is also decided against the plaintiff. While giving finding on Issue No. 8, the learned Court below also found that the defendants have also not adduced any evidence regarding their claim that the property belonged to parents of Tarawati Devi.

7. The learned senior counsel appearing on behalf of the appellant submitted that it is the specific pleading of the plaintiff in the plaint that he is the son of brother of Girish Chandra Prasad and showing his relationship, he specifically mentioned the genealogical table in the plaint. To the contrary, this genealogical table and the statement that the plaintiff is the nearest agnate of Girish Chandra Prasad was not denied in the written statement specifically by the defendant. According to the defendant, the only case pleaded that the property belonged to parents of Tarawati Devi and, therefore, the genealogical table of the plaintiff is irrelevant but the learned Court below framed Issue No. 7 which was not raised by the defendant and that issue is not required to be decided because the defendant has not denied the same. The learned counsel further submitted that if the allegation of the plaintiff is not denied impliedly, it will mean that the defendant admitted the allegation and, therefore, the plaintiff is not required to prove the same. But the learned Court below has wrongly framed the said issue and decided the said issue which was not disputed. The learned counsel further submitted that the plaintiff have produced oral evidences as well as documentary evidences to show that the property belonged to Girish Chandra Prasad but the learned Court below discarded all those evidences on the ground that the plaintiff failed to prove the genealogy. According to the learned counsel, the learned Court below approached the case in wrong angle.

8. The learned counsel further submitted that the learned Court below himself observed that the defendants failed to adduce either oral evidence or documentary evidences in support of their claim that the property belonged to Dhanukdhari Sahay but even then dismissed the plaintiff suit without assigning any reason as to why the case of the plaintiff was not acceptable. On these grounds, the leaned counsel submitted that the impugned Judgment and Decree are liable to be set aside.

9. On the other hand, the learned senior counsel, Mr. Sheonandan Roy appearing on behalf of the respondent submitted that there is no illegality in the impugned Judgment and Decree and the learned Court below has rightly dismissed the plaintiff's suit because unless he proves that he is agnate of Girish Chandra Prasad, he is not entitled for declaration of his title. The learned senior counsel further submitted that none of the evidences adduced by the plaintiff is reliable and the oral evidences of the plaintiff are not admissible in view of Section 50 of the Indian Evidence Act because the witnesses have not disclosed their special knowledge regarding relationship of plaintiff with Girish Chandra Prasad. The learned counsel further submitted that the plaintiff will stand or fall on the merits of his case and he cannot take advantage of weakness of the defendant and, therefore, the learned Court below has rightly dismissed the plaintiff's suit.

10. In view of the above contentions of the parties, the points arises for consideration in this Appeal is as to whether the plaintiff is entitled for declaration of his title over Schedule I property and whether the impugned Judgment and Decree are sustainable in the eye of law.

11. From the pleadings of the parties as stated above, the case of the plaintiff is that the property belonged to Girish Chandra Prasad and in the revisional survey record of right, it is recorded in the name of Umashanker Prasad, grand son of Girish Chandra Prasad. On the death of Girish Chandra Prasad, his widow Tarawati Devi, became the absolute owner of the property and she died in the year 1985. On her death, the property devolved on the plaintiff. According to the defendant, Tarawati Devi inherited the property from her father. The property never belonged to Girish Chandra Prasad. According to the defendant, Dhanukdhari Sahay was the owner of property who had a son and 3 daughters. The son Basudeo Prasad and the 3rd daughter Ranjan Devi died issueless and, therefore, the property was inherited by the two daughters of Dhanukdhari Sahay. The defendant is son of Laxmi Devi, one of the daughter, and on the death of Tarawati Devi, the defendant became the absolute owner of entire property of Dhanukdhari Sahay.

12. In view of the above cases of the parties, it is clear that the plaintiff is claiming that the property belonged to Girish Chandra Prasad whereas according to the defendant the property was inherited by Tarawati Devi from her parents side. This is the only question to be decided in this Appeal. In the plaint, the plaintiff clearly mentioned the genealogical table showing his relation with Girish Chandra Prasad and Tarawati Devi. This genealogical table and the statement of the plaintiff with regard to relationship is not specifically denied in the written statement anywhere. It is said that since the property is inherited by Tarawati from her father, the genealogy of the plaintiff is irrelevant. In such circumstances, the parties were not in dispute regarding either the relationship of plaintiff with Girish Chandra Prasad or the relationship of Tarawati Devi with Dhanukdhari Sahay. The only controversy between the parties is whether the property belonged to Girish Chandra Prasad or it belonged to Dhanukdhari Sahay. It appears that the learned Court below framed Issue No. 7 which is as to whether the plaintiff has been able to prove his genealogical table given in the plaint. As stated above, there is no specific denial in the written statement of the defendant. Order 14 provides that issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other and each material proposition affirmed by one party and denied by the other shall form the subject of the distinct issue. In the present case, it is reiterated that the plaintiff's pleadings is not denied by the defendant and, therefore, on this question, there was no controversy between the parties. In such circumstances, Issue No. 7 was not the proper issue and that issue does not arise in this case for determination. Moreover, P.W.3, plaintiff himself in paragraph 5 and P.W.10 at paragraph 6, P.W.14 at paragraph 2 to 6 have clearly stated on the point of genealogical table and relationship of plaintiff with Girish Chandra Prasad.

13. In view of the above facts and in view of the evidences of the witnesses and in view of the fact that this pleading of the plaintiff is not specifically denied by the defendant, in my opinion, the plaintiff's case about his agnatic relationship with Girish Chandra Prasad stands proved. However, this controversy was not between the parties. When the defendant did not deny this question, then it was not necessary for the plaintiff to adduce evidence. The learned Court below without examining this aspect of the matter and without considering the fact that, there is no denial laboured much to frame and decide Issue No. 7 and although there is no denial but then Issue No. 7 was decided against the plaintiff which is, in my opinion, wrong because the learned Court below approached the case in wrong angle. Here, there is no question of taking any advantage of weakness of defendants arises. The plaintiff is not required to prove every allegation of fact. The plaintiff is required to prove only those facts which has been specifically denied and because of that denial an issue is raised. Admitted facts needs no proof.

14. In view of my above discussion, the finding of the learned Court below regarding Issue No. 7 is hereby reversed and it is found that the plaintiff is the legal heir of Girish Chandra Prasad.

15. As stated above because this issue was not between the parties, the plaintiff suit will not be decreed only because he is heir of Girish Chandra Prasad. The main issue between the parties is whether the property belonged to Girish Chandra Prasad or belonged to Dhanukdhari Sahay. If it belonged to Girish Chandra Prasad, then certainly the property will devolve on plaintiff and if it is the property of Dhanukdhari and Tarawati inherited from her father Dhanukdhari Sahay then certainly, the defendant will inherit the property and not the plaintiff.

16. To prove this fact the plaintiff as well as the defendants have adduced evidences. The plaintiff witnesses P.W.3 at paragraph 4, P.W.4 at paragraph 3, P.W.10 at paragraph 5, P.W.13 at paragraph 4, P.W.14 at paragraph 6, all have stated that the property belonged to Girish Chandra Prasad. In addition to these oral evidences, the plaintiff has also produced Ext.1 to 1.J which are rent receipt in the name of plaintiff and Ext.1.K to 1.M are the rent receipts in the name of Girish Chandra Prasad. Ext.13 series are the record of right which is admittedly in the name of Umashanker Prasad, the grand son of Girish Chandra Prasad.

17. In a decision reported in 1954 P.L.J.R 225, (Salabat Mahata v. Smt. Malti Mahatani), this Court has held that the entry in the records of rights gives rise to the presumption that the recorded person was the raiyat in the year of its final publication and a Court of fact is entitled to come to the conclusion on the basis of the entry in the survey khatiyan that at the time, it was made recorded tenant had an interest in the land. In view of the above settled principal of law, the entry in the survey khatiyan Ext.13 series give presumption in favour of the plaintiff. This presumption of a particular state of affairs will be presumed to exist unless the contrary is proved or the presumption is rebutted by cogent evidences. In the present case, the witnesses as discussed above have stated that the property belonged to Girish Chandra Prasad. The record of rights shows that it is recorded in the name of his grand son. Therefore, the presumption is that the property is recorded in the name of a person who has interest in the property. This presumption will continue until the contrary is proved. Therefore, in this case, the defendant is required to adduce cogent evidence to rebute this presumption. The plaintiff's case cannot be thrown only on the ground that he will not be allowed to take advantage of weakness of the defendant. As stated above in law the presumption is in favour of the plaintiff. In the evidences except the bald statement of some of the witnesses that the property belong to Dhanukdhari Sahay, nothing has been brought on record in support of the claim of the defendant. The learned Court below also in paragraph 13 has clearly mentioned that all the 16 witnesses examined on behalf of the defendant have failed to state anything regarding the fact that property belonged to parents of Tarawati Devi. However, the learned Court below nonsuited the plaintiff on the ground that the plaintiff failed to prove genealogy. Again, it is stated that the approach of the learned Court below is wrong. It appears that the learned Court below has not properly appreciated the case of the parties and the issues in controversy between the parties.

18. The learned counsel for the respondent submitted that the evidences of the plaintiff regarding relationship is not admissible under Section 50 of the Evidence Act. As discussed above in the present facts and circumstances of the case, Section 50 of the Evidence Act is not applicable.

19. In view of my above discussion, I find that the plaintiff has been able to prove his title over the suit property. The finding of the learned Court below on Issue No. 8 is, therefore, hereby reversed. I find that the plaintiff is entitled for declaration of his title.

20. The learned counsel for the respondent submitted that the purchaser who had been added subsequently in this Appeal have purchased the property from the defendant. So far this submission is concerned, it may be mentioned here that if the defendant had no title then there is no question of transferring any title or interest or possession by the defendant to the transferee arises.

21. In view of my above finding, I ultimately came to the conclusion that the impugned Judgment and Decree are not sustainable in the eye of law. Accordingly, this First Appeal is allowed and the impugned Judgment and Decree are set aside. The plaintiff-appellant's suit is decreed. In the facts and circumstances of the case, the parties shall bear their own costs.