Madhya Pradesh High Court
Dalso Bai W/O Budhoolal Gond vs Halko Bai And Ors. on 12 July, 2007
Author: A.K. Shrivastava
Bench: A.K. Shrivastava
JUDGMENT A.K. Shrivastava, J.
1. The plaintiff, feeling aggrieved by the judgment and decree dated 9th July, 1993, passed by 1st learned Additional District Judge, Mandla in Civil Appeal No. 2-A/90 allowing the appeal of defendants and thereby dismissing the suit of plaintiff, has preferred this second appeal.
2. In brief, the case of plaintiff is that the original male member of the family was Durgu who was having two sons namely Sumera and Bahadur. Ratni Bai was the wife of Sumera. However, she remarried to Bahadur. From the wedlock of Bahadur and Ratni Bai one son namely Ranmat was born. Ranmat died issueless. Durgu, Sumera and Bahadur have died, as a result of which the suit property which is agricultural land and description whereof has been mentioned in the plaint, was devolved in Hanumat who is the son of Sumera. Indeed, the original plaintiff is Hanumat. However, on account of his death, Dalso Bai being her daughter and L.R. was brought on record as plaintiff.
3. It is the further case of plaintiff that after the death of Bahadur, Ratni Bai who was earlier the wife of Sumera and after the death of Sumera remarried to Bahadur, solemnized third marriage with one Barati from whom Imrat was born. According to the plaintiff, Imrat started living with his mother Ratni along with Hanumat and by taking undue advantage, got his name endorsed in revenue record along with Hanumat, though, Dalso Bai the daughter of Hanumat became sole owner of the suit property after the death of her father Hanumat. According to the plaintiff, since Ranmat was not having any heir, his right would devolve in Hanumat and from Hanumat the right in suit property would devolve to Dalso Bai. The present suit has been filed for declaration and possession of the suit property.
4. The defendants refuted the plaint averments and pleaded that the suit property was owned by Ranmat who is the son of Bahadur and contended that Sumera was not having any right, title and interest in the suit property because he was not the son of Durgu who was the original male member of the family. After the death of Bahadur, Ranmat succeeded the suit property. Ranmat executed a will on 6/5/1977 in favour of defendant No. 2-Antram and as such by virtue of the will defendant-Antram became the Bhumiswami. The defendants are possessing the suit property for more than 12 years and, therefore, the suit is time barred.
5. The defendants also challenged the paternity of plaintiff Dalso Bai and pleaded that her mother was one Chhita Bai and father was Triloka and not Hanumat and, therefore, plaintiff-Dalso Bai is not having any right, title and interest in the suit property.
6. Learned trial Court framed necessary issues and after recording the evidence of the parties came to hold that plaintiff- Dalso Bai is having share in the suit property and defendant Baisakhu @ Antram is the owner of share. Learned trial Court further directed to deliver the possession of share to the plaintiff and further directed that the revenue record may be amended accordingly.
7. The defendants feeling aggrieved by the judgment and decree passed by learned trial Court preferred first appeal which has been allowed and the suit of plaintiff has been dismissed. Learned first appellate Court held that deceased plaintiff-Hanumat was having a daughter Dalso Bai who after the death of plaintff- Hanumat was substituted as plaintiff. Hanumat was the son of Sumera. But, Sumera was not the son of Durgu who was original male member of the family. Learned first appellate Court also came to hold that indeed Bahadur was the son of Durgu whose son was Ranmat and who bequeathed the property in favour of defendant-Antram.
8. In this manner, this appeal has been filed by the plaintiff.
9. This Court on 14/9/1993 admitted this second appeal on the following substantial questions of law:
(1) Whether, on the face of the documents filed by both the parties, the lower appellate Court was right in holding that the property in suit was not recorded in the name of Sumera and that Sumera had no right, title and interest in the suit property ?
(2) Whether the appellant is entitled to share in the suit property ?
10. The contention of Shri K.N. Agrawal, learned Counsel for the appellant, is that Ex.P/1 is the Kishtbandi Khatoni of the year 1983-84 in which the name of Hanumat S/o Sumera and Imrat S/o Barati has been mentioned as Bhumiswami of the suit property. Similarly in the record of right of the year 1954-55 (Ex.P/2) name of Hanumat has been mentioned along with Ranmat and they have been described as Bhumidhari. In Khasra of the year 1983-84 to 1984-85 (Ex.P/3) names of Hanumat and Sumera are mentioned as Bhumiswami and, therefore, there is overwhelming evidence to the effect that Hanumat and Sumera were joint Bhumiswamis of the suit property and if that would be the position, plaintiff Hanumat was the Bhumiswami of share in the suit property and after his death, her daughter Dalso Bai became the Bhumiswami to the extent of the share of his father Hanumat. By inviting my attention to Ex.D/4 which is Kishtbandi Khatoni of the year 1960-61, it has been contended by learned Counsel that the names of Hanumat and Ranmat are mentioned and both of them have been described as Bhumiswami and similar is the position in the Khatoni Ex.D/5 of the year 1954-55 in which these two persons have been shown as Bhumidhari and thus, according to learned Counsel Shri Agrawal, the plaintiff is entitled to share in the suit property.
11. On the other hand, Shri K.B. Bhatnagar, learned Counsel for respondents 1 to 4, argued in support of the impugned judgment and submitted that admitted position is that one Durgu was the original male member of the family, but Sumera was the son of Durgu, this has not been proved and if that would be the position, Hanumat being the son of Sumera and Dalso Bai being the daughter of Hanumat does not have any right, title and interest in the suit property because Durgu was the owner of the suit property and whose son was Bahadur and Bahadur's son was Ranmat. Hence learned first appellate Court did not err in allowing the appeal of defendants thereby dismissing the suit of plaintiffs.
12. Having heard learned Counsel for the parties, I am of the view that this appeal deserved to be dismissed. REGARDING SUBSTANTIAL QUESTIONS OF LAW:
13. The admitted position which is borne out from the record and which is not disputed by learned Counsel for the parties, is that the original male member of the family was one Durgu who was owing the suit property. The dispute is whether Sumera was the son of Durgu or not. In this regard I have gone through the finding of learned first appellate Court particularly paras 23, 24 and 27. In these paragraphs learned first appellate Court after appreciating and marshalling the oral and documentary evidence, came to hold that Sumera was the son of one Buddhu and he was not the son of Durgu. In arriving such finding, learned first appellate Court placed reliance on a very important document Ex.D/2 which is a sale deed executed by Sumera in which he himself has described his father's name as Buddhu. The sale deed is not a registered document because the consideration is less than Rs. 100/-this document is dated 1-2-1917. Since Sumera himself described in this document to be the son of Buddhu, therefore, learned first appellate Court rightly appreciated the oral and documentary evidence and came to hold that Sumera was the son of Buddhu and not of Durgu. Since deceased plaintiff-Hanumat was the son of Sumera and plaintiff Dalso Bai is claiming herself to be the daughter of Hanumat, they do not have any right, title and interest in the suit property because they are deriving their right from Sumera and Sumera belonged to other family and he was not the son of Durgu who is the original male member of the family. Thus, I am of the view that learned first appellate Court did not commit any error in holding that Sumera is not the son of Durgu and he was not having any right, title and interest in the suit property. The findings arrived at by learned first appellate Court are pure finding of fact and cannot be assailed in the second appeal.
14. However, the question still hinges is that when the names of Hanumat and Imrat are mentioned in Kishtbandi Khatoni Ex.P/1 and their names are also mentioned in Ex.P/2 and these two documents are revenue record and further their names have been jointly shown as Bhumiswami in the khasra of year 1983-84 to 1984-85 (Ex.P/3), therefore, whether the suit of plaintiff ought to have been decreed up to the extent of share as the name of Hanumat along with Sumera has been shown in the revenue record. The said argument so advanced by learned Counsel for the appellant at the first blush appears to be quite attractive, however, on deeper scrutiny, is found to be devoid of any substance. The revenue record Ex.P/1 to P/3 are not the certified copies. Ex.P/1 is said to be copy of the Khatoni of the year 1983-84. Who has signed this document, there is nothing on record. On going through this document it is revealled that somebody has signed that document and beneath signature date 19/4/1984 has been written. Ex.P/2 which is Adhikar Abhilekh Panji Naksha said to have been of the year 1954-55, at the bottom of this document again somebody has signed. The said signature may be of Patwari. This document was issued on 5/12/1985, but this document is also not a certified copy. Similarly copy Ex.P/3 which is said to be Khasra Panchshala of the year 1983-84 to 1984-85, on this document also some signature is there, but who signed it, this has not been proved by the plaintiff, this document is also not a certified copy.
15. Under Section 117 of the M.P. Land Revenue Code, 1959 as well as revenue law prevailing in the year 1954-55, there is presumptive value of the correctness of revenue record. The question that hinges is now that when such presumption can be drawn. In the present case, documents Ex.P/1 to P/3 are not the certified copies and if that would be the position, it should have been proved like other documents. Who has signed these documents, there is nothing on record and no evidence in that regard has been placed by the plaintiff. Section 76 of the Evidence Act (in short 'the Act') speaks about certified copies of public documents and the procedure how they are given. Section 77 of the said Act states that mere production of the certified copy of the public document is the proof of the contents of the document. Under Section 79 of the said Act, there would be presumption as to genuineness of certified copy and if the certified copy of the public document is produced before any Court under Section 77 of the said Act, it will be admissible in evidence on its mere production.
16. The text of Section 76 of the Act enacts that custodian of a public document which any person has a right to inspect, shall give certified copy on demand. Section 77 says that such certified copies may be produced in a proof of the contents of the public documents or their parts. The certified copies are by statutes deemed to be originals (See Collector of Gorakhpur V. Ram Sundar Mal and Ors. AIR 1934 PC 157). By the word may used in Section 77 shows that an option has been given to a party to prove the contents by certified copies or by production of the original. The certified copy of a public document in the custody of a public officer need not to be proved by calling a witness but its production would be sufficient of its proof. In order to attract Section 76 of the Act, it should be borne out that public officer was having the custody of public document which any person has right to inspect. Thus, on going through Ex.P/1 to P/3 no prudentman would say that the person who issued these documents is a public officer having custody of public documents and, therefore, mere production of Ex.P/1 to P/3 they are not proved. These documents are not even proved by the testimony of plaintiff-Dalso Bai (P.W.1) because she has simply stated that she has filed these documents and they are Ex.P/1 to P/3. Therefore, in absence of any cogent evidence that who has signed these documents; whether the signatory is a public officer, and further he was having custody of the public document, Ex.P/1 to P/3 are not proved documents.
17. The Supreme Court in the case of Bhkinka and Ors. v. Chkaran Singh , has categorically held that under Section 79 of the Evidence Act a Court is bound to draw the presumption that a certified copy of a document is genuine and also that the officer signed it in the official character which he claimed in the said document. But such a presumption is permissible only if the certified copy is substantially in the form and purported to be executed in the manner provided by law in that behalf. The Supreme Court further held that to put this logic in different way, if a certified copy was executed substantially in the form and in the manner provided by law, the Court raises a rebuttable presumption in regard to its genuineness. The Supreme Court further came to hold that where a Patwari issues a certified copy without complying with the provisions of law governing its issue, the Court is not bound to draw its presumption in regard to its genuineness. Since the revenue record which is being placed reliance by learned Counsel for the appellant/plaintiff (Ex.P/1 to P/3) are not the certified copies, no presumption of their correctness or genuineness can be arrived and since they are not proved documents, the case of plaintiff based on these documents, is also not proved.
18. On going through the revenue record of the settlement year 1907-08 which is certified copy (Ex.D/3) it is gathered that the only name of Bahadur S/o Durgu has been mentioned and there is nothing on record that this entry was ever challenged in the subsequent years. Thus, according to me, in the present case the foundation stone is the revenue record of settlement year 1907-08 in which the only name of Bahadur S/o Durgu has been mentioned and no where the name of Sumera from whom the plaintiff is deriving right, title and interest, has been mentioned. At the cost of repetition I may mention here again that Durgu is the original male member of the family and was owing the suit property originally. Thus, the certified copy of the settlement year 1907-08 is having presumptive value and learned first appellate Court rightly came to hold that the suit property was of Bahadur whose son is Ranmat and Ranmat bequeathed the suit property to defendant Antram.
19. Shri Agrawal, learned Counsel for the appellant/plaintiff, again tried to put a deep dent on the case of the defendant by placing reliance on Ex.D/4 which is certified copy of the Khasra of year 1960-61 in which the name of Hanumat S/o Bahadur and Ranmat S/o Sumera has been mentioned and thus contended that original plaintiff Hanumat is having share in the suit property. True, Ex.D/4 is a certified copy, but it is not at all helpful for the plaintiff for two reasons. The first reason is that as per plaintiff's own case, original plaintiff Hanumat is not the son of Bahadur and is the son of Sumera, while in Ex.D/4 Bahadur has been shown as father of Hanumat. The second reason is that when in the settlement year 1907-08 (Ex.D/3), the sole name of Bahadur has been mentioned, by whose order the said entry was directed to be changed, there is nothing on record. It was for the plaintiff to show how the name of Hanumat entered in khasra of the year 1960-61. Similar is the position Ex.D/5 which is also certified copy of Kishtbandi Khatoni of the year 1954-55 in which also Bahadur is shown as father of Hanumat. I have already discussed that it is not the case of plaintiff that Hanumat is the son of Bahadur and, therefore, for the same reason, plaintiff cannot place reliance on Ex.D/5 also.
20. For the reasons stated herein above, since the alleged revenue record Ex.P/1 to P/3 are not at all proved as they are not the certified copies, no presumption of its correctness or genuineness can be arrived and, therefore, the case of plaintiff is not found to be proved on the basis of these unproved documents.
21. The above said substantial questions of law are thus, answered accordingly.
22. For the reasons stated herein above, I do not find any merit in this appeal and the same is dismissed with cost. Counsel fee Rs. 2,000/-, if pre-certified.