Patna High Court
Toral Mahto vs Chandeshwar Mahto And Ors. on 23 December, 1970
Equivalent citations: AIR1972PAT13, AIR 1972 PATNA 13
JUDGMENT B.N. Jha, J.
1. The plaintiff's suit for partition for his moity share in the suit properties was resisted by Toral Mahto, defendant No. 1, on the ground that the plaintiff was a stranger to the family of Man Singh, father of Toral Mahto, and Gopi Mahto father of the plaintiff was not his brother. The plaintiff's joint title and possession were also denied by defendant No. 1. The Court below overruled the contention of the defendant and came to the conclusion that Gopi Mahto, father of the plaintiff, was full brother of Toral Mahto and the plaintiff was in joint possession of the suit 'properties. Hence, the plaintiff's suit for partition of his half share was decreed. Defendant No. 1 has, therefore, come up to this Court.
2. Learned counsel for the appellant challenged mainly the finding of the Court below that the plaintiff's father Gopi Mahto was son of Man Singh and, as such Toral Mahto, defendant No. 1, and Gopi Mahto were brothers. He, however, fairly conceded that the question of possession is immaterial for the purpose of this case. His main contention was that the oral evidence adduced in the case did not fulfil the requirements of Sections 50 and 60 of the Indian Evidence Act and, as such, it is of no evidentiary value for the determination as to whether Gopi Mahto was son of Man Singh and father of defendant No. 1. The contention of learned counsel for the appellant may be correct in respect of the evidence of some of the witnesses, but the finding of the Court below is not simply based on the oral evidence adduced by the parties in the case. The Court below has taken into consideration evidence both oral and documentary, facts and circumstances of the case in coming to the conclusion that Gopi Mahto, father of the plaintiff, was brother of Toral Mahto. The documentary evidence and circumstances in the case, which I shall presently discuss, conclusively establish that Gopi Mahto was the son of Man Singh. No case of ouster having been pleaded or proved the plaintiff is entitled to a decree for partition as claimed by him on this finding alone.
3. The land bearing plot No. 7222 of khata No. 457 having an area of 51 decimals is one of the properties which are the subject-matter of partition. The entire suit properties including this plot are claimed by defendant No. 1 as his exclusive properties. This plot originally belonged to one Ramzan Mian who gave it in Sudbharna to defendant Toral Mahto by a registered deed (exhibit 3) dated September 29, 1948, for Rs. 600/-. Later on, the heirs of Ramzan Mian sold this land to Bhattu Mahto defendant No. 2, son of Toral Mahto and plaintiff Chandeshwar Mahto son of Gopi Mahto by a registered sale deed (exhibit 4) dated February 16, 1954 for Rs. 900/-. It further appears that the name of Bhattu Mahto was mutated in the landlord's Scrista in respect of this land and rent receipts (exhibits 1/c, 1/d and 1/f) were also obtained on payment of rent. The aforesaid documents, namely, the rent receipt's (exhibits 1/c, 1/d and 1/f), the sudbharna deed (exhibit 3) and the sale deed (exhibit 4) have been filed by the plaintiff. In the sale deed it is stated that the father of the executants had given the land in rehan with possession to Toral Mahto, father ,of Bhattu Mahto, claimant No. 1 and uncle of Chandeshwar Mahto claimant No. 2. It is also stated that Rs. 600/- was set off towards the rehan dues in favour of Toral Mahto, that they had taken Rs. 100/- from the vendees prior to the execution of the deed and that the balance amount of Rs. 200/- was to be paid at the time of the exchange of equivalents. If the plaintiff was not a member of the family of Toral Mahto it would not have been possible to set off the rehan dues of Toral Mahto towards the consideration of the sale deed executed in the name of Bhattu Mahto son of Toral Mahto and Chandeshwar Mahto son of Gopi Mahto. The sale deed itself recites that Chandeshwar Mahto is the nephew of Toral Mahto, defendant No. 1. Toral Mahto, defendant No. 1, has given explanation in his evidence regarding the custody of the rent receipts and the rehan deed (exhibit 3). He has stated that some of his papers had been stolen. He denied to have taken any sale deed of the rehan land. According to his statement, his son Bhattu Mahto, defendant No. 2, had taken the sale deed and he was in possession of the land. He further stated that Bhattu Mahto was separate from him. No such case of separation between defendant No. 1 and defendant No. 2 has been made out in the written statement, nor is there any evidence to that effect. Therefore, the story of separation between Bhattu Mahto and his father defendant No. 1 cannot be accepted. Assuming that Bhattu Mahto was separate from Toral Mahto, there is no reason as to why the sale deed would have been taken in the name of the plaintiff also along with Bhattu Mahto, defendant No. 2, and the consideration of the Ijara dues (exhibit 3) would be set off towards the consideration of the sale deed if the plaintiff was a stranger to the family of defendant No. 1. The story of the documents having been stolen also cannot be accepted. Some of the old documents have been filed by defendant No. 1. No saneha of the alleged theft was ever lodged. Perhaps on account of the sale deed (exhibit 4) defendant No. 2 did not appear and file a written statement in Court.
4. The landlord had filed rent suit No. 108 of 1953 in respect of some of the suit properties against the plaintiff and defendants 1 and 2. Exhibit 5 series are the summonses issued to Toral Mahto, Bhattu Mahto and Chandeshwar Mahto. They have been filed by the plaintiff. Exhibit 6 is the certified copy of decree passed in that rent suit. The suit of the landlord was DECREED against the defendants of thai suit. Defendant No. 1 in his evidence stated that he knew that Chandeshwar Mahto had been made a defendant in that rent suit and thereafter he objected but his lawyer told him that nothing could be done when the landlord had impleaded him. He admitted that he had taken the matter in appeal before the High Court but did not implead Bhattu Mahto and Chandeshwar Mahto as appellants along with himself. The trial Court has placed very great reliance on this circumstance in holding that the plaintiff is a member of the family of the defendants otherwise there was no reason as to why the landlord would have impleaded him in the rent suit. Moreover, if the plaintiff had no concern with the rent claimed holding and if he had been impleaded along with Toral Mahto and his son, defendant No. 1 would have certainly raised objection in the suit and would have fought out the matter. The evidence given by defendant No. 1 that he raised objection to Chandeshwar Mahto being made a party in the rent suit but his lawyer told him that when the landlord impleaded Chandeshwar Mahto nothing could be done, cannot be accepted.
5. There is yet another circumstance in this case. From the aforesaid facts it is clear that the plaintiff was known to Toral Mahto from before but in the written statement he simply said that the plaintiff's father Gopi Mahto was not the son of Man Singh. He never stated in his written statement about the parentage of Gopi Mahto. In the circumstances of the case, defendant No. 1 should have alleged that Gopi Mahto was the son of a particular person and was not the son of Man Singh. The Court below, in my opinion, was right in drawing adverse inference from this omission on the part of defendant No. 1.
6. The plaintiff called for the Pariwarik register of Bhui Gram Panchayat prepared under the provisions of the Bihar Panchayat Election Rules, 1959, from the Mukhia, Shyam Bihari Prasad, the Mukhia, was exmamined as P.W. 5 in the case. He produced the Pariwarik register. The entries in the Pariwarik register relating to the family of Toral Mahto were marked as exhibit 2 in the case. In cross-examination the Mukhia stated that every year the Pariwarik register was prepared. The Gram Sewak prepares the register after making enquiries from house to house. The register was prepared by the Gram Sewak on June 15, 1960. The Sub-Divisional Officer concerned and the Gram Panchayat Supervisor had put their signatures on this register. The entries in this Pariwarik register (exhibit 2) clearly show that Chandeshwar Mahto belonged to the family of Toral Mahto though their surname has been changed from Mahto to Singh. This document also shows that Toral Mahto belonged to the family, the head of which was defendant No. 1. Learned counsel for the appellant contended that the contents of this document could not be admissible in evidence because the Gram Sewak who prepared the register was not examined in this case. It is difficult for me to accept this contention. Learned counsel for the respondent submitted that exhibit 2 was a public document and it was not necessary for the plaintiff to have examined the Gram Sewak in this case. He referred to Rule 5 (1) of the Bihar Panchayat Election Rules, 1959, which reads thus:--
"On the establishment of a Panchayat, the Elections Officer shall cause to he prepared in respect of that Panchayat a register of residents in form A." Form A is in the following form:--
"Register of Residents (See Rule 5 (1)) (The Register shall be prepared familywise and each family shall be allotted a separate page).
Name of Gram Panchayat ..... .P. S. ....
Subdivision ........ District .......... Name of the villago or tola ............ Ward No. ...... Head of family ........ Region .......... 1. Serial No. 2. Name of the member of the family. 3. Father's/husband's name. 4. Date of birth. 5. Date of death. 6. Age. 7. Occupation. 8. Literate or illiterate. 9. If a qualified member of the Panchayat. 10. If not, reason for disqualification. 11. Name added to or struck off with particulars. 12. Remarks."
Thus, form A requires the name of the head of the family and name of the members of the family with father's name, age, occupation, etc. Exhibit 2 is exactly in the form as is provided under the Rules. Therefore, this Pariwarik register is prepared by the Elections Officer. The Elections Officer is defined in Section 2 (g) as follows:-
"Elections Officer" means the Sub-Divisional Magistrate, exercising jurisdiction over the sub-division within the limits of which the Gram Panchayat in which the election or the bye-election is to be held is situated, and includes any other officer who may be specially appointed by the Elections Officer to discharge any of his functions under these rules."
Therefore, this register is prepared by the Elections Officer in discharge of his official public duties. Section 74 of the Indian Evidence Act provides that the documents forming the acts, or records of the acts of public officers, legislative, judicial and executive of any part of India or of the Commonwealth or of a foreign country are public documents. The Evidence Act, however, does not define public officers. Therefore, the meaning of public officers has got to be taken in the ordinary sense. Public Officer is defined in Section 2 (17) of the Code of Civil Procedure. Under Sub-clause (h) every officer in the service or pay of the Government, or remunerated by fees or commission for the performance of any public duty, is a public officer. This definition can be safely taken in the ordinary sense to be the definition of a public officer. There is no doubt that the Elections Officer who is ordinarily the Sub-Divisional Magistrate is an officer in the service or pay of the Government and in discharge of his official duties he directs the preparation of the Pariwarik register and, as such, the Pariwarik register prepar-ed under the provisions of the Bihar Panchavat Election Rules, 1959, is a public document within the meaning of Section 74 of the Evidence Act. The evidence of the Mukhia (P.W. 5) clearly shows that the Pariwarik register had been prepared according to Rules. Therefore, even in the absence of the evidence of the Gram Sewak, the contents of this document (exhibit 2) can be used in evidence in the case.
7. Defendant No. 1 has also filed some documents in the case but they are of no assistance for the determination as to whether the plaintiff's father Gopi Mahto was full brother of defendant No. 1 or not. Exhibit A series are kobalas by which some family properties were acquired; exhibit B series are rent receipts in respect of some of the suit lands and exhibit C is a patta in respect of the suit land. If it is held that the plaintiff is the nephew of defendant No. 1, he is entitled to half share in the suit properties which are mostly ancestral and some acquired from the joint family funds.
8. A number of witnesses have been examined in this case on behalf of the plaintiff who supported his case that the plaintiff is the nephew of defendant No. 1. The parties are residents of village Pahitia and are Kurmis by caste. Admittedly, there are several families of Kurmis there, and some of them have come to support the case of the plaintiff. It is, however, significant to note that not a single person of that village has come to support the case of defendant No. 1. P.W. 1 is Tetar Mahto. He is great grandson of Mangru Mahto, grandfather of Toral Mahto. His house is just by the side of the house of defendant No. 1. He gave the genealogy of the family of the common ancestor of Mangru Mahto. He has stated that Gopi Mahto, father of the plaintiff, was the full brother of Toral Mahto. He also stated that the plaintiff and the defendants were coming on in joint possession of their lands. Before the institution of the suit, there was good relationship with the plaintiff and the defendants and there was one kitchen then. There was no new house which was constructed by Toral Mahto. This witness is really a very competent witness to say as to who were members of the same family and no valid reason could be alleged as to why he would give false evidence in the case. The genealogical table as given by defendant No. 1 clearly shows that there are some other members in the family of Mangru Mahto but none of them came to support the defence case. P.W. 2 Bhaju Mahto is Kurmi by caste and he is a resident of village Pahitia. He is a neighbour and he supported the case of the plaintiff that Gopi Mahto was full brother of Toral Mahto and the plaintiff was coming on in joint possession of the lands. Some of his lands are in the boundary of the land of the plaintiff and the defendants. Therefore, he is also a competent witness to speak about the possession of the land. P.W. 3 Balak Singh also supported the case of the plaintiff that he was living jointly with defendant No. 1 and was in joint possession of the lands in suit. P.W. 4 who belongs to the same village also supported the case of the plaintiff regarding parentage and joint possession. P.W. 9 is the son of the brother-in-law of the plaintiff. He has stated that the plaintiff was married in his family and since the marriage of the plaintiff he knew that Toral Mahto is his full uncle. He acted as Samdhi in the said marriage. There is no doubt that the evidence of P.Ws. 1 and 9 are in conformity with Sections 50 and 60 of the Indian Evidence Act and their evidence can be safely taken to have very great evidentiary value in this case. The other witnesses also have spoken about joint possession of the plaintiff over the suit lands along with the defendants. This is also a circumstance to hold that the plaintiff belongs to the family of the defendants. From the facts, circumstances and evidence discussed above, it is fully established that the plaintiff's father Gopi Mahto was the full brother of Toral Mahto, defendant No. 1, and, as such, the plaintiff is entitled to half share in the suit properties.
9. For the reasons stated above, the appeal fails and it is, accordingly, dismissed with costs. The judgment and decree passed by the Court below are, hereby, affirmed.
B.D. Singh, J.
10. I agree.