Himachal Pradesh High Court
Chitru Devi vs Smt. Ram Dei And Ors. on 29 November, 2001
Equivalent citations: AIR2002HP59
Author: Lokeshwar Singh Panta
Bench: Lokeshwar Singh Panta
JUDGMENT Lokeshwar Singh Panta, J.
1. This is plaintiffs second appeal under Section 100 of the Code of Civil Procedure, 1908 against the judgment and decree dated 29-9-1997 of Disrict Judge, Kullu in Civil Appeal No. 33/1996 whereby the appeal of defendants Nos. 1 & 2 (respondents Nos. 1 to 3 herein) against the judgment and decree dated 20-11-1996 of Senior Sub Judge, Kullu has been partly allowed thereby setting aside the judgment and decree of Senior Sub Judge, Kullu passed in Civil Suit No. 133/92. Hereinafter UK: parties are referred to as the plaintiff and the defendants.
2. The facts giving rise to the tiling of the present appeal are that plaintiff Smt. Chatru Devi filed suit for declaration that she along with defendant No. 4 Smt. Jagtamba Devi are owners in possession of the land to the extent of 1/3rd share measuring 21.12.0 bighas as described in para 1 of the plaint situate in Phati Shilihar, Kothi Kotkandi. Tehsil and District, Kullu (hereinafter referred to suit land) and the mutation No. 4361 attested by the Revenue Authority on 12-3-1992 was illegal, void and inoperative and not binding on her and that gift deed executed by defendant No, 1 Smt. Ram Dei in favour of Jagar Nath, defendant No. 5, dated 10-4-1992 of 3/173 share was also illegal, void and Inoperative. Consequential relief of permanent prohibitory injunction restraining defendants 1 to 3 from interfering in her ownership and possession was also claimed. It was the case of the plaintiff that the suit land was owned by one Teku alias Tck Ram who was married to Smt. Devku and out of their wed-lock three daughters, namely, Chitru (plaintiff), Jagtamba (defendant No. 4) and one Hardei were born. Hardei died unmarried and Smt. Devku also died during the lifetime of Teku. Teku resided In village Kahudar and in lieu of the services rendered to him. he executed Will Ext. PA registered on 28-8-1972 in favour of the plaintiff bequathing land measuring 4.16.0 bighas and as such she is in possession of the said land. Teku died on 17-12-1981 and his last rites were performed by her and the suit land was inherited by her and defendant No. 4 Suit. Jagtamba Devi in equal shares. One Tap Dassi, grand-mother of defendants Suit. Sheela and Smt. Dharma daughters of Sidhi Singh get mutation No. 4361 attested and sanctioned in her favour; in favour of defendants 2 & 3 and the plaintiff and defendant No. 4 in connivance with revenue officials claiming herself to be widow of Teku. It was stated by the plaintiff that Teku never married Tap Dassi and Sidhi Singh was not their son and as such the said mutation was illegal, void and inoperative. Tap Dassi died on 18-11-1990 and on her death defendant. Nos. 1 to 3 on the basis of wrong and illegal entries recorded in their names in the revenue record and in favour of Tap Dassi, openly threatened to interfere in the peaceful ownership and posssession of the plaintiff with ulterior motive. Defendant No. 1 Smt. Ram Dei had executed gift deed dated 10-4-1992 in favour of defendant No. 5 Jaglar Nath whereby 0-3-0 biswas of land had been given to him and as she had no right, title and interest in the suit land and as such defendant No. 1 was not competent to execute the said gift deed. On these premises the suit came to be filed.
3. Defendant Nos. 1 to 3 in their written statement resisted and contested the suit inter alia raising preliminary objections of limitation, estoppel and locus slandi. On merits they pleaded that the plaintiff and defendant No. 5 arc not the daughters of late Teku and in fact Teku had married Tap Dassi and from their wed-lock one son by the name Sidhi Singh and one daughter Man Dei (since deceased) were born. Sidhi Singh pre-dcccased Teku and after the death of Teku the entire estate was inherited by his Widow Smt. Tap Dassi; defendant No. 1 widow and defendant Nos. 2 and 3 daughters of Sidhi Singh. They stated that they are exclusive owner in possession of the suit land and Teku had not executed any Will in favour of the plaintiff and the alleged Will dated 28-8-1972 was forged and fictitious and shrouded with suspicious circumstances. The averments of the plaintiff that she performed last rites of Teku were denied and it was also denied that the plaintiff and defendant No. 4 inherited the estate of Teku after his death. Thus, they pleaded for dismissal of the suit of the plaintiff.
4. On the pleadings of the parties, the following issues were framed by the trial Court on 12-5-1994 :
i) Whether the plaintiff and defenclant-4 are the daughter of Shri Teku deceased? O!'F
ii) Whether Teku deceased executed a Will dated 28-8-1972 in favour of the plaintiff as alleged? . . . OPD
iii) Whether Tap Dassi was wife of Teku deceased? . . . OPD
iv) Whether Sidhi Singh was son of Teku deceased? . . . OFF
v) Whether the mutation No. 4361 of Phati Shilihar of the estate of Teku deceased in favour of the Tap Dassi was wrong, illegal and void? OPP
vi) Whether the suit is within time? OPP
vii) Whether the plaintiff is estopped to file the suit by her acts and conduct? OPD
viii) Relief.
5. The parties went lo trial and led their oral and documentary evidence. The learned trial Court recorded findings under Issues Nos. 1, 2, 5 and 6 in favour of the plaintiff and issues Nos. 3. 4 and 7 were decided against defendants 1 to 3 as a result thereof the suit of the plain till was decreed by judgment and decree dated 20-11-1996.
6. Feeling aggrieved, defendant Nos, 1 to 3 carried the matter in appeal before the first Appellate Court. The first Appellate Court by the impugned judgment partly allowed the appeal and set aside the judgment and decree of the trial Court. The suit of the plaintiff for declaration and injunction was dismissed. Now, the plaintiff has filed the present second appeal challenging the correctness and validity of the judgment and decree of the learned District Judge.
7. This appeal was admitted on the following substantial questions of law :
"1. Whether the learned lower Appellate Court erred in holding that Smt. Tap Dassi was married to Tek Ram?
2. Whether the learned lower Appellate Court rnis-read and mis-appreciated the oral and documentary evidence i.e. Exts. DA, DB, DC. PW-4/A and PK?
3. Whether in the peculiar facts and circumstances of the case, the entries in the voter list showingTap Dassi w/o Teku could be relied upon without further proof?"
8. I have heard Mr. Prem Goel, learned counsel appearing on behalf of the plaintiff and Mr. Deepak Gupta. learned counsel for contesting defendant Nos. 1 to 3.
9. Mr. Goel contended that the learned District Judge has erred in Ignoring the overwhelming evidence both oral and documentary by holding Smt. Tap Dassl legally wedded wife of Teku and as such she was entitled to inherit his property. Reliance on voter lists Ext. DA for the year 1981, DB for the year 1983 and Ext. DC for the year 1988 showing Smt. Tap Dassi wife of Teku has been wrongly placed in the teeth of document mark Ext. D4 the copy of application made by Smt. Tap Dassi in the year 1990 for the grant of old age pension, in which she had given the name of her husband Seesh Ram. The abovesaid voter lists were procured by Smt. Tap Dassi after the death of Teku in the year 1981 and no other document of pariwar register or Panchayat record was produced to establish that Smt. Tap Dassi was the wife of Teku. He also contended that the contesting defendants could not prove that Sidhi Singh was son of Teku as this fact was nowhere mentioned by Teku in his Will Ext. PA executed by him in favour of the plaintiff. Learned counsel also contended that the well reasoned judgment and decree of the trial Court decreeing the suit of the plaintiff was set aside by the first Appellate Court without recording proper reasonings.
10. Per contra Mr. Deepak Gupta, learned counsel for the contesting defendants has sought to support the judgment of the District Judge and contended that mutation Ext. DJ (again Ext. P-1) was entered and attested by the revenue authority in the presence of the plaintiff and she has not challenged the correctness and validity of the said order of mutation whereas it was defendant Ram Dei who assailed the order of the revenue authority and as such the plaintiff cannot now take any advantage of the said mutation order. He next contended that the signature or thumb Impression on the application Ext. PW-4/A of Smt. Tap Dassi has not been proved nor the two marginal witnesses of the said application were examined to prove that the application was in fact made by Smt. Tap Dassi and no old ' age pensionary benefits were derived by her on the basis of the claim made in the said application.
11. I have given my anxious and thoughtful consideration to the rival contentions of both the parties. It is admitted case of the parties that Teku died in the year 1981 whereas Smt. Tap Dassi died somewhere in the year 1990. The suit was filed by the plaintiff in 1992 about 11 years after the death of Teku. The marriage of Tap Dassi and Teku was not deputed by any one of the spouses during their lifetime but by the plaintiff who claims to be daughter of deceased Teku from the wed-lock of Devku. Now at this late stage the ceremonies of marriage undergone by Teku and Smt. Tap Dassi after their deaths could not be expected to be proved by the widow of Sidhi Singh and his daughters. The plaintiffs cannot take any benefit of Will Ext. PA as admittedly it was not the subject matter of the suit nor it stands proved as attesting witness Sher Singh has not been examined and the learned District Judge has rightly held that no finding was required on the validity of the Will in this suit as the land entered in the said Will was Nautor land granted to Teku. Plaintiff Chitry in her deposition as PW-2 deposed that she is daugther of Teku and his wife Smt. Devku. DW-1 Ram Dei in her statement admitted that plaintiff and defendant No. 4 are the daughters of Devku but not from the wedlock of Teku and after the death of Teku. mutation of inheritance was wrongly sanctioned in favour of the plaintiff and defendant No. 4. which was objected to by her at the time of attestation of the mutation Ext. DJ (again Ext. P-1).
12. DW-1 Smt. Ram Dei in her deposition stated that her mother-in-law Smt. Tap Dassi was married to Teku and out of their wed-lock her husband Sidhi Singh and one daughter Man Devi were born. Man Devi predeceased Teku. She stated that her marriage was celebrated with Sidhi Singh by her father-in-law Teku. Sidhi Singh died in the year 1968. Out of her wedlock with Sidhi Singh two daughters, namely. Dharrna and Sheela defendant Nos. 2 and 3 were born. Defendant No. 2 was got married by her grand father Teku. She categorically stated that the plaintiff and defendant No. 4 were not the daughters of Teku. She emphatically denied the suggestion of the plaintiff that Smt. Tap Dassi was wife of one Seesh Ram. She also denied the suggestion of the plaintiff that Smt. Tap Dassi applied for old age pension in which she represented her to be wife of Seesh Ram. Her evidence has been corroborated by DW-2 Thakur Das. DW-3 Hari Chand and DW-4 Dharma Devi.
13. The plaintiff examined PW-4 Smt. Rameshna who was at the relevant time working as Pension Assistant in the office of District Welfare Office, Kullu. She placed on record a copy of application mark Ext. PW-4/A allegedly submitted by Smt. Tap Dassi for the grant of old age pension and a sum of Rs. 60/- per month was sanctioned to her with effect from 1-7-1991. She stated that as per the record three months old age pension were sent to Smt. Tap Dassi by Money Order on 28-8-1991 but the amount was not disbursed to her as by that time she was reported to be dead. The plaintiff has mainly relied upon the application Ext. DW-4/A to prove that in the said application Smt. Tap Dassi was shown as wife of Seesh Ram and therefore, she could not be . said to be a wife of Teku. No person has been examined to prove whether the application was filed by Tap Dassi nor the Pradhan or any Member of the Panchayat who verified her to be entitled for the grant of old age pension as wife of Seesh Ram. In the absence of any clear, cogent and reliable evidence placed on record by the plaintiff, the first Appellate Court has rightly held that document Ext. PW-4/A is of no help to the plaintiff to prove that Smt. Tap Dassi was wife of Seesh Ram and not of Teku. On the other hand, the defendants have proved by placing on record voter lists Exts. DA to DC. copies of jamabandies for the years 1988-89 Exts. DD. DE and DF and death certificate of Smt. Tap Dassi Ext. DH issued by the District Registrar. Birth and Death of the Chief Medical Officer, Kullu and these documents clearly prove that Smt. Tap Dassi was the wife of Teku. In copy of birth certificate mark Ext. ADW2/2 produced before the first Appellate Court the date of birth of one male child was given 18-6-1943 and the name of the father of the child was mentioned Tek Ram. This certificate will also show that a son was born to Tek Ram in the year 1943 who can be no other person than Sidhi Singh husband of defendant No. I and father of defendant Nos. 2 and 3 who died in the year 1968. The plaintiff has not brought on record any documentary evidence from the birth and death register maintained by the competent authority and Birth and Death Registration Act, 1969 or from the record of the Panchayat to prove that she and her sister defendant No. 4 were the daughters of Teku out of his wed-lock with Smt. Devku. Copies of the documents from the record maintained by a Panda at Haridwar mark Exts. PW-5/B were produced on record by one Raju who was examined as PW-5 by the first Appellate Court in support of the application filed by defendant No. I Ram Dei for leading additional evidence in these documents as well Sidhi Singh was shown the son of Teku.
14. The contention of the learned counsel for the plaintiff that no service book or personal file of Sidhi Singh was produced by the defendants to show that Sidhi Singh was son of Teku and therefore, no reliance can be placed on the other documents placed on record by the defendants cannot be accepted. It is proved that Sidhi Singh was working in the office of the Divisional Forest Officer, Kullu and ADW-3 Ram Kali. Senior Clerk of the office of the Divisional Forest Officer, Kullu has said that the service book and personal file of Sidhi Singh were sent to the office of Conservator of Forest on 23-7-1993 and no other record was available in the office of the Divisional Forest Officer. Kullu. PW-4 Ram Nath Vidharthy. Superintendent Grade-I office of the Conservator of Forest, Kullu stated that the summoned record could not be produced before the first Appellate Court because the same stood destroyed. He stated that Sidhi Singh died in an accident and a sum of Rupees 8,000/- as compensation was paid to his wife defendant No. 1.
15. The plaintiff has brought on record a copy mark Ext. PX on the file of the learned District Judge (in Urdu language) to prove that a marriage took place between Tap Dassi and Seesh Ram on 9-2-1928 and as such she was the wife of Seesh Ram and not of Teku. To prove this document the plaintiff has not examined any witness and therefore, this document cannot be believed in evidence to prove the claim of the plaintiff in the teeth of the overwhelming evidence placed on record by the defendants.
16. The contention of Mr. Prem Goel, learned counsel for the plaintiff that document Ext. PX can be read as admissible evidence under Section 90 of the Indian Evidence Act, 1872. as it is more than 30 years old cannot be accepted as the plaintiff has failed to prove that the said document was produced from proper custody. Had this document been an agreement of marriage between Seesh Ram and Tap Dassi the same ought to have been in the proper custody of Seesh Ram or Tap Dassi and not in the custody of the plaintiff. Admittedly, Teku died in the year 1981 whereas Smt. Tap Dassi died in the year 1990 and the suit was filed by the plaintiff against the defendants in the year 1992. The alleged agreement was dated 9-2-1928. Had this agreement been in the custody of the plaintiff she could have produced it during the lifetime of both Teku and Smt. Tap Dassi. The said agreement was also not produced before the trial Court but it was sought to be brought on record only in appeal filed by the defendants against the judgment of the trial Court before the first Appellate Court. How this document came in the hands of the plaintiff, there is no evidence led by her. In these circumstances, no reliance can be placed on such document.
17. Learned counsel for the plaintiff placed reliance on State Government. Madhya Pradesh v. Kamruddin Imamoddin. AIR 1956 Nag 74, to contend that a mere entry in a Birth and Death register to the effect that a child was born to a person without any statement as io the identity of the child is not sufficient to prove the birth of Sidhi Singh under Section 35 of the Evidence Act. In that case the age of the girl for an offence punishable under Section 363 was in dispute. A Division Bench of Nagpur High Court said that entry in the birth and death register was no doubt a document within the meaning of Section 35 of the Evidence Act and was therefore, relevant and has evidentiary value, but this does not mean that each and every entry made in that register is admissible in evidence and only such entries as are made therein by persons in the discharge of their official duty are admissible.
18. In State of Bihar v. Radha Krishna Singh (1983) 3 SCC 118 : (AIR 1983 SC 684), it has been said that Section 35 of the Evidence Act requires the following conditions to be fulfilled before a document can be admissible under it :
(1) the document must be in the nature of an entry in any public or other official book, register or record;
(2) it must state a fact in issue or a relevant fact; and (3) the entry must be made by a public servant in the discharge of his official duties or in the performance of his duties especially enjoined by the law of the country in which the relevant entry is kept.
19. In the present case the date of entry of a male child or Tek Ram was incorporated by the competent authority in mark Ext. ADW-2/B which was kept and maintained by the competent authority under Birth and Death Registration Act. 1969. On the basis of the said document, the defendants have proved that the male child was none else than Sidhi Singh as there is no other evidence on record to prove that Teku alias Tek Ram had more than one son. Thus, the decision relied upon by the learned counsel for the plaintiff in State Govt., Madhya Pradesh v. Kamruddin Imamoddin (supra) is of no help to her to disprove that Sidhi Singh was not the son of Teku.
20. In Nagayasami Naidu v. Kochadai Naidu, AIR 1969 Mad 329 relied upon by the learned counsel for the plaintiff, it has been held that lather's name entered as A son of B in column requiring officer to record name of father of new born child was not admissible with reference to parentage of A. The ratio of this judgment is also of no relevance to the peculiar facts and circumstances of the present case.
21. in Hazara Singh v. Attar Kaur, AIR 1976 P & H 24, entry was recorded in birth register showing that a daughter was born to a woman at village C and father of new born was H. One A claiming to be the daughter of H was not found to have proved her case on the ground that absence of identity of H or that of new born was not sufficient to prove that A was daughter of H.
22. In Shiv Ram v. Shiv Charan Singh, AIR 1964 Raj 126, a Division Bench said that an entry in a Birth and/or death register as to age would be excellant evidence and may have to be preferred to entries in the record of educational institutions. No benefit can be derived by the plaintiff from the ratio of these decisions to prove her case.
23. The next contention of the learned counsel for the plaintiff that no reliance can be placed on voter lists mark Exts. DA. DB and DC showing Smt. Tap Dassi wife of Teku as these documents pertain to the years 1981, 1983 and 1988 respectively and no voter list prior to the said period was brought on record by the defendants to prove their claim. These voter lists were prepared by the competent official of the election department in the discharge of his official duties and the plaintiff has never challenged correctness and validity of the voter lists before the competent authority in any proceedings. The learned first Appellate Court has rightly relied upon the voter lists to prove that Smt. Tap Dassi was the wife of Teku. The electoral roll is a public document and admissible in evidence unless it is rebutted by cogent and reliable evidence. The plaintiff has failed to rebut the entries recorded in the electoral roll and on the basis of the documentary evidence proved on record. I find no cogent reason to differ with the conclusion arrived at by the first Appellate Court that Smt. Tap Dassi was the wife of Teku and out of their wedlock Sidhi Singh was born whose legal representatives are defendants 1 to 3 in the suit and thus they are entitled to inherit the estate of Teku.
24. As per the copy of mutation Ext. DG, the presence of plaintiff at the time of attestation of mutation has been recorded and no evidence has been led by her to prove that she never appeared before the revenue authority during the proceedings of mutation. She has not challenged the mutation entries before any authority permissible under law and it was defendant No. 1 who challenged the mutation order recorded by the revenue authority in favour of the plaintiff and her sister defendant No. 5 on the ground that the plaintiff and defendant No. 5 were not the daughters of Teku and as such, the mutation was wrongly entered and attested in their favour.
25. It is no doubt true that the learned District Judge has not discussed and relied upon the evidence adduced before him in support of an application seeking for additional evidence. 1 do not think it desirable to remand the appeal back to the District Judge to record findings on the evidence led before him as the said evidence has been duly considered by me in the foregoing paragraphs and on re-consideration thereof. I am not convinced that additional evidence led before the District Judge by the plaintiff will prove her case that Smt. Tap Dassi was not the wife of Teku nor Sidhi Singh was their son.
26. It is well settled proposition of law that the findings reached by the learned District Judge are based on the weight of oral and documentary evidence and this Court while exercising jurisdiction under Section 100. C. P. C. could not interfere with those findings and substitute its own findings.
27. Section 100 of the Code of Civil Procedure was amended by amending Aet No. 104 of 1976 making it obligatory upon the High Court to entertain the second appeal only if it was satisfied that the case involved a substantial question of law. Such question of law has to be precisely stated in the memorandum of appeal and formulated by the High Court in its judgment for decision. The appeal can be heard only on the question, so formulated, giving liberty to the respondent to argue that the case before the High Court did not involve any such question. The Amending Act was so Introduced on the basis of various Law Commission Reports recommending for making appropriate provisions in the Code of Civil Procedure which were intended to minimise litigation, to give the litigant fair trial in accordance with the accepted principles of natural justice, to expedite the disposal of civil suits and proceedings so that justice is not delayed, to avoid complicated procedure, to ensure fair deal to the poor sections of the community and restrict the second appeals only on such questions which are certified by the courts to be substantial question of law. (See Veerayee Ammal v. Seeni Ammal, 2001 (9) JT (SC) 145 : AIR 2001 SC 2920).
28. Even before the amendment of Section 100 of the Code the concurrent findings of fact could not be disturbed in the second appeal as held by the Supreme Court in Paras Nath Thakur v. Smt. Mohani Dasi (deceased), AIR 1959 SC 1204. To the same effect are the judgments reported in Sri Sinha Ramanuja Jeer Swamigal v. Sri Ranga Ramanuja Jeer alias Emberurnanara Jeer. AIR 1961 SC 1720, V. Ramachandra Ayyar v. Ramallngam Chettiar, AIR 1963 SC 302 and Madamanchi Ramappa v. Muthaluru Bojjappa, AIR 1963 SC 1633. After its amendment the Supreme Court in various judgments held that existence of the substantial question of law is a condition precedent for the High Court to assume jurisdiction of entertaining the second appeal.
The conditions specified in Section 100 of the Code are required to be strictly fulfilled and that the second appeal cannot be decided on merely equitable grounds.
29. The Supreme Court in Kondiba Dagadu Kadam v, Savitribai Sopan Gujar (1999 (3) JT (SC) 163): (1999) 3 SCC 722 : (AIR 1999 SC 2213) again considered the scope and exercise of judicial discretion by the High Court in second appeal and held :
"If the question of law termed as a substantial question stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court, its merely wrong application on the facts of the case would not be termed to be a substantial question of, law. Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. The mere appreciation of the facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law. But where it is found that the first Appellate Court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as a substantial question of law. Where the first Appellate Court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal. This Court in Reserve Bank of India v. Ramkrishna Govind Morey, (1976) 1 SCC 803 : (AIR 1976 SC 830). held that whether the trial Court should not have exercised its jurisdiction differently is not a question of law justifying interference."
30. The questions of law formulated hereinabove as substantial questions of law in the instant appeal cannot In any manner be termed to be questions of law much less as substantial questions of law. Merely because of appreciation of evidence another law is also possible would not empower this Court to assume the jurisdiction by term-Ing the abovesaid questions as substantial questions of law. The learned District Judge has exercised his discretion as a first Appellate Court In a judicial manner. Its decision cannot be regarded as suffering from an error either of law or procedure requiring interference in this appeal.
31. On re-consideration of the entire material on record and in the light of the above decisions of the Supreme Court. I do not find any jurisdictional error in the judgment of the learned District Judge warranting interference in this second appeal.
32. None of the contentions of the learned counsel for the plaintiff are tenable and sustalnable.
33. In the result, there is no merit in this appeal which is accordingly dismissed. interim stay shall stand vacated. Costs on the parties.