Allahabad High Court
Bhoj Pal vs Amcendra And Others. on 22 October, 2019
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 21 Case :- SECOND APPEAL No. - 279 of 1992 Appellant :- Bhoj Pal Respondent :- Amcendra And Others. Counsel for Appellant :- M.P.Yadav,A.K.Chaudhary,Mohd. Aslam Khan, Mohiuddin Khan Counsel for Respondent :- Pradeep Chandola,Anil Kumar Tewari,Vijai B. Verma Hon'ble Attau Rahman Masoodi,J.
Heard Sri Mohd. Arif Khan, learned Senior Counsel, assisted by Sri Mohd. Asif Khan, learned counsel for the petitioners and Sri Vijay Bahadur Verma, learned counsel for the respondents.
This second appeal was previously dismissed by judgement and order dated 19.7.2002 and on the same being challenged before the apex court in Civil Appeal No. 3864 of 2003, the judgement and order passed by this Court was set aside on 29.7.2010 and the matter was remitted to this Court for decision afresh in accordance with law.
The order sheet reveals that the second appeal was thereafter admitted by order dated 31.3.2014 on the substantial questions of law framed at (a) (d) (e) (f) and (g) which are extracted below:
"(a) Whether the ''Parivar Register' is not good evidence to proof the case of the plaintiffs/appellant regarding the date of death of Bechu?
(d) Whether, the suit can be dismissed on the ground that one witness of the plaintiffs was not produced?
(e) Whether the admission before the Revenue Court are not admissible before the Civil Court.
(f) Whether to prove the date of death, being the subordinate authority of the Tehsildar, the Lekhpal is not competent?
(g) Whether appellate court give its findings by reversing the judgement passed by the trial court without giving any reason and without considering the evidence on see and on record."
Since the substantial question of law framed at (g) is the quintessential issue and the result of appeal hinges on this very issue alone hence the Court has heard the parties at length.
The appellant-plaintiff brought about Regular Suit No. 308 of 1982 for cancellation of will deed dated 30.12.1982 impleading therein the alleged imposter as defendant no. 1, two attesting witnesses to the will deed as defendants no. 2 and 3 and the beneficiary of the will as defendant no. 4. The suit was filed on the premise that the alleged will was a fraudulent document which had been obtained by fraud i.e. by impersonation.
It was further averred in the plaint that the testator of the will, as an abundant caution, had already expressed such an apprehension prior to his death by making an application before the Chief Judicial Magistrate which was kept on record. As per the averments in the plaint, the will that was relied upon by the defendant no. 4, that too having been executed after the death of testator on 22.12.1982, was clearly a void document hence the prayer.
The suit was contested by the defendants impleaded therein and written statement was filed by the beneficiary disputing the pleadings set out in the plaint. The trial court on the basis of pleadings of the parties, framed as many as 9 issues and issues no. 1, 2 and 3 were specifically framed to the effect (i) as to whether the testator Bechu died on 22.12.1982, if yes, its effect; (ii) as to whether the deceased Bechu had not executed any will in favour of defendant no. 4 on 30.12.1982; and (iii) as to whether the defendant no. 1 (deceased) had impersonated Bechu for execution of forged will on 30.12.1982.
Since the plaintiff had alleged in the plaint that the will deed executed on 30.12.1982 was forged thus, burden of proof on the issue as to whether the testator Bechu had died on 22.12.1982, lay on him and this burden was discharged by adducing documentary as well as oral evidence to establish the death of testator (Bechu) on 22.12.1982. The appellant-plaintiff had filed the transportation receipt of dead body issued by the private transporter viz. Babu Bus Service dated 22.12.1982 in order to establish the alleged fact of death and performance of last rites of late Bechu at Ganga Ghat. The Parivar Register which was duly corrected by passing an order on 2.3.1983 affirming the date of death as 22.12.1982 and thereby expunging the entry of date of death recorded as 4.1.1983 was yet another documentary evidence filed before the trial court. This apart, the plaintiff-appellant also placed reliance upon mutation order passed in favour of the appellant-plaintiff herein which had attained finality. Besides the above, the application made by the testator prior to his death before the judicial magistrate pointing out an apprehension of such a forgery was also filed before the trial court.
Oral evidence of the plaintiff and one witness Prabhu was also led as PW-3 to prove the death of testator Bechu on 22.12.1982. The other witness i.e. PW-1 was an attesting witness to the earlier will deed dated 15.7.1980 executed by the testator Bechu in favour of the appellant-plaintiff which was duly registered. The defendants cross-examined the witnesses of the plaintiff and it is revealed from the record that opportunity of admission/denial of the documentary evidence was also availed of.
In rebuttal of the documentary evidence, the respondent no. 1 who was the beneficiary of the impugned will also filed documentary evidence of a certificate dated 12.9.1982 of Panda (priest) who certified to have performed the last rites of deceased Bechu at Ganga Ghat on 4.1.1983. In order to prove the genuineness of the impugned will dated 30.12.1982, oral evidence of attesting witness i.e. Sarju Prasad was also led before the trial court.
The trial court while adjudicating upon the issue of death of the testator Bechu on 22.12.1982 has recorded findings of fact based on documentary as well as oral evidence of the plaintiff. For proving the date of death of Bechu, the transportation receipt of the dead body issued on 22.12.1982 was filed which mentioned the vehicle number, name of driver, place of booking and the purpose of hiring transport service. This receipt was signed by the Manager of the transport company and by the father of plaintiff, namely, Umrao Singh.
The record reveals that a photocopy of the transport receipt dated 22.12.1982 is also placed on record upon which the defendants on being given the opportunity has endorsed ''denied' on the said photostat copy. The original copy of the transport receipt dated 22.12.1982 is also on record as paper no. 59-Ka-1. To prove the receipt of transportation of dead body of Bechu, oral evidence of the plaintiff Bhojpal had been recorded. Plaintiff Bhojpal in his examination-in-chief stated that he clearly recognises the signature of his father Umrao Singh on the receipt issued at the time of hiring the vehicle bearing no. UPY - 1507. The aforesaid receipt issued by the transporter viz. Babu Bus Service on being proved by the plaintiff was exhibited in evidence. Interestingly, the original copy of the transport receipt dated 22.12.1982 does not bear any denial as to the contents or its genuineness.
Thus, the trial court marked the said document as Exhibit no. 2 which appears to have been done by following the due procedure.
The respondents have not protested against the contents of the receipt during the course of trial. The Parivar Register was likewise filed in evidence and the trial court proceeded to rely on the order passed by the ADO, Panchayat for the reason that the order passed by the ADO, Panchayat under Rule 6 of U.P. Panchayati Raj (Maintenance of Family Registers) Rules, 1970, though appellable under Rule 6-A of the said Rules was allowed to attain finality hence the trial court proceeded on that premise. The mutation proceedings had also culminated in favour of the appellant-plaintiff and in absence of any challenge to the order passed by the Tehsildar on 20.2.1986, as affirmed by the appellate authority i.e. SDO/Assistant Collector-First Class on 27.1.1987, the trial court proceeded to rely upon the said order holding that the will deed impugned in the suit was forged and a finding to that effect was recorded in absence of any evidence to the contrary.
The trial court on the aspect of date of death thus, recorded a categorical finding that the testator Bechu had died on 22.12.1982 hence the will deed alleged to have been executed on 30.12.1982 was inconsequential and void. The suit was accordingly decreed in favour of the appellant-plaintiff by judgement and decree dated 25.4.1998 which was challenged by respondent no. 1 in Regular Civil Appeal No. 122/1988.
The first appellate court below doubting the findings on the premise that the contents of receipt dated 22.12.1982 with regard to transportation of the dead body were not established on the basis of any further evidence. The parivar register containing the order passed by ADO on 2.3.1983 was doubted that no enquiry was held by ADO and lastly that the order passed by mutation authorities was also unreliable on the ground of procedural irregularities. For doubting the evidences filed by the appellant-plaintiff and proved before the trial court, the first appellate court below has assigned cursory reasons. The reversal of the trial court findings is not based on any clinching evidence left unconsidered by the trial court. The first appellate court below on the other hand equally failed to consider the application made by the testator before the court of judicial magistrate expressing his apprehension that the beneficiary of subsequent will may indulge into an activity of fraud.
This Court would also note that a certificate issued by Panda (priest) certifying the death of Bechu on 4.1.1983 was filed by the beneficiary i.e. defendant no. 4 but the certificate so issued on 12.9.1982, is inadmissible on the face of it. The reason of the certificate being anti dated appears to be none but to nullify the evidentiary value of the application of the deceased testator filed before the Chief Judicial Magistrate on 6.10.1982 of which a certified copy was filed and proved before the trial court.
The jurisdiction of the first appellate court to re-appreciate evidence is wide but it does not follow that the reversal of a finding is resorted to mechanically. It is for this reason that the scope of Order LXI Rule 31 CPC is wide enough. In the present case, the appellate court, except on the basis of logic and without appreciating the actual defence or objection to the documents being noted, has reversed the findings of the trial court. The difference of opinion is not the rule at the first appellate stage but what is permissible is to find a fault, frame a point of determination and after giving opportunity to the parties, proceed to decide. Mere formation of opinion unless the evidence relied upon is inadmissible in law, the findings of the trial court are not open to be reversed. A document exhibited once for this reason alone has sanctity.
Now coming to the argument on exhibition of the transport receipt dated 22.12.1982, learned counsel for the appellant has laid great stress on the proposition that once a document is exhibited, the powers of appellate court to doubt the admissibility of such a document stand confined only to the extent of protest. It is thus argued that once the transport receipt was exhibited, it leaves no room for doubt that the death of Bechu had not occurred on 22.12.1982, as such, the first appellate court below in absence of any just cause fell in error to reverse the findings of the trial court. It is further argued that howsoever weak an evidence may be, the same cannot be doubted by the first appellate court simply on the ground that its contents were not proved that too when there was no protest. For doubting the contents of the receipt, it was necessary that the party against whom such an evidence was relied, ought to have protested against the genuineness as well as the contents thereof. It is for this reason that the opportunity of admission and denial is provided.
To substantiate the argument, learned Senior Counsel has placed reliance upon the apex court judgement reported in (2004) 7 SCC 107 (Dayamathi Bai (Smt) v. K.M. Shaffi) of which para-14 reads as under:
"To the same effect is the judgment of the Privy Council in the case of Gopal Das & Anr. v. Sri Thakurji & Ors. reported in [AIR 1943 PC 83], in which it has been held that when the objection to the mode of proof is not taken, the party cannot lie by until the case comes before a Court of appeal and then complain for the first time of the mode of proof. That when the objection to be taken is not that the document is in itself inadmissible but that the mode of proof was irregular, it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. Similarly, in Sarkar on Evidence, 15th Edition, page 1084, it has been stated that where copies of the documents are admitted without objection in the trial Court, no objection to their admissibility can be taken afterwards in the court of appeal. When a party gives in evidence a certified copy, without proving the circumstances entitling him to give secondary evidence, objection must be taken at the time of admission and such objection will not be allowed at a later stage."
In the present case, the documentary evidence after the opportunity of admission and denial was duly exhibited. The judicial application of mind for exhibiting the documentary evidence was undertaken in the trial. No protest was registered by the respondent no. 3 against the transportation receipt either as to its genuineness or the contents. Therefore, the trial court judgement having relied upon the proved evidences was not open to be doubted. It may not be wrong to say that the defendants having failed to protest against the correctness of contents of the transport receipt, did not take advantage of shifting the onus of proof, thus, the consequence would be that the contents of the document stood admitted and proved which on the face of it do not reflect any inherent inadmissibility. The appellate court could not doubt the admissibility of such an evidence in an adversarial case. The respondents had also failed to prove the evidence filed in rebuttal, hence doubting the order incorporated in the Parivar Register which had attained finality as also the mutation order which was passed after recording evidence was clearly erroneous and impermissible. The first appellate court has also not adverted to the application filed before the Chief Judicial Magistrate which the testator had filed apprehending a fraudulent act attributed against respondent no. 3.
The findings of fact recorded by the trial court were impeccable and were wrongly reversed by the first appellate court, hence the impugned judgement suffers from manifest error of law and is liable to be set aside.
Learned counsel for the respondents has failed to put forth any stand on the basis of which it may be assumed that the onus of proving the contents of the exhibited document was ever sought to be shifted upon the plaintiff. Therefore, this Court is of a clear opinion that the impugned judgement passed by the first appellate court being untenable in the eye of law is liable to be set aside. It is ordered accordingly and the judgement/decree passed by the trial court is hereby affirmed as valid.
The second appeal is allowed. No order as to cost.
Order Date :- Oct. 22, 2019 Fahim/-