Bhuilat v. Ram Karan — 1976 DIGILAW 768 (ALL)

JUDGMENT H.N. Agarwal, Member. - This is a second appeal against the judgment and decree of Sri Sayied Hussain, Additional Commissioner, Faizabad Division, dated July 24, 1973, dismissing the appeal preferred against the judgment and decree passed by the Assistant Collector, 1st Class, Akbarpur, district Faizabad, dated January 25, 1971 in suit No. 507 under Section 229-B of the U.P.Z.A. and L.R. Act. 2. I have heard learned counsel for the appellant and have gone through the record. The respondents have been duly served. On August 30, 1976, counsels for both parties wee present and at their request the case as adjourned to October 25, 1976. The counsel for the respondent had duly noted the date, but failed to appear on this date. 3. The facts may be briefly stated here. According to the plaint, Gopal and Mohan, who were brothers, were co-tenure-holders of the land in suit. The plaintiff-appellant claims that Gopal died issueless and that he himself is the sole heir of Gopal and Mohan and is the sole tenure-holder of the land in suit. The defendant-respondent, Ram Karan, contested the suit by pleading that he is the son and heir of Gopal and is co-tenure-holder of the land in suit to the extent of share. Both the courts below have upheld the claim of the defendant-respondent and have dismissed the suit. 4. The learned counsel for the appellant has contended that the courts below have erred in law and in fact in holding that Ram Karan is the son of Gopal when Ram Karan himself has admitted in his statement that he is not the son of Gopal. The learned counsel has further argued that the documentary and oral evidence on record fully established that Ram Karan is the son of Sahdeo and Gohanlagua of Gopal. 5. Now a perusal of the record shows that Ram Karan, the defendant-respondent, had not admitted that he is the son of Gopal, but certainly he has made a very equivocal statement. At the stage he says that his father's name was Gopal. Later on, he says that Gopal was his uncle. In the course of his statement, he has repeated that Gopal was his uncle. In the course of statement, he has stated as follows:- "I do not know that I am the son of Sahdeo and came with my mother as Gohanlaguna. Later on, he says that Gopal was his uncle. In the course of his statement, he has repeated that Gopal was his uncle. In the course of statement, he has stated as follows:- "I do not know that I am the son of Sahdeo and came with my mother as Gohanlaguna. I do not know that when my mother came to the house of Gopal, I was two years old...... My uncle Gopal told me that my mother was married." The statement of Ram Karan of course does not amount to an admission that no is the son of Gopal, but certainly his statement makes his own case very doubtful and we have to look to other oral and documentary evidence to come to a proper finding on this question. The extract from Kutumb register of the Gaon Sabha Nasopur has been filed. It records Ram Karan as son of Sahdeo. There is of course statement of Bhuilor, P.W. 1, Kuriya P.W.2 and Ganesh P.W. 3 to the same effect. On the other hand, in the electoral roll for the years 1955 and 1968 Ram Karan is recorded as the son of Gopal. 6. The learned counsel for the appellant has referred to Dolgobinda v. Nimai Charan, AIR 1959 S.C. 914 . In which a learned Bench of the Supreme Court has held that under Section 50 when the court has to form an opinion as to the relationship of one person to another the opinion expressed by conduct as to the existence of such relationship of any person who has special means of knowledge on the subject of that relationship of a relevant fact. The essential requirement of the Section are (1) there must be a case where the court has to form an opinion as to the relationship of one person to another (2) in such a case, the opinion expressed by conduct as to the existence of such relationship is relevant fact (3) but the person whose opinion expressed by conduct is relevant must be a person who as a member of the family or otherwise has special means of knowledge on the particular subject of relationship, in other words, the persons must fulfil the condition laid down in the latter part of the section. If the person fulfils that condition, then what is relevant is his opinion expressed by conduct. If the person fulfils that condition, then what is relevant is his opinion expressed by conduct. Opinion means something more than mere retaling gossip or of hearsay; it means judgment or belief that is a belief or conviction resulting from what one thinks on a particular question. The belief or conviction may manifest itself inconduct or behaviour which indicates the existence of the belief or opinion. What the section says is that such conduct or outward behaviour as evidence of the opinion held is relevant and may, therefore, proved. The learned counsel has also referred to Bhaurao v. State of Maharashtra, AIR 1965 S.C. 1564 in which another learned Bench of the Supreme Court has held that Section 17 of the Hindu Marriage Act makes the marriage between two Hindus void if two conditions are satisfied (i) the marriage is solemnized after the commencement of the Act and (ii) at the date of such marriage either party had a spouse living. The word 'solemnize' means in connection with a marriage to celebrate the marriage with proper ceremonies and in due form.' It follows, therefore, that unless the marriage is celebrated or performed with proper ceremonies and due form it cannot be said to be 'solemnized.' If the marriage is not a valid marriage according to the law applicable to the parties, no question of its being void by reason of its taking place during the life of the husband or wife of the person marrying arises. If the marriage is not a valid marriage, it is no marriage in the eyes of law. The bare fact of a man and a woman living as husband and wife does not, at any rate, normally give them the status of husband and wife even though they may hold themselves out before society, as husband and wife and the society treats them as husband and wife. 7. Judged from the above criteria, the defendant-respondent has neither produced any evidence to show that his mother's marriage with Gopal was duly solemnized, nor has he produced admissible evidence from a person who could depose about his relationship with Gopal on the basis of his special knowledge. His only other witness, part from himself, about relationship is Khunkhun, D.W. 1, who is not even a resident of the same village Nasopur, but in fact lives in another village named Rampur Kalan. His only other witness, part from himself, about relationship is Khunkhun, D.W. 1, who is not even a resident of the same village Nasopur, but in fact lives in another village named Rampur Kalan. He admits that he has no relationship with Gopal. This witness says that he does not know about the marriage of Gopal and the name of the wife of Gopal. He does not know where daughters of Gopal are married. He does not know the age of younger daughter of Gopal. He of course says that the age of eldest daughter of Gopal is 55 years. Now, Ram Karan has admitted that he has an elder sister named Bhanumati, but he also says that he does not know the name of maternal grandfather of Bhanumati. Later, he corrects himself and gives the name of maternal grandfather of Bhanumati. This witness of the defendant-respondent in no way proves either the marriage of the mother of Ram Karan with Gopal or the relationship of Ram Karan with Gopal. On the other hand, the plaintiff-appellant has produced consistent oral evidence to the effect that Gopal brought the widow of Sahdeo to his house and Ram Karan, who was the son of Sahdeo, came to the house of Gopal along with his mother at the age of 2 years. The evidence of Kutumb register and Voters' List is of course conflicting. However, the Voters' List, which is prepared under the Representation of People Act is merely evidence to the effect that a particular evidence to the effect that a particular person fulfils the conditions to be recorded as a voter in the general elections, i.e., to say he is of above the prescribed age and is resident of the area to which the List relates. The Kutumb Register, which is on the other hand prepared under the provisions of Panchayat Raj Act is the more comprehensive evidence regarding composition of the family; relationship of one member of the family with another, approximate age and place of residence of the persons. Thus, where the relationship of a particular person is in question the Kutumb register is to be given greater weight than the Voters List. Thus, where the relationship of a particular person is in question the Kutumb register is to be given greater weight than the Voters List. The courts bellow have erred in law in ignoring the entries in the Kutumb register only on the ground that the copy of the Kutumb register was obtained on May 15, 1970, i.e., during the pendency of the case. Naturally, the plaintiff would have obtained the copy of the extract from Kutumb register during the pendency of this suit for filing as his documentary evidence. There is nothing objectionable or unnatural in this. If the trial court had any doubt abut the genuineness of this extract, it could have easily summoned the original Kutumb register and also verified the date and year in which the entries in the Kutumb register were actually recorded. The court below, however, did not bother to do this. Thus, they have erred in law in omitting to consider this material piece of evidence. 8. Learned counsel for the plaintiff-appellant also contended that various revenue receipts filed by he plaintiff-respondent and admission of the defendant-respondent go to show that the plaintiff-appellant was throughout in possession of the land in dispute and the respondent was never in possession. It would appear that the plaintiff-appellant filed as many as 34 land revenue receipts which were in his possession. It would appear that the plaintiff-appellant filed as many as 34 land revenue receipts which were in his possession, whereas the defendant-respondent filed no rent receipt at all. It has been the consistent view of various courts that possession of rent receipts is very good evidence of cultivatory possession on land. If the defendant-respondent was really co-tenant and was really in joint possession, at least some of the rent receipts should have been in his possession as well. Further, the defendant respondent, Ram Karan, himself has admitted in his cross-examination that the has no plough and bullocks with him. This fact coupled with the absence of any rent receipt in his possession clearly goes to show that he is not in possession. He also deposed that he could not bring any witness from his village because none of the villagers was in his favour. He further admits that he is doing business of fishing. It is indeed surprising that the courts below have not considered the question of possession at all. He also deposed that he could not bring any witness from his village because none of the villagers was in his favour. He further admits that he is doing business of fishing. It is indeed surprising that the courts below have not considered the question of possession at all. It is true that if co-tenancy is proved the question of possession is not relevant as the possession of one co-tenant is to be admitted to be the possession of other. But in the present case, co-tenancy has not been proved at all and, therefore, no such presumption of joint possession in favour of the defendant-respondent could be made and the courts below should have considered whether the plaintiff-appellant was alone in cultivatory possession or whether his possession was joint with the defendant-respondent. 9. The learned counsel for the appellant has further contended that the fact that the defendant-respondent does not know that he is the son of Sahdeo shows that he does not have he courage to deny his real parentage. The learned counsel for the appellant has also contended that the defendant-respondent by conceding that he does not know the name of the Nana of Bhanumati whom he claims to be his sister admits that he never had any connection with the family of the plaintiff-appellant. The learned counsel has also contended that the witness Khunkhun, who appeared on behalf of the defendant-respondent, stated on oath that Gopal died about 35 years back and that he remembers the facts only upto 10/12 years and that he could not tell the facts prior to 10/15 years. This shows that the statement of the witness, Khunkhun, is only hearsay and cannot be relied upon. This contention is certainly borne out from the record. 10. The result is that I find that the courts below have erred in law in ignoring material piece of evidence and their findings are perverse. The plaintiff-appellant has succeeded in proving his case by overwhelming oral and documentary evidence. The appeal is, there-fore, allowed, the judgments of the courts below are set aside and the suit is hereby decreed.