Dharamraji v. Ram Chandar — 1983 DIGILAW 695 (ALL)

JUDGMENT R.S. Varma, Member- Smt. Dharamraji applied for acquisition of bhumidhari rights over her share in some land situated in village Daulatabad and on 8-2-1972 an order was passed for issuance of bhumidhari sanad in her name. On 5-8-72 Ram Chandar filed an application to the effect that Smt. Dharamraji had died in 1969 ana another woman fraudulently impersonating in her name had moved an application for bhumidhari rights. He, therefore applied for cancellation of bhumidhari sanad. Smt. Dharamraji appeared before the court and asserted that she had transferred her share in the land to Gorakh Singh and had delivered possession to him. After inquiry the learned trial court came to the conclusion that Smt. Dharamraji had died in 1969 and so could not have given any application for issuance of a bhumidhari sanad. The learner trial court accordingly cancelled bhumidhari sanad. 2. Against that order an appeal was filed in the court of the learned Commissioner, Gorakhpur. At first the appeal was heard by the Addl. Commissioner who remanded the case on certain grounds. The learned trial court again gave a similar judgment and another appeal was filed, and it was heard by Sri R.K. Goel, learned Commissioner, Gorakhpur Division. The learned Commissioner dismissed the appeal but he did not independently discuss the evidence on record. 3. Now a revision has been filed against the order of the learned Commissioner. It has been argued by the learned counsel for the revisionist that the judgment of the learned courts below are perverse, in so far as they did not discuss the evidence of the parties critically and also because they ignored vital evidence. The learned counsel for the O.P. argued that a concurrent finding of fact assumes deferent sanctity and cannot be set aside even by the second appellate court, what to say of a revisional court. This proposition of law is correct but where there is perversity in the judgments of the courts below the revisional court is bound to interfere with the findings given by the learned courts below. In this case I find that the approach of the learned lower court is basically wrong and hence the findings arrived at by them are inherently illegal and are liable to be set aside. 4. In this case I find that the approach of the learned lower court is basically wrong and hence the findings arrived at by them are inherently illegal and are liable to be set aside. 4. What was involved in this case was a decision whether a certain person namely Smt. Dharamraji who claimed to be alive and appeared in court and gave evidence on oath, was dead. This is a very serious matter and cannot be lightly taken by any court or authority. When a person says that he is alive and some other person says that he is dead the burden of proof of death will be on the other person who asserts it and in such situation the evidence of the parties have to be critically examined. 5. Before further proceeding it would be relevant to state out certain facts which have been brought out in other proceedings. In this village there had been consolidation operations and the name of Smt. Dharamraji was recorded as tenant of certain land. On 21.6.69 Ram Chandar (O.P. of this case) moved a mutation application stating that Dharamraji was dead and that his name be mutated in her place. On 6.8.69 the A.C.O. allowed this application but later on when Smt. Dharamraji came forward and challenged this order the A.C.O. withdrew it and referred the matter to the Consolidation Officer. Before the Consolidation Officer the matter was hotly contested between the parties and on 28-2-70 the Consolidation Officer gave a finding that Smt. Dharamraji was alive and there was no question of any mutation. Against that order Ram Chandar preferred an appeal which was dismissed on 29-8-70 by the A.S.O.C. Ram Chandar again went up in revision but that revision was dismissed by the Asstt. Director of Consolidation on 23-11-71. In these consolidation proceedings it was held that Smt. Dharamraji was alive, that the person who claimed to be Smt. Dharamraji was not Smt. Marachhi an has been alleged by Ram Chandar and that the entry about the date of death of Dharamraji had not been proved and that it was suspicious on account of the fact that in the death register it was mentioned as 28-3-69 while in the Kutumb Register it was mentioned as 30-3-69. The matter was concluded and it was the end of one chapter in this hotly contested case about the death of Smt Dharamraji. 6. The matter was concluded and it was the end of one chapter in this hotly contested case about the death of Smt Dharamraji. 6. After the close of the consolidation proceedings Ram Chandar again moved mutation application before the Tahsildar on the same grounds. That application was entertained and was allowed by the learned Tahsildar on 30-10-73. Smt. Dharamraji filed a revision in the court of Addl. Collector who on 24-1-74 made a reference to the Board of Revenue that the order of the Tahsildar be quashed. That reference was heard by Sri H.N. Agarwal learned Member who on 25-6-77 accepted the reference and quashed the order of the Tahsildar. Ram Chandar again filed a review petition in the Board of Revenue against the order of the court. That review petition was decided on 10-9-82 by Sri S. K. Sahgai the then Chairman of the Board of Revenue and Sri I.B. Singh the learned Member. This review petition was dismissed. In all these proceedings all the learned courts from Addl. Collector to the Board of Revenue held that the matter could not be re-agitated in the revenue courts after it had been finally settled by the consolidation courts. 7. And then as I have already mentioned on 1-12-71 Smt. Dharamraji applied for bhumidhari sanad. Notices were issued to the co-tenure-holders but report was that they had refused to take notice. On 8.2 .72 the order was passed for granting bhumidhari sanad to Smt. Dharamraji. Smt Dharamraji transferred her rights in the land in suit to Gorakh Singh who is one of the parties here in this case. On 5.8.72 Ram Chandar filed an application for cancellation of the bhumidhari sanad on the ground that Smt Dharamraji had died in the year 1969 and that some imposter had filed application for issuance of bhumidhari sanad and that the order granting sanad was illegal and without jurisdiction. The Tahsildar cancelled the bhumidhari sanad and the learned Commissioner also affirmed that decision. 8. The learned Tahsildar did not at all discuss the evidence of Smt Dharamraji and her witnesses and gave no reason whatsoever for the disbelieving that evidence. He did not even discuss the evidence of the witness of Ram Chandar and accepted their statement as true without looking into infirmities which have been brought out in their cross examination. 8. The learned Tahsildar did not at all discuss the evidence of Smt Dharamraji and her witnesses and gave no reason whatsoever for the disbelieving that evidence. He did not even discuss the evidence of the witness of Ram Chandar and accepted their statement as true without looking into infirmities which have been brought out in their cross examination. If cross examination of witness is completely ignored by the court of law then it is a matter which must be termed as illegal. Then what would be the purpose of cross examination if the court of law were to ignore it completely. When material facts have been elicited in cross examination and those facts go to disprove the statement of those witnesses or land to make their probative value almost nil, it would be a travesty of justice where in spite of these infirmity the courts of law do not attach any value to those facts and simply believe the statements made by the witness in examination in chief. Such approach is wholly illegal and is also perverse and it is serious error of law which must be rectified by superior courts of law. 9. The learned Tahsildar did not attempt to discuss as to why there was discrepency in the date of death of Smt. Dharamraji mentioned in the death register and the kutumb register respectively. Not only that the learned trial court did not consider who made those entries in the death register and the kutumb register. A copy of public document is of course admissible in evidence but it does not mean that it must be accepted as gospel truth about the statements which are made in those public documents. In this case two different statements about the death of Smt. Dharamraji were made in the death register and kutumb register and both of them were seriously challenged by Smt. Dharamraji herself. Then it was the duty of the court to look for proof of these entries and those entries can be proved only by the person who made it in those public documents. None of the witness of Ram Chandar stated as to who made those entries in those public documents. The learned courts below also did not consider the fact as to who was the person who informed the said public authority about the death of Smt. Dharamraji. None of the witness of Ram Chandar stated as to who made those entries in those public documents. The learned courts below also did not consider the fact as to who was the person who informed the said public authority about the death of Smt. Dharamraji. By not considering these vital aspects of the case the learned courts below committed serious illegality in the exercise of their jurisdiction and it was only because of this fact that they arrived at a perverse finding. Another very serious matter which was completely ignored by the learned courts below is that during consolidation proceedings this very question was hotly agitated by Ram Chandar and on a thorough inquiry and for weighty reasons the consolidation courts disbelieved the case of Ram Chandar that Dharamraji was dead. These considered judgments of consolidation courts were referred to the judgment of the trial court but their value or relevancy was not kept into consideration. I do not say that those judgments of the consolidation courts are res judicata but this fact must be admitted that those judgments were given by competent courts of law after fully discussing the evidence of the parties given in those proceedings. At least those judgments could not be ignored in summary proceedings like case under section 134/137 Z.A. and L.R. Act. And those judgments were sufficient to make revenue court on guard about giving hasty and unconsidered opinion about that fact. In the context of these findings of the consolidation courts, revenue courts were duty bound to critically examine the respective case of the parties regarding death of Dharamraji, specially when Smt. Dharamraji herself appeared and gave evidence on oath and nothing material could be elicited in her cross examination to discredit her evidence. 10. Lastly, the learned courts below gave a wrong finding that Smt. Marachhi had deposited 20 times rent for obtaining bhumidhari sanad and that she was impersonating as Smt. Dharamraji. This finding was given by the courts below on the ground that in village Roopanandpur a woman of the name of Smt. Marachhi was mentioned in the kutumb register. This alone was not sufficient to prove the fact that Smt. Marachhi had impersonated as Smt. Dharamraji or that she had deposited 20 times rent for obtaining bhumidhari sanad. 11. This finding was given by the courts below on the ground that in village Roopanandpur a woman of the name of Smt. Marachhi was mentioned in the kutumb register. This alone was not sufficient to prove the fact that Smt. Marachhi had impersonated as Smt. Dharamraji or that she had deposited 20 times rent for obtaining bhumidhari sanad. 11. When the matter came up before the learned Commissioner Sri R.K. Goel in first appeal he did not take the trouble of discussing oral or the documentary evidence on the record and completely failed in his duty as appellate court. The only discussion which the learned Commissioner made in his appellate judgment is as follows. "I have heard the learned counsel for the parties and have gone through material on record. The oral and documentary evidence has been fully discussed by the lower court and I do not find any fault with the finding arrived at by it. It should not have been very difficult for the appellant to establish her proper identity but this does not appear to have been done." I have shown above that the learned trial court had not fully discussed the oral and documentary evidence on record. At this place I may place an english translation of what the learned trial court has said about the evidence. The learned trial court did not discuss the oral evidence of the patties. After mentioning the names of the witnesses and some of the documents the learned trial court straight away said as follows :-"It is clear from the above narration that Smt Dharamraji had died and this fact is proved by the kutumb register of village Daulatabad in which the date of death of Smt. Dharamraji is mentioned as 30-3-69 and which is also proved by the statement of Ram Raj Pradhan." Thus we see that the learned trial court placed full reliance on the entry of death made in the kutumb register even if that entry had not been proved by any of the witness. Needless to say that entries made in public document cannot be accepted as gospel truth, though they are admissible in evidence. Needless to say that entries made in public document cannot be accepted as gospel truth, though they are admissible in evidence. There is a great deal of difference between admissibility and proof of admissible evidence is not proved and probative value of evidence on the record has to be assessed by critically examining the evidence and by doing so materials brought out in cross examination must also be considered. Thus the learned Commissioner committed an illegality by not himself assessing the evidence of the parties and by accepting as truth the findings of fact given by the learned trial court though that court had given that finding without discussing the oral and documentary evidence of the parties. The learned Commissioner was also influenced by the fact that at the time of grant of sanad or immediately proceeding that date notices were not issued to the co-tenure holders and that if they were issued there was no proper service on them. His observation may be stated here, "moreover it is found that when the application for bhumidhari rights was moved the co-tenure-holders were not properly informed. Respondent Ram Chandar is one of the recorded co-tenure-holders and the processerver reported that notice had been refused. It does not stand to reason that the co-tenure-holders who latter appeared and moved the court for setting aside the earlier orders etc. would have allowed the proceedings to be determined ex parte against him by refusing service. This is unjust to illustrate that the proceeding for acquisition of bhumidhari rights were also defective as proper service on the co-tenure-holder does not appear to have been ensured." Here none of the witnesses of Ram Chandar stated on oath in the court that service was not affected on him. The matter was perhaps not in controversy in this case and none of the parties led evidence on this point. It is common knowledge that refusal to take notice is considered as sufficient service and the Tahsildar who had ordered issuance of sanad in the name of Smt. Dharamraji had considered this service by refusal as sufficient. Now without evidence on record the learned Commissioner held that no proper service was ensured and by doing so he entered into in the realm of speculation. The proceedings resulting in the grant of sanad could not be held illegal on this speculatory ground. 12. Now without evidence on record the learned Commissioner held that no proper service was ensured and by doing so he entered into in the realm of speculation. The proceedings resulting in the grant of sanad could not be held illegal on this speculatory ground. 12. The evidence about the death of Smt. Dharamraji consisted of oral and documentary evidence. I have already discussed documentary evidence and have shown that the entries made in it were not proved, the person who made it had not been examined and the person who had given the information of death had not been mentioned in any of these documents. So the statements made in these documents were not of any probative value, and specially so when there was one date given in the kutumb register. And another in the death Register. These entries were liable to be completely ignored by any court of law in cases where those very entries were disputed. As regards the oral evidence it may be mentioned that Smt. Dharamraji was a Brahman and it has come in evidence that there were 40-50 houses of that caste in village Daulatabad. The only person of that caste, who appeared in this case, is Ram Chandar who is a party to this case and who is highly interested witness and who had made several attempts to get the property of Smt. Dharamraji. Even when he lost in mutation case in the consolidation courts he did not hesitate to file a fresh mutation case in the court of Tahsildar on the same grounds. This amply illustrates how eager he is to grab the property of Smt. Dharamraji by any means. The other witnesses are of another caste and they are inimical witnesses; Most important witness of Ram Chandar is Ram Raj Singh, Pradhan whose statement has been blindly accepted by the learned courts below. He is an inimical witness. He said that Smt. Dharamraj died in her father's house in other village but later on when his statement was again recorded after remand he stated that Smt. Dharamraji died in Daulatabad, the village in which he resides. He does not know the name of the village where Smt. Dharamraji's father lived. He does not know any of the relatives of Smt. Dharamraji. He does not know the name of the village where Smt. Dharamraji's father lived. He does not know any of the relatives of Smt. Dharamraji. In the first statement he said that at the time of death Dharamraji was 85 years old but later on when his statement was again taken he said that Smt. Dharamraji was 40-45 years of age when she died. He was not present at the time of death of Smt. Dharamraji and did not participate in her last rites. He said that he did not make the entries about the death of Smt. Dharamraji in the death register or the kutumb register. He said that no person ever informed him about the death of person of his Gaon Sabha and that he does not make any inquiry about the correctness of that information. He said that all these matters are done by the Secretary of the Gaon Sabha and not by him. His evidence was not worthy of credence and yet it was treated as credible by means of simple expedient like ignoring all these matters which had been elicited in cross examination and which were sufficient proof to shake his credibility. 13. The next witness is Ram Asrey Singh. He is also a person of another caste and was a co-accused with the Pradhan in a criminal case against Gorakh Singh who is a party to this case and who has got the land in suit by means of a registered sale deed. He said that Smt. Dharamraji died near about 1968. The case of Ram Chandar is that Smt. Dharamraji died in 1969. A difference of an year or so is not very much material in ordinary circumstance but where an alive person is said to be dead, every statement must be judged strictly and no latitude can be given in this respect. He was not present at the time of the last ceremony of Smt. Dharamraji. He said that at the time of death Smt. Dharamraji was 50-52 years old. He does not know as when Smt. Dharamraji's husband died. On these grounds his evidence was not worth reliance. Ram Chandar witness is an interested person and he is very much interested in getting the land in suit and for this very purpose he had converted a case that Smt. Dharamraji was dead. He does not know as when Smt. Dharamraji's husband died. On these grounds his evidence was not worth reliance. Ram Chandar witness is an interested person and he is very much interested in getting the land in suit and for this very purpose he had converted a case that Smt. Dharamraji was dead. He could not get a single witness of that community to state about the death of Smt. Dharamraji. The burden of proof was on him. He instead got two witnesses of another caste to depose about that fact and both of these two witnesses are inimical witnesses. The oral evidence accused on behalf of Ram Chandar is not at all worth credence. Against this Smt. Dharamraji examined herself, Mool Chand and Gorakh. No serious cross examination was done in regard to Smt. Dharamraji and there is absolutely no reason why her un-shaken testimony should not be believed. She appeared in court and stated on oath that, she was alive and yet the learned courts below, without discussing her evidence and without showing any reason as to why her statement should be rejected, held that she was dead. I cannot coceive of such a perserve approach by the courts of law. The evidence of her witnesses were also not discussed and no reason had been given as to why their evidence should be rejected. I have gone through their examination in chief and cross examination and found nothing in their statements which goes to weaken their testimony. The learned courts below committed a grave error of law by not considering the evidence of Smt. Dharamraji and her witnesses. 14. In spite of the fact that the concurrent findings of fact are binding on ordered appellate court and the further fact that revisional court have no jurisdiction to enter into facts, I have considered the evidence of the parties in great details only to show the wrong approach of the learned courts below or to say it more appropriately, lack of any judicial approach by the learned courts below. In AIR 1983 (S.C.) page 839 in a criminal case against acquittal recorded by the High Court under Section 303 IPC the learned Supreme Court observed as follows. "In case of murder the approach made by the High Court in appreciating the evidence of the witnesses was purely wooden, artificial and based on pure speculation. In AIR 1983 (S.C.) page 839 in a criminal case against acquittal recorded by the High Court under Section 303 IPC the learned Supreme Court observed as follows. "In case of murder the approach made by the High Court in appreciating the evidence of the witnesses was purely wooden, artificial and based on pure speculation. The grounds taken and process of reasoning adopted by the High Court for disbelieving injured eye witness was manifestly wrong and perilously borders on perversity. The High Court did not consider the vital point involved in the case. The High Court committed a serious error of law which is sufficient to vitiate their judgment. 15. This ruling has been cited by me with a view to elucidate that where the courts of law ignore vital piece of evidence and do not consider the oral and documentary evidence on record and do not keep their minds open while appreciating the evidence of the witnesses, they commit a blatant perversity and such perversity must be rectified by the second appellate court or even by the revisional court. In this case I have demonstrated in detail that both the learned courts below completely ignored the evidence on record and come to a finding that was only a result of wooden approach. So in this rarest of rare case I set aside the concurrent finding of fact given by the courts below and set aside their judgments and hold that Smt. Dharamraji was alive and that she was a person who had applied for bhumidhari sanad and that the sanad could not be cancelled, by the learned Tahsildar. The revision is, therefore, allowed with costs and Rs. 50/- as counsel's fee.