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2004 DIGILAW 507 (PNJ)

Jaswinder Singh/Defendants v. Baljinder Singh/Defendants

2004-04-30

M.M.KUMAR

body2004
JUDGMENT M.M. Kumar, J. - This is defendants appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code) challenging the judgment and decree dated 18.8.2003 passed by the learned Additional District Judge, Muktsar partially reversing the judgment and decree dated 1.9.1999 of Civil Judge (Jr. Division), Muktsar. The Civil Judge vide her judgment and decree dated 1.9.1999 had dismissed the suit of the plaintiff-respondents wherein claim for possession was made against the defendant-appellants. The claim made in the suit was based on the allegation that the sale deeds dated 9.7.1982, 30.7.1982 and 12.11.1982 were liable to be declared as illegal. It was alleged that at the time of execution of the sale deed by Balbir Singh defendant-respondent No. 2, Baljinder Singh plaintiff-respondent No. 1 was minor. It was pleaded that date of birth of plaintiff-respondent No. 1, Baljinder Singh was 29.12.1964 and on the date of execution of three sale deeds, he was minor and his father Balbir Singh used to manage the property being Karta of the family. The suit was dismissed by the trial Court in its entirety by recording the finding that at the time of execution of the sale deeds Ex. PW1/A, Ex. PW1/C and Ex. PW1/D, plaintiff-respondent No. 1 Baljinder Singh was hail and hearty and he was major being about 20 years of age at that time. The trial Court also found that date of birth of plaintiff-respondent No. 1 Baljinder Singh was 23.2.1964 on the basis of records of the Khalsa Higher Secondary School, Sri Ganga Nagar. Reliance was also placed on Middle Standard examination certificate Ex. D6 and the admission form Ex. DW3/A to conclude that date of birth of plaintiff-respondent No. 1 is 23.2.1964. In the presence of school record, the certificate Ex. P1 issued by the Registrar of Births and Deaths showing the date of birth of plaintiff-respondent 1 to be 29.12.1964 was discarded and accordingly, the trial Court held that plaintiff-respondent No. 1 was a major on the date of execution of the sale deeds Ex. PW1/A dated 9.7.1982, Ex. PW1/C dated 30.7.1982 and Ex. PW1/D dated 12.11.1982. 2. The lower Appellate Court, however came to the conclusion that certificate Ex. PW1/A dated 9.7.1982, Ex. PW1/C dated 30.7.1982 and Ex. PW1/D dated 12.11.1982. 2. The lower Appellate Court, however came to the conclusion that certificate Ex. P1 recording the date of birth of plaintiff-respondent No. 1 as 29.12.1964 has to be accepted because it has been issued by the competent authority under the Births, Deaths and Marriages Registration Act, 1886 (for brevity, the Act). Reliance has been placed on a judgment of Lahore High Court in the case of Mohammad Hasan v. Safdar Mirza and others, AIR 1933 Lahore 601, laying down that evidence regarding the date of birth as recorded in the birth register cannot be replaced by an entry in the records of educational institution. The view of the learned Additional District Judge reads as under :- "In the face of clear law laid down in Mohammad Hassan v. Safdar Mirza and others (supra) that evidence as to age in birth register cannot be rebutted by entry in records of education institution, there is no alternative but to accept the date of birth of the plaintiff as 29.12.1964 as given in his birth certificate Ex. P.1 which is admissible under Section 9 of Births, Deaths and Marriages Registration Act, 1886 and is also admissible under Section 35 of the Evidence Act. The certificate Ex. P.1 shows that birth of the plaintiff was reported to the concerned official on 17.4.1965 within four months of the birth of the plaintiff. It was for the defendants to summon the record of the Registrar of Births and Deaths, Faridkot which has issued this certificate and to prove that it is wrong, but no official of that office was summoned by the defendants. The admission of the plaintiff in the Government High School Harike Kalan in the first class was got made on 8.4.1970 by Balwinder Kaur PW.5 minor sister of the plaintiff and not by the father or mother of the plaintiff, much later than the birth of the plaintiff was reported to the concerned official on 17.4.1965. Therefore, the date of birth reported by PW.5 in the school is on the face of it wrong and rather it may be said that she could not know it and rather an imaginary date of birth seems to have been noted in the form ex. DW6/A by the Head Master or any other Teacher of the School. Therefore, the date of birth reported by PW.5 in the school is on the face of it wrong and rather it may be said that she could not know it and rather an imaginary date of birth seems to have been noted in the form ex. DW6/A by the Head Master or any other Teacher of the School. Consequently, I hold that the date of birth of the plaintiff is 29.12.1964 and to that extent finding of the learned Trial Court given under issues No. 1 and 3-A is reversed and this point is decided in favour of the plaintiff and against the defendants. The finding on issue No. 3 is also reversed and this issue is decided against the defendants because no act of a minor can estop him from claiming his rights as per law after attaining majority. Similarly, the collusion of the plaintiff with his father would make no difference if it is proved that the plaintiff was minor at the relevant time. As such, finding of the learned Trial Court on issue No. 3-A is also reversed and this issue is decided against the defendants." 3. On the basis of aforementioned findings, it was to be found whether the suit filed by plaintiff-respondent No. 1 is barred by time or whether the defendant-appellants have become owner of the suit property by adverse possession. The learned Additional District Judge found that although the sale deeds were void having been executed by the minor but under Section 65 of the Limitation Act, 1963, the suit could have been filed only upto 29.12.1994 i.e. within twelve years of attaining majority which plaintiff-respondent No. 1 attained on 29.12.1982. In this regard reliance has been placed on Sections 6 and 8 of the Limitation Act, 1963. However, the suit was filed on 8.10.1994 rendering the claim as time barred in respect of the sale deeds executed on 9.7.1982 and 30.7.1982 because the defendant-appellants have perfected their title by way of adverse possession in respect of the land which is subject matter of aforementioned two sale deeds. However, the learned Additional District Judge found that the third sale deed dated 12.11.1982 would still be within the period of limitation and the suit of plaintiff-respondent No. 1 in respect of land measuring 8 kanals covered by the sale deed dated 12.11.1982 was accordingly decreed. 4. Mr. However, the learned Additional District Judge found that the third sale deed dated 12.11.1982 would still be within the period of limitation and the suit of plaintiff-respondent No. 1 in respect of land measuring 8 kanals covered by the sale deed dated 12.11.1982 was accordingly decreed. 4. Mr. J.S. Brar, learned counsel for the defendant-appellants has argued that the evidence regarding the date of birth based on the school record as relied by the learned trial Court could not be discarded in preference to Ex. P1, the certificate issued by the Registrar of Births and Deaths. The learned counsel has pointed out that father of plaintiff-respondent No. 1 has himself verified his date of birth in the application form Ex. DW8/A submitted to the school for admission when he was got admitted in Government Middle School, Maur, where the date of birth of plaintiff-respondent No. 1 recorded is 23.2.1964. He also relied upon the transfer certificate of plaintiff-respondent No. 1 Ex. DW5/A and the entry of admission register of Government High School, Harike Kalan Ex. DW3/D. The learned counsel has further emphasized that the admission form Ex. DW1/A also shows his date of birth to be 23.2.1964. On the basis of aforementioned overwhelming evidence, the learned counsel has argued that the finding has been replaced by the lower Appellate Court merely on the basis of a certificate Ex. P1 issued by the Registrar of Births and Deaths, wherein the date of birth of plaintiff-respondent No. 1 is recorded to be 29.12.1964. The learned counsel has maintained that once the date of birth of plaintiff- respondent No. 1 is found to be 23.2.1964, then he would be deemed to be the major and his whole suit is liable to be dismissed and the judgment and decree passed by the learned trial Court deserves to be restored. The learned counsel has also argued that sufficient Court fee has not been paid as the suit has not been properly valued for the purposes of Court fee and jurisdiction. According to the learned counsel, the payment of Court fee on the basis of ten times of the land revenue of the suit land for the purposes of Court fee and thirty times the land revenue for the purposes of Court fee and declaration at Rs. 195/- is absolutely illegal and the Court fee ad valorem was also required to be paid. 5. 195/- is absolutely illegal and the Court fee ad valorem was also required to be paid. 5. After hearing the learned counsel at a considerable length, I am of the view that this appeal is devoid of merit and the same is liable to be dismissed. Under Section 9 of the Act, it has been provided that the certificate issued by the Registrar General of Births, Deaths and Marriages or an officer authorised by him shall be admissible in evidence for the purposes of proving the birth. 6. It is appropriate to mention that the Act has been extended to Punjab by Punjab Act No. 5 of 1950. Section 9 of the Act reads as under :- "9. Copies of entries to be admissible in evidence. - A copy of an entry given under the last foregoing section shall be certified by the Registrar General of Births, Deaths and Marriages, or by an officer authorised in this behalf by the State Government, and shall be admissible in evidence for the purpose of proving the birth, death or marriage to which the entry relates." The use of word shall in Section 9 of the Act would clearly show that the certificate issued by the officer authorised under the Act would be a prima facie evidence and it would raise a rebuttable presumption. However, the Court must accept such evidence as genuine and relevant. There are valid reasons for accepting such evidence as genuine because the intimation with regard to birth of a child is always sent immediately and in any case long before the time there is any possibility of interpolations or motivations. On the contrary, the date of birth entered in the school record subsequently may or may not be proper to rely upon in the presence of certificate issued by the Registrar of Births and Deaths because such date of birth is given to the school years after the birth of a child and it may be actuated by other considerations. It is trite to observe that many a times an incorrect date of birth is given in order to gain more years of service or to acquire mileage in the litigation. Even otherwise, the certificate issued by the Registrar of Births and Deaths is based on official record which would outweigh the other records. It is trite to observe that many a times an incorrect date of birth is given in order to gain more years of service or to acquire mileage in the litigation. Even otherwise, the certificate issued by the Registrar of Births and Deaths is based on official record which would outweigh the other records. More than seventy years ago, a Division Bench of the Lahore High Court in Mohammad Hassans case (supra) observed as under :- "It is very common to make out a person entering a school to be younger in age than he is, in order not to be too old for Government employment when his education is completed and for other reasons. The mere entry, therefore, of the date, 5th May 1906, in the records of these educational institutions does not seem to me to be sufficient to rebut the very strong evidence that he was born on 29th January, 1903...." 7. When the above principles and rationale are applied to the facts of the instant case, it becomes evident that the date of birth as entered in the register of the Registrar of Births and Deaths and so recorded in the certificate Ex. P1 issued by him has to be considered more genuine. It deserves to be preferred to the school record. As a result, it is affirmed that date of birth of the plaintiff-respondent No. 1 is 29.12.1964. The plaintiff-respondent No. 1 attained majority on 28.12.1982 and could have filed a suit before the defendant-appellants perfected their title by adverse possession. The sale deeds reciting delivery of possession executed on 9.7.1982 and 30.7.1982 would thus be hit by limitation whereas the sale deed dated 12.11.1982 would not be so hit as the suit has been filed on 8.10.1994. Therefore, there is no room to interfere in the findings recorded by the learned Additional District Judge which are based on correct appreciation of evidence and law. The appeal does not raise any substantial question of law warranting its admission under Section 100 of the Code and the same is liable to be dismissed. 8. For the reasons recorded above, this appeal fails and the same is dismissed. Appeal dismissed.