Research › Search › Judgment

Bombay High Court · body

2008 DIGILAW 944 (BOM)

Jayant Gopalrao Pachade v. Motilal Kuber Kanoje

2008-07-04

A.P.BHANGALE

body2008
JUDGMENT:- By this appeal, the appellant has challenged the judgment and decree dated 23rd October, 1991 passed by the 4th Additional District Judge, Akola in Regular Civil Appeal No.306 of 1988 whereby the 1st appellate Court allowed the appeal setting aside judgment and decree dated 30-6-1988 passed in Regular Civil Suit No.90 of 1986 by the Civil Judge, Junior Division, Murtizapur. 2. The facts which appear from record may be briefly stated as under: Present appellant-original plaintiff filed suit on 9th July, 1986 with a prayer to set aside alienation made by plaintiff's father Gopal (original defendant No.2) in favour of present respondent No.1 Motilal Kuber Kanoje (original defendant No.1). According to plaintiff, he was born on 15th August, 1965. There was partition of ancestral property on 22-6-1967 and he was allotted 22 acres of land. Income from the share in property allotted to him was sufficient and his guardian-father purchased suit land for a sum of Rs.6,000/- under a registered sale deed dated 21-5-1969. His father, defendant No.2 sold suit land to defendant No.1 on 10-7-1974 out of no legal necessity and without any benefit to the estate of plaintiff (minor). Plaintiff came to know about the sale of property by defendant No.2 to defendant No.1 and, therefore, he issued notice through advocate on 9-1-1984 to defendant No.1. Defendant No.1 replied the same and denied plaintiff’s title. It is in this backdrop that suit came to be filed claiming that it was filed within the period of limitation. 3. Defendant No.1 in his Written Statement that the alleged partition was nominal, just to avoid the clutches of Ceiling Act and was never acted upon. It was contended that the sale was effected for education purpose and for cultivation of lands and there did exist legal necessity. He denied date of birth of plaintiff and prayed for dismissal of suit. 4. Learned Trial Court framed the issues and after recording evidence and hearing the parties, concluded that there was partition which was acted upon; alienation in favour of defendant No.1 was for legal necessity; suit was not barred by limitation and consequently granted declaratory relief, as prayed for by the plaintiff. 5. Being aggrieved by the judgment and decree rendered by the Trial Court, original defendant No.1 filed appeal. The 1st appellate Court held that the suit was barred by limitation and that the sale was for legal necessity. 5. Being aggrieved by the judgment and decree rendered by the Trial Court, original defendant No.1 filed appeal. The 1st appellate Court held that the suit was barred by limitation and that the sale was for legal necessity. The 1st appellate' Court accordingly allowed the appeal. It is against this judgment and decree that the present appeal has been filed by appellant-original plaintiff. 6. This appeal has been admitted on 30-11-1993 and grounds No.1, 3 and 5 set out in the memo of appeal have been treated as substantial questions of law which read as under: "1. That having correctly held that the property in suit was owned by the plaintiff, the transfer of the same during his minority by the defendant No.2 without obtaining requisite permission as provided under Section 8 of the Hindu Minority and Guardianship Act was voidable in so far as the plaintiff was concerned and the suit for possession as filed by him admittedly within 12 years from the date on which the property was alienated was clearly within time and on any view of the matter, the suit could not be said to be barred by limitation. 3. That the provisions of Article 60 of the Limitation Act were not at all applicable to the present claim and the learned Additional District Judge was in error in taking the view that the suit as filed was barred. 5. That the plaintiff's entitlement to the property belonging to him had duly been established and there was no question of any legal necessity as such having been relevant and in any event in the present case for the matter of that no legal necessity whatsoever has been made out particularly when it was the consistent stand of the defendant No.1 that the property belonged to the defendant No.2 and not the plaintiff and therefore, there was no question of any enquiry by him which clearly showed that the entire approach of the learned appellate Judge was clearly contrary to the law." 7. I have heard learned counsel for the parties. Mr. Parsodkar, learned counsel for appellant contended that plaintiff was born on 15-8-1965. Thus, he attained the age of 18 years on or about 15-8-1983 and suit could have been instituted on or before 14-8-1986 and, therefore, suit filed on 9-7-1986 was well within the period of limitation. I have heard learned counsel for the parties. Mr. Parsodkar, learned counsel for appellant contended that plaintiff was born on 15-8-1965. Thus, he attained the age of 18 years on or about 15-8-1983 and suit could have been instituted on or before 14-8-1986 and, therefore, suit filed on 9-7-1986 was well within the period of limitation. Learned counsel for appellant contended that the municipal record in respect of date of birth (Article "A") of appellant was duly proved before the Trial Court, because entry made in respect of date of birth by any public servant in the official course of his public duty carries presumption of correctness with it. The record maintained by the Local Authority unless otherwise disproved is acceptable in evidence. He submits that best evidence being available before the 1st appellate court, it could not have disbelieved the same. He relied on Gopi Chand Arya & Ors. Vs. Sm. Bedamo Kuer & Ors, reported in AIR 1966 SC 231; Dalim Kumar Sain & Ors. Vs. Smt. Nandarani & Anr, reported in AIR 1970 Calcutta 292; Darpal Singh & Anr. Vs. State of H.P. reported in AIR 1981 SC 361 and Smt. Vanajakshamma & Ors. Vs. P. Gopala Krishna reported in AIR 1970 Mysore 305. 8. As against this, learned counsel for respondent No.1 submits that author of relevant birth entry of the appellant should have been examined. This is because appellant was not firm as to his date of birth. He relied upon Om Prakash Berlia & Anr. Vs. Unit Trust of India & Ors, reported in 1983 Mh.L.J. 339, and Dharmarajan & Ors. Vs. Villiammal & Ors, reported in (sic) Mh.L,J. 531. 9. In Gopi Chand Arya's case (supra), certified copy of death register was relied upon. The Supreme Court held that being an entry made by a public servant in the ordinary course of his public duties, the entry in the death register which is a public document, must undoubtedly have a presumption of correctness attached to it, in Dalim Kumar's case (supra), the Calcutta High Court has observed that certified copy of birth certificate is automatic evidence as a public document under the conjoint effect of Sections 35 and 77 of the Evidence Act and it is conclusive evidence unless disproved. Similarly, in Harpal Singh's case (supra), it was argued before the Apex Court that in the absence of the examination of the officer/chowkidar concerned who recorded the entry, it was inadmissible in evidence. However, disagreeing with the argument, the Supreme Court observed that since the entry was made by the concerned official in the discharge of his official duties, it is clearly admissible under Section 35 of the Evidence Act and that it was not necessary for the prosecution to examine its author. Likewise, in Smt. Vanajakshamma's case (supra), the Court held that certified copy of public document may be produced in proof of the contents of the public document. 10. In Om Prakash Berlia & Anr. Vs. UTI and Ors, relied upon by Mr. Madkholkar, learned counsel for respondent No.1, it is held that in cases where secondary evidence is legally permissible evidence as regards execution of the documents has got to be adduced to prove what the document states and merely because document is admitted in evidence that does not prove the contents of the documents. 11. It is settled law that being an entry made by a public servant in the ordinary course of his public duties, the entry in the birth register which is a public document, must undoubtedly have a presumption of correctness attached to it. Certified copy of birth certificate is automatic evidence as a public document under the conjoint effect of Sections 35 and 77 of the Evidence Act. Further, the entry was made by the concerned official in the discharge of his official duties, it is clearly admissible under Section 35 of the Evidence Act and that it is not necessary for the party relying on it to examine its author. The net result is, learned 1st appellate court has fallen in error in not accepting entry in the birth certificate produced on record by the appellant at Article-A. On accepting the birth certificate produced by the appellant, it is unambiguous that the suit filed on 9-7-1986 was within the period of limitation. 12. Learned Trial Court found on the basis of oral evidence that partition in the family was not nominal and it was very much acted upon. The partition deed was duly registered. 12. Learned Trial Court found on the basis of oral evidence that partition in the family was not nominal and it was very much acted upon. The partition deed was duly registered. It is also established on record as is rightly found by the Trial Court that suit property was purchased from the income derived by defendant No.2 from the property which fell to the share of plaintiff. The property was obviously sold without obtaining permission as provided under Section 8 of the Hindu Minority and Guardianship Act, 1956. Alienation was neither for legal necessity nor for the benefit of appellant. 13. Mr. Madkholkar, learned counsel for respondent No.1 relied upon Dharmarajan & Ors. Vs. Villiammal & Ors, (supra) and contended that scope of interference under Section 100, CPC is drastically curtailed and narrowed down. He submits that since there is no substantial question of law, the appeal deserves to be dismissed. 14. In view of what is discussed here in above, I find that there are substantial questions of law involved in the present appeal. The judgment of the 1st appellate court is erroneous and needs interference. It is no doubt true that right of appeal under Section 100, CPC is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force. The second appeal cannot be decided merely on equitable grounds. But it is the duty of this Court to set aside perverse findings mainly regarding proof of the date of birth of the plaintiff as recorded by the 1st appellate Court. Suit was well within limitation and deserved to be decreed on above grounds. 15. In the result, second appeal is allowed. Judgment and order dated 23-10-1991 passed by the 1st appellate court is quashed and set aside and the judgment and decree dated 306-1988 passed by the Civil Judge, Junior Division, Murtizapur in Regular Civil Suit No.90 of 1986 stands restored. Parties to bear their own costs. 16. After the judgment was pronounced, Mr. R.C. Madkholkar, learned counsel for respondent No.1 prays for staying effect and operation of this judgment and order for some period since he is intending to challenge the same before the Apex Court. Learned Counsel for appellant is absent. Effect and operation of the judgment and order is stayed for eight weeks from today. Appeal allowed.