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2011 DIGILAW 29 (CHH)

Radheshyam @ Ulla v. Bangu

2011-01-28

PRASHANT KUMAR MISHRA

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JUDGMENT Prashant Kumar Mishra, J. 1. This second appeal under Section 100 of Code of Civil Procedure has been preferred by the Defendant challenging the judgment and decree passed by the First Appellate Court, decreeing the Plaintiffs' suit for declaration and permanent injunction while setting aside the Trial Court's judgment whereby Plaintiffs' suit was dismissed. 2. Plaintiffs case, as reflected in the plaint, is that one Bhagirathi (died in 1946) was their grandfather who owned and possessed the suit land described in Schedule-A with the plaint. Their father Daya (died in 1973) was the only son of late Bhagirathi. On 1/08/2001 the Plaintiff became aware that one Darbari S/o Matro Gadheri, the lather of Defendant No. 1 Radheshyam has surreptitiously got recorded his name in the revenue records pertaining to lands covered in Schedule-B which is the suit land. Plaintiffs applied for certified copies of the record of rights of the year 1944-45 and for the first time they became aware on 20/08/2001, on receipt of the said record of right that name of Defendant's father Darbari has been jointly recorded with the name of Plaintiffs' father Daya in the revenue records and the said entry of the name of Defendant's father is illegal and without any title. Plaintiffs name were recorded in the revenue records after death of their father Daya in 1973 and at that time the name of Defendant's father was not recorded in the revenue records as he had absolutely no right, title or interest in the suit land. 3. According to the Plaintiffs their grandfather Bhagirathi had only one son namely Daya and the Defendant Radheshyam or his father Darbari do not belong to their family. They are in possession of the land, however since after coming to know that Defendant is trying to alienate the suit land, the present suit was filed. 4. Case of the Defendant/Appellant is that Bhagirathi had two sons namely Daya and Darbari and as such he being the only son of Darbari, is entitled to succeed to the property belonging to the family. It was further stated in the written statement that name of Daya and Darbari was jointly recorded from 1954 till 1973 and in 1974 Plaintiffs' name were recorded after death of their father Daya. It was further stated in the written statement that name of Daya and Darbari was jointly recorded from 1954 till 1973 and in 1974 Plaintiffs' name were recorded after death of their father Daya. They further stated that during his lifetime Daya never objected to recording of the name of Darbari and infact Plaintiffs also did not raise any objection when their name was recorded along with the name of Darbari in the revenue records and again no such objection was raised in 1988 and 1989 when Tahsildar Surajpur affected a partition between the Plaintiffs and Darbari. It was specifically stated that late Bhagirathi, the owner of the land, was also known as Bhagirathi alias Matro, thus Bhagirathi and Matro are the name of one and the same person and that there is no other person known as Matro in Village Kusmusi and thus name of Darbari was recorded in the revenue records as he was S/o Bhagirathi alias Matro. It was further slated that burden to prove that Bhagirathi and Matro were two different persons, lies on the Plaintiffs. 5. The Defendants also raised objection that the suit is barred by limitation and no cause of action has arisen in favour of Plaintiff for filing the present suit. 6. Both the parties have led oral evidence and produced documents in support of their respective cases. The Trial Court dismissed the suit after recording a finding that Bhagirathi and Matro was the name of one person and thus Darbari being S/o Bhagirathi alias Matro, the Defendant No. 1 Radheshyam is also entitled to get recorded his name in the revenue records and thus Plaintiffs' suit for declaration and permanent injunction was dismissed. It was also held that the suit is barred by limitation. 7. The First Appellate Court allowed the appeal preferred by the Plaintiffs and while setting aside the judgment and decree passed by the Trial Court, it has decreed the suit. The First Appellate Court found that the Plaintiffs' suit is within limitation and from the evidence on record it would appear that Bhagirathi and Matro were two different persons. 8. While admitting the appeal, this Court has framed the following substantial questions of law: (1) Whether the suit filed by the Plaintiffs was barred by limitation? The First Appellate Court found that the Plaintiffs' suit is within limitation and from the evidence on record it would appear that Bhagirathi and Matro were two different persons. 8. While admitting the appeal, this Court has framed the following substantial questions of law: (1) Whether the suit filed by the Plaintiffs was barred by limitation? (2) Whether in the state of evidence on record the finding recorded by the first appellate Court that Darbari was not the son of Bhagirathi is perverse? 9. The first substantial question of law is as to whether the suit is barred by limitation. According to the Appellant/Defendant the suit is apparently barred by limitation because as per Plaintiffs own case the Plaintiff became aware about the recording of the name of Darbari in the year 1973 and thus the present suit having been preferred on 27/08/2001 is barred by limitation. On the other habd, the Respondents/Plaintiffs have pleaded that cause of action accrued on 20th August 2001 when they received certified copies of the revenue records and became aware for the first time that name of Darbari is also recorded in the revenue records and when Darbari started proclaiming that he wants to alienate the suit land. 10. It is the case of the Plaintiff that when in the year 1973 they became aware of the entries of the name of Darbari in the revenue records, complaints were made to the revenue authorities and the records were corrected. Ex. P-7 is the record of rights of the year 1975-76, wherein name of Plaintiffs are recorded as bhoomiswami and name of Darbari is not mentioned therein. Ex. P-10 is the revenue record of the year 1988-89 pertains to seven Khasra Nos. admeasuring 1.728 hectares out of total area 6.751 hectares mentioned in Ex. P-7. Thus the case of the Plaintiffs that the Defendant/Appellant got recorded his name surreptitiously and when the Plaintiffs became aware of the entries of his name in the revenue records, they obtained certified copies and after receiving the same on 20th August, 2001, the suit was filed on 27/08/2001 appears to be well founded. Thus, it is found that the cause of action for filing the present suit had accrued in August 2001 and the suit filed by the Plaintiff is within limitation. 11. In the matter of Daya Singh and Anr. v. Gurdev Singh (Dead) by LRS. and Ors. Thus, it is found that the cause of action for filing the present suit had accrued in August 2001 and the suit filed by the Plaintiff is within limitation. 11. In the matter of Daya Singh and Anr. v. Gurdev Singh (Dead) by LRS. and Ors. (2010) 2 SCC 194, the Hon'ble Supreme Court has held thus in paragraph 15, 15. A similar view was reiterated in C. Mohammed Yunus v. Syed Unnissa AIR 1961 SC 808 in which this Court observed: (AIR) p. 810, para 7) 7. The period of six years prescribed by Article 120 has to be computed from the date when the right to sue accrues and there could be no right to sue until there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right. In C. Mohammad Yunus (supra), this Court held that the cause of action for the purposes of Article 58 of the Act accrues only when the right asserted in the suit is infringed or there is at least a clear and unequivocal threat to infringe that right. Therefore, the mere existence of an adverse entry in the revenue records cannot give rise to cause of action. 12. Thus, on the basis of pleadings and evidence it is established that after 1973 the revenue entries were corrected and name of Darbari was deleted, however when his name was again recorded surreptitiously, this came in to the knowledge of the Plaintiffs in August, 2001 is fully established and the Plaintiffs' suit filed in August 2001 is within limitation. 13. The second question of law is about Darbari also being known as Matro. Ex. P-4 is the electoral roll of the year 1975 of Surajpur Assembly Constituency. In this electoral roll name of father of Darbari is mentioned as Matro whereas in Ex.P-5, electoral roll of the same year name of father of Daya is mentioned as Bhagirathi. Ex P-6 is another document of the year 1957-1965 in which Darbari is referred as S/o Matro. Ex. P-8 is the certified copy of Sarguja State Settlement Khatiyan mentioning name of Raiyyat as Bhagirathi Gadheri S/o Girdhari and it is not referred therein as Bhagirathi alias Matro. Ex. P-9 is the record of right of 1954-55, wherein Darbari is mentioned as S/o Bhagirathi. Ex. P-8 is the certified copy of Sarguja State Settlement Khatiyan mentioning name of Raiyyat as Bhagirathi Gadheri S/o Girdhari and it is not referred therein as Bhagirathi alias Matro. Ex. P-9 is the record of right of 1954-55, wherein Darbari is mentioned as S/o Bhagirathi. It is this document which is relied by Defendant along with the sale deed Ex. D-5/Article-A in which Darbari along with Dayaram both mentioned as S/o Bhagirathi have sold some land to another person. This sale deed is of 9th March, 1971. 14. According to the Appellant the entries in the electoral roll have not been proved in accordance with law. Reference has been made to the case of Supreme Court in Madan Mohan Singh and Ors. v. Rajni Kant and Anr. (2010) 9 SCC 209. Appellant has also relied on judgment of Supreme Court in Dubaria v. Har Prasad and Anr. (2009) 9 SCC 346, to argue that while reversing the Trial Courts decree. First Appellate Court is required to appreciate the entire evidence on record. On the other hand, learned Counsel for the Respondent has argued that the copies of documents namely electoral roll maintained by statutory authorities need not be proved by examining the officer making the entries. He has relied on Kirtan Sahu, after him Uma Sahuani and Ors. v. Thakur Sahu and Ors. AIR 1972 Ori 158, (Full Bench) (paragraph 7) and Smt. Aina Devi v. Bachan Singh and Anr. AIR 1980 All 174. 15. It is the Defendant's own case in the written statement that Bhagirathi had only two sons, however Defendant Radheshyam himself appearing as DW-5 has admitted that one Dheeru was his real uncle meaning thereby and as admitted further by this witness, Bhagirathi had three sons namely Daya, Darbari and Dheeru. This admission makes his entire defence shaky, unworthy of any credit and doubtful. More so PW-2 Ramroop aged 75 years has clearly stated that Bhagirathi and Matro were two different persons. This witness has clearly stated that he knows and had seen Bhagirathi and that he was not known as Matro. PW-3, Bhudduram aged 65 years has also stated that Bhagirathi and Matro were two different persons. There is yet another witness namely PW-4, Chhota supporting the Plaintiffs' case that Bhagirathi had only one son namely Daya and Matro was a resident of Village Daloni, Singrouli. PW-3, Bhudduram aged 65 years has also stated that Bhagirathi and Matro were two different persons. There is yet another witness namely PW-4, Chhota supporting the Plaintiffs' case that Bhagirathi had only one son namely Daya and Matro was a resident of Village Daloni, Singrouli. He has categorically denied the suggestion that Matro and Bhagirathi were one and the same person. 16. Thus, on the basis of statement of witnesses and copies of the electoral roll Ex. P-4 and P-5 and the revenue entries Ex.P-6 of the year 1957 to 1965 mentioning Darbari S/o Matro, the finding recorded by First Appellate Court to the effect that Darbari was not the son of Bhagirathi is perfectly borne out from the evidence available on record and is not perverse. With regard to the nature of evidence in form of electoral roll, the High Court of Orissa in the matter of Kirtan Sahu, after him Uma Sahuani and Ors. v. Thakur Sahu and Ors. AIR 1972 Ori 158 (supra) has held thus in paragraph 7: 7. The electoral roll being a public document is admissible in evidence and it is not necessary to prove the source of information on the basis whereof the facts stated in the roll were recorded, nor is it necessary that the person who prepared the electoral roll has to be examined in the court to prove the roll. As a public document it is admissible under the provisions of the Evidence Act. As was indicated by the Judicial Committee in (1879) 7 Ind App 63 (PC) (Rani Lekraj Kuar v. Babu Mahpal Singh). The entry having stated that relevant fact, the entry itself becomes by force of the section a relevant fact; that is to say, it may be given in evidence as a relevant fact, because, being made by a public officer, it contains an entry of a fact which is relevant. We would accordingly answer the question referred to us thus: The electoral roll prepared under the Representation of the People Act is admissible in evidence without the author thereof and the person supplying the information being examined in the case. It would, therefore, follow that the view expressed by the Division Bench in (1970) 36 Cut LT 1211 and the three other cases already referred to by a single Judge in this Court with reference to the admissibility of the electoral roll was not correct. It would, therefore, follow that the view expressed by the Division Bench in (1970) 36 Cut LT 1211 and the three other cases already referred to by a single Judge in this Court with reference to the admissibility of the electoral roll was not correct. 17. In view of the above, it is held that the electoral roll Ex. P-4 and P-5 are admissible in evidence. 18. In view of the above both substantial questions of law are answered against the Defendant/Appellant and consequently the instant second appeal is dismissed. 19. There shall be no order as to costs. 20. A decree be drawn up accordingly.