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2012 DIGILAW 161 (PAT)

Mahanth Ramasis Das v. Noor Md. Mian

2012-01-25

V.NATH

body2012
Judgment Per: Hon'ble Mr. Justice Vijayendra Nath Heard the learned counsel appearing on behalf of the appellants. 2. No one has appeared on behalf of the respondents on 4.11.11 when this appeal was called out for hearing and the learned counsel for the appellants had been heard in part. On 11.11.11 when the hearing of this appeal resumed, again no one had appeared on behalf of the respondents. 3. This appeal has been filed against the judgment and decree passed in Title Appeal No. 30/83/13/86 on 17.7.1986 by Additional District Judge-III, Bettiah whereby the judgment and decree dated 30.7.1983 passed in Title Suit No. 21/80 by 1st Additional Sub-Judge, Bettiah has been reversed. This appeal was earlier heard and was allowed by judgment and decree dated 2.8.2001 by this Court but the same had been set aside by the Hon'ble Supreme Court by its order dated 28th August, 2009 passed in Civil Appeal No. 2446/02 and the matter has been remitted back to this Court to consider the appeal afresh after hearing the parties. 4. The plaintiff has filed the suit for declaration that the sale deed dated 11.1.79 alleged to have been executed by his father Chhatu Mahto in favour of defendant no. 2 was forged, fabricated and void document and not binding upon the plaintiff and was not capable of conferring the tile over the suit property upon the defendant. The plaintiff's case in short, is that his father Chhattu Mahto died on 13.12.78 but the defendant no. 1 obtained a sale deed in favour of defendant no. 2 (wife of defendant no. 1) on 11.1.79 for an area of 1 Bigha, 2 Kathas, 2 Dhurs by setting up an imposter as the father of the plaintiff. On this basis the plaintiff challenged the validity of the sale deed asserting that the same was forged and fabricated document as his father was already dead on the date of the execution of the sale deed in question. The defendants denied the assertion of the plaintiff and have specifically pleaded that the plaintiff's father died on 17.12.79 and not on 13.12.78 as claimed by the plaintiff. 5. The defendants denied the assertion of the plaintiff and have specifically pleaded that the plaintiff's father died on 17.12.79 and not on 13.12.78 as claimed by the plaintiff. 5. The core issue, therefore, was the date of death of plaintiff's father Chhatu Mahto and a specific issue was framed in this regard by the trial court with other issues including the title of the plaintiff or want of title in the defendant for the suit land. After considering the evidence, pleadings and submissions of the parties, the trial court held that Chhatu Mahto died on 13.12.78 and also held that the said deed in question (Ext.-A) had been executed after the death of Chhatu Mahto and therefore the same is forged and fabricated document. Accordingly, the trial court decreed the suit. 6. In appeal, the appellate court framed points for consideration which included the issues relating to the date of death of Chhatu Mahto on 13.12.78 or 17.12.79 and the validity and genuineness of the sale deed dated 11.1.79. After reappraising the evidence on record, the appellate court disbelieved the evidence led by the plaintiff for establishing the date of death of Chhatu Mahto to be on 13.12.78 and also disbelieved the evidence produced by the defendants for establishing the date of death of Chhatu Mahto to be on 17.12.79. Thereafter the appellate court analysed the evidence with regard to the validity and genuineness of the sale deed in question and concluded that the sale deed Ext.-A was validly executed by Chhatu Matho and there was no fraud and forgery committed by the defendants in that regard with further finding that Chhatu Mahto died after the execution of the sale deed. Accordingly, the appeal was allowed. 7. This second appeal has been admitted for hearing by order dated 16.11.87 with the following substantial questions of law:- (i) Whether in view of a doubt in coming to a definite finding about the date of death of Chhatu Mahto and whether the sale deed was executed after his death, inasmuch as, the plaintiff's claim is that he died on 18.12.1978 and that of the defendants that he died on 17.12.79 after the execution of the sale deed, the lower appellate court could reverse the findings of the trial court? 8. Mr. 8. Mr. Narmdeshwar Jha, the learned counsel appearing on behalf of the appellants has submitted that the death certificate (Ext.-1), filed on behalf of the plaintiff to establish the date of death of his father Chhatu Mahto to be on 13.12.78, should have been relied upon by the appellate court below as it is a public document. It has been urged that Ext.-1 (death certificate) is corroborated by the documentary evidence which are Ext.-E which is the entry in the Register and Ext.-D which is the counterfoil of the death certificate. It has been contended that D.W. 6, who is a Panchayat Sewak and authorized to maintain the Register regarding birth and death, has accepted in his deposition the existence of Ext.-E & Ext.-D and has also disclosed• the facts which led to the alleged cancellation of the entry and its substitution by another date and the issuing of another death certificate to the defendant on the basis of subsequent entry (Ext.-E/1). It has also been argued by the learned counsel that the trial court has considered in detail regarding the validity of the Ext.-1 and Ext.-E and relied upon the same and but the appellate court has wrongly discarded the Ext.-1 only on the ground of absence of seal of Gram Panchayat upon the same. The further submission on behalf of the appellant is that once the appellate court failed to decide the crucial issue regarding the date of death of Chhatu Mahto, it wrongly, thereafter; held that Chhatu Mahto died after the execution of the sale deed and found the sale deed (Ext.-A) to be genuine and valid document. Referring to the substantial question of law as framed in this appeal, the learned counsel has submitted that the reasonings assigned by the trial court are sound and logical and based upon legal principles which should have been affirmed by the appellate court instead of reversing the same on non-existent and flimsy grounds and leaving the matter in lurch. 9. Referring to the substantial question of law as framed in this appeal, the learned counsel has submitted that the reasonings assigned by the trial court are sound and logical and based upon legal principles which should have been affirmed by the appellate court instead of reversing the same on non-existent and flimsy grounds and leaving the matter in lurch. 9. While admitting this appeal for hearing the liberty had been granted to the appellants to raise any other substantial questions of law available to them and on this basis the learned counsel has prayed that another substantial questions of law should also be framed relating to the perversity of the finding of the appellate court in discarding the documentary evidence of the plaintiff to be insufficient to establish the date of death of Chhatu Mahto. After hearing the submissions on behalf of the appellants, it appears just and proper to allow the prayer for raising the another substantial question of law and therefore the following additional substantial question of law is being framed also for consideration in this appeal:- (i) Whether the reasonings assigned by the appellate court in discarding the evidence of the plaintiff with regard to the date of death of Chhatu Mahto are perverse and unsustainable in law? 10. The crucial issue in the suit is regarding the date of death of Chhatu Mahto who as per the case of the plaintiff died on 13.12.1978, much prior to the execution of the sale deed in favour of the defendant no. 2, but according to the defendants he died on 17.12.79 after executing the sale deed in question in their favour. Besides oral evidence on this issue, the plaintiff has adduced documentary evidence including Ext.-1 which is a death certificate issued under the provisions of Registration of Births and Deaths Act, 1969. The defendants have also adduced as evidence the counterfoils of death certificate, as Ext.-D and Ext.-D/1, entries in the Register as Ext.-E & Ext.E/1 and has got the same proved by D.W. 6 who is a Panchayat Sewak. The defendants have also adduced as evidence the counterfoils of death certificate, as Ext.-D and Ext.-D/1, entries in the Register as Ext.-E & Ext.E/1 and has got the same proved by D.W. 6 who is a Panchayat Sewak. This witness (D.W. 6) has deposed that earlier he had made the entry marked as Ext.-E regarding the date of death of Chhatu Mahto to be on 31.12.78 and has further deposed that this entry Ext.-E was cancelled by him on the direction of Panchayat and thereafter the subsequent entry marked as Ext.-E/1 has been made by him on the direction of the Panchayat. This witness has admitted that he made the entry Ext. E on the basis of the information given to him by Chaukidar on 31.12.78 itself. He has further accepted that the death certificate Ext.-1 was given to the plaintiff by him in his own pen. This witness has further accepted that as a Panchayat Sewak he had the authority to make entry in the Register of the Panchayat. In view of the admission by the D.W. 6 regarding Ext.-E and Ext.-1, there cannot be any doubt that the death certificate Ext.-1 is not a forged and fabricated document but has been validly issued by the authority having jurisdiction to issue the same. Now the validity of the cancellation of that entry (Ext.-E) and subsequent entry (Ext.-E/1) done by D.W. 6 on the direction of the Panchayat is to be examined. 11. Under Section 15 of the Registration of Births and Deaths Act, 1969 (hereinafter referred to as Act) the Registrar has been given the jurisdiction to make correction or cancellation of entry in the Register of birth and death when it is proved to his satisfaction that the entry of birth and death in any Register kept by him under the Act is erroneous in form or substance or has been fraudulent or improperly made. In the present case the D.W. 6, who as per his admission, is the Registrar under the Act, authorized to make entry with regard to birth and death in the Register kept under the Act, and he, as per the above provision, has also the authority to make correction or cancellation of entry in the said register but as per his own admission he has cancelled the entry (Ext.-E) not on the basis of his own satisfaction as required under Section 15 but on the direction of the Panchayat. The defendants have not produced the proceedings of the Panchayat whereby the said direction to cancel the entry had been issued. It also could not be proved by defendants that the plaintiff had been served with the notice and granted an opportunity of hearing before the cancellation of the entry Ext.-E. The entries in the Register under the Act is a public document and presumption of correctness attaches to it (see 1974 BLJR page XXVI). The Chaukidar whose information had been accepted as the basis of the entry (Ext.E), has also been examined as D.W. 4 and in his deposition he has not accepted that he has given a wrong information regarding the date of death of Chhatu Mahto. Thus on the basis of aforesaid facts, it is established that Ext.-1, (death certificate) issued on the basis of the entry (Ext.-E) corroborated by its counterfoil (Ext.-D) is a genuine document and its cancellation and subsequent entry made by Ext.-E/1 made thereafter were illegal and invalid. 12. The appellate court below has discarded the death certificate (Ext.-1) only on the ground that it did not bear any seal but has ignored the admission of D.W. 6 as well as the entries made in the Register with regard to the date of death of Chhatu Mahto and has also not considered the aspect that the cancellation of the said entry by the Panchayat Sewak (D.W.-6) was illegal and invalid. The trial court has elaborately considered this aspect of the matter and has placed its reliance upon the death certificate (Ext.-1) for coming to the finding that Chhatu Mahto died on 13.12.78. The appellate court has held that the evidence produced by the plaintiff as well as the defendants are not reliable for reaching to a finding on the date of death of Chhatu Mahto. The appellate court has held that the evidence produced by the plaintiff as well as the defendants are not reliable for reaching to a finding on the date of death of Chhatu Mahto. As such there is a concurrent finding by both the courts that the documents produced by the defendants and marked (Exts.-C & D/1 and E/1) were not reliable evidence. As held earlier the appellate court has committed error in discarding the evidence of the plaintiff and therefore the only conclusion emerges is that the finding of the trial court that Chhatu Mahto died on 13.12.78 is correct and valid. Besides the documentary evidence aforementioned, the trial court has also relied upon oral evidence for coming to the finding that the date of death of Chhatu Mahto was 13.12.78 but the appellate court has again discarded the oral evidence of the plaintiff in view of his finding with regard to Ext.-1. Moreover, the later finding by the appellate court that Chhatu Mahto certainly died after the execution of the sale deed in question is clearly an assumptive finding. The appellate court further while discussing the genuineness of the sale deed in question has mainly placed reliance upon the testimony of the scribe alone and has not adverted to the aspect that no steps had been taken by the defendants to get the signature on the disputed sale deed examined by expert, particularly when the defendants did not produce any other admitted document containing the signature of Chhatu Mahto, after challenging the mortgage deed produced by the plaintiff executed by Chhatu Mahto, for the purpose of comparison of the L.T.I. or signature of Chhatu Mahto. 13. In view of the discussions made above, it is held that the appellate court below has wrongly discarded the evidence of the plaintiff for establishing the date of death of Chhatu Matho to be on 13.12.78 and the findings of the appellate court in this regard are not sustainable. It is further held that the appellate court below has wrongly reversed the finding of the trial court without coming to a different finding regarding the date of death of Chhatu Mahto which has been found by the trial court to be on 13.12.1978. As such the substantial questions of law raised in this appeal are answered in favour of the plaintiff-appellant. As such the substantial questions of law raised in this appeal are answered in favour of the plaintiff-appellant. The impugned judgment and decree of the appellate court is accordingly, set aside and the Judgment and decree of the trial court is upheld and the plaintiff is held to be entitled to the decree as prayed. However, in the facts and circumstances, there will be no order as to costs.