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2017 DIGILAW 1885 (ALL)

Sudarshan v. Board of Revenue, U. P.

2017-08-16

RAM SURAT RAM (MAURYA)

body2017
JUDGMENT : Ram Surat Ram (Maurya), J. Heard Sri Arun Kumar, for the petitioners, Sri S.K. Tyagi, for the contesting respondents. 2. The writ petition has been filed against the orders of Additional Commissioner dated 15.06.1972, allowing the appeal, setting aside the judgment of trial court dated 29.03.1971 and decreeing the suit of respondent-3 and Board of Revenue, U.P. dated 18.07.1984 dismissing second appeal of the petitioners, arsing out of suit under Section 59/61 of U.P. Tenancy Act, 1939 (hereinafter referred to as the Act). 3. Smt. Marchhia (respondent-3) filed two suits on 12.04.1967 (registered as Suit Nos. 37 and 38 of 1970) under Section 59/61 of the Act, for declaring her as the daughter and heir of Raja Rai, having ? share in the land recorded khatas 8 and 13 respectively of village Janari, pargana and district Ballia. She took plea that Raja Rai was co-tenant having ? share in aforesaid khatas, which was their fixed-rate-tenancy. Raja Rai died on 04.08.1948, leaving behind him, Smt. Marchhia, his daughter, as his only heir and legal representative as such she had become co-tenant of ? share in disputed land. In these suits, defendants-1st set were original co-tenants of Raja Rai, defendants-2nd sets were vendees and defendants-3rd set were mortgagee of defendants-1st set. Defendants-4th set were zamindars/land holders. 4. Pariksha Rai and others (defendants-1st set) (now represented by the petitioners) filed their written statement and contested the suit. They admitted that Raja Rai was co-tenant of ? share in aforesaid khatas and died on 04.08.1948. But they took plea that Raja Rai was unmarried and died issueless. After his death his share in the disputed land was devolved upon remaining cotenants by way of survivorship. Smt. Marchhia was daughter of Ram Bali's mother's sister and had malafide filed the suits to grab the share of Raja Rai, in collusion of Ram Bali. After death of Raja Rai, name of Smt. Marchhia was not recorded over disputed land in revenue records and the suits were barred under Section 34 of U.P. Land Revenue Act, 1901. Smt. Marchhia was not in possession of disputed land as such the suits were barred under section 34 of Specific Relief Act, 1963. 5. The suits were consolidated and tried by Sub-Divisional Officer II, Rasra, Ballia. Both the parties adduced their documentary and oral evidence. Smt. Marchhia was not in possession of disputed land as such the suits were barred under section 34 of Specific Relief Act, 1963. 5. The suits were consolidated and tried by Sub-Divisional Officer II, Rasra, Ballia. Both the parties adduced their documentary and oral evidence. Sub-Divisional Officer, by his judgment dated 29.03.1971, held that it was admitted that Raja Rai had ?th share in both the disputed khatas and died on 04.08.1948. After death of Raja Rai, the name of Smt. Marchhia was not mutated as his heir nor she had ever paid any rent of the disputed land. In khasra also her possession was not recorded. She stated that she was doing her cultivation through one Mahendra Singh but he was not examined as a witness. In her oral statement, Smt. Marchhia could not state name of any neighbourer of Raja Rai although she claimed to reside there. According to her, Rama Shankar and Uma Shankar of village Banrahi were his maternal uncle, who were best witness to prove relationship but they were not examined although they were alive. According to her, she was married at village Chit Baragaon in the family of Nagina Rai but no one of the family of Nagina Rai was examined. Raja Rai executed number of mortgage deeds but it were redeemed by defendants-1st set who had filed it from their possession, from which also it was proved that share of Raja Rai was devolved upon remaining co-tenants, who got the land redeemed from mortgage, after death of Raja Rai. Extract of Birth Register, showing that one daughter was born to Raja Rai on 14.08.1920 was filed but Birth Register is not a conclusive proof until it was corroborated with any other evidence. Birth Register was of village Janari and not of village Bhora Chhapra, where Raja Rai was residing. Mortgage deed dated 10.01.1933, executed by Raja Rai, containing recital that he had one daughter is a money bond and cannot be read as an evidence of the parentage of Smt. Marchhia. The suits were barred under Section 34 of U.P. Land Revenue Act, 1901. The plaintiff could not prove her possession over disputed land. On these findings, he dismissed the suits. 6. Smt. Marchhia filed two appeals (registered as Appeal Nos. 3 and 4 of 1971), from the aforesaid judgment and decrees. The suits were barred under Section 34 of U.P. Land Revenue Act, 1901. The plaintiff could not prove her possession over disputed land. On these findings, he dismissed the suits. 6. Smt. Marchhia filed two appeals (registered as Appeal Nos. 3 and 4 of 1971), from the aforesaid judgment and decrees. The appeals were consolidated and heard by Additional Commissioner, who by his judgment dated 15.06.1972, held that the plaintiff had filed an extract of Birth Register, showing that one daughter was born to Raja Rai on 14.08.1920, which was fully corroborated with extract of Voter List of the year 1966, in which age of Smt. Marchhia was recorded as 46 years. Mortgage deed dated 10.01.1933, executed by Raja Rai contained a recital that he had one daughter Marchhia and for her second marriage, he was in need of money, for which he had mortgaged his land. For necessity of second marriage of his daughter Marchhia, Raja Rai executed a sale deed in 1934 of his land. Subsequently Vishwa Nath Singh filed O.S. No. 420 of 1934 for cancellation of this sale deed, in which he had taken plea that the sale deed was procured by committing fraud as Raja Rai had no necessity to sell his holdings. In this suit a written statement of Raja Rai was also filed stating therein that he was unmarried and had no daughter. But Munsif in his judgment dated 29.11.1935, passed in O.S. No. 420 of 1934 had not accepted his plea and held that Raja Rai had one daughter Marchhia. It is only to grab the money of sale consideration, false plea was raised by Raja Rai that he was unmarried. This finding has been upheld by Civil Judge in his judgment dated 21.11.1936 in appeal filed from aforesaid decree. In this suit, defendants-1st set of this suits were parties as such this finding will operate as res-judicata against them. Defendants-3 and 4 were examined as witnesses in these suits but they could not state that who was father of Smt. Marchhia. DW-3 stated that Vishwanath of village Sukhpura had informed him that Smt. Marchia was daughter of Raghunath but Vishwanath was not examined. Only for the reasons that mortgages executed by Raja Rai were redeemed by defendants-1st set, it cannot be held that Smt. Marchia was not daughter of Raja Rai. DW-3 stated that Vishwanath of village Sukhpura had informed him that Smt. Marchia was daughter of Raghunath but Vishwanath was not examined. Only for the reasons that mortgages executed by Raja Rai were redeemed by defendants-1st set, it cannot be held that Smt. Marchia was not daughter of Raja Rai. Smt. Marchhia had become co-tenants in disputed land after death of Raja Rai. Possession of one co-sharer can be treated as possession of all as such actual physical possession of Smt. Marchhia was not necessary. On these findings, the appeals were allowed, the decrees of trial court were set aside and the suits were decreed. Vishwanath Singh and others (now represented by the petitioners) filed two second appeal (registered as Second Appeal Nos. 18 and 19 of 1971-72), from the aforesaid decrees. Board of Revenue, U.P. dismissed the second appeals by judgment dated 18.07.1984, holding that no substantial question of law was involved in these appeals. Hence this writ petition has been filed. 7. The counsel for the petitioners submitted that entries in Birth Register or Voter List cannot be relied upon unless the person on whose information, the entry was made is examined in Court. The court below have illegally placed reliance on extracts of Birth Register and Voter List. Raja Rai was resident of village Bhora Chhapra while Birth Register was of village Janari and was not related to Raja Rai, who was unmarried. Raja Rai, in his written statement filed in O.S. No. 420 of 1934 had stated that he was unmarried. It was an admission of Raja Rai in judicial proceeding and best evidence which could be relied upon against Smt. Marchhia, who is claiming herself as the daughter of Raja Rai. Judgment in O.S. No. 420 of 1934 was not inter parties and not admissible in evidence. The court below has illegally held that it would operate as res-judicata against the petitioners. Findings of trial court is based upon appreciation of oral and documentary evidence, it has been illegally set aside by appellate court. No one was examined to prove that mortgage deed dated 10.01.1933 was executed by Raja Rai. This evidence was not admissible. The court below has illegally held that it would operate as res-judicata against the petitioners. Findings of trial court is based upon appreciation of oral and documentary evidence, it has been illegally set aside by appellate court. No one was examined to prove that mortgage deed dated 10.01.1933 was executed by Raja Rai. This evidence was not admissible. This Court in Ghurahu v. Sheo Ratan, AIR 1981 All 3 and Supreme Court in Union of India v. Ibrahim Uddin, (2012) 8 SCC 148 , held that presumption under Section 90 of the Evidence Act, 1872 in respect of 30 years old document coming from proper custody relates to the signature, execution and attestation of a document i.e. to its genuineness but it does not give rise to presumption of correctness of every statement contained in it. That the contents of the document are true or it had been acted upon, have to be proved like any other fact. Supreme Court in Birad Mal Singhvi v. Anand Purohit, AIR 1988 SC 1796 , Ravinder Singh Gorkhi v. State of U.P., AIR 2006 SC 2157 , Babloo Pasi v. State of Jharkhand, (2008) 13 SCC 133 and Madan Mohan Singh v. Rajni Kant, AIR 2010 SC 2933 , held that public documents, though admissible in evidence, have no probative value unless their contents are proved by corroborative evidence. Supreme Court in Dolgovinda Paricha v. Nimai Charan Mishra, AIR 1959 SC 914 and State of Bihar v. Radha Krishna Singh, AIR 1983 SC 684 , held that genealogy of the family is not proved only on the basis of statement of interested witness. Orders of Additional Commissioner and Board of Revenue, U.P. are illegal and liable to be set aside. 8. I have considered the arguments of the counsel for the parties and examined the record. Provisions of Evidence Act, 1872, which are relevant for the purposes of controversy involved in this writ petition are quoted below:- Section 32. Orders of Additional Commissioner and Board of Revenue, U.P. are illegal and liable to be set aside. 8. I have considered the arguments of the counsel for the parties and examined the record. Provisions of Evidence Act, 1872, which are relevant for the purposes of controversy involved in this writ petition are quoted below:- Section 32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.-Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases:- ........ (5) Or relates to existence of relationship.-When the statement relates to the existence of any relationship by blood, marriage or adoption between persons as to whose relationship by blood, marriage or adoption the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised. Section 35.- Relevancy of entry in public record or an electronic record, made in performance of duty.-An entry in any public or other official book, register or record or an electronic record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record or an electronic record is kept, is itself a relevant fact. Section 50. Opinion on relationship, when relevant.-When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact: Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Divorce Act (4 of 1869), or in prosecutions under Sections 494, 495, 497 or 498 of the Indian Penal Code (45 of 1860). Illustrations (b) The question is, whether A was the legitimate son of B. The fact that A was always treated as such by members of the family, is relevant. Section 90. Presumption as to documents thirty years old.-Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested. Explanation.- Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable. 9. Supreme Court in State of Bihar v. Radha Krishna Singh, AIR 1983 SC 684 , held that before, however, opening this chapter it may be necessary to restate the norms and the principles governing the proof of a pedigree by oral evidence in the light of which the said evidence would have to be examined by us. It is true that in considering the oral evidence regarding a pedigree a purely mathematical approach cannot be made because where a long line of descent has to be proved spreading over a century, it is obvious that the witnesses who are examined to depose to the genealogy would have to depend on their special means of knowledge which may have come to them through their ancestors but, at the same time, there is a great risk and a serious danger involved in relying solely on the evidence of witnesses given from pure memory because the witnesses who are interested normally have a tendency to draw more from their imagination or turn and twist the facts which they may have heard from their ancestors in order to help the parties for whom they are deposing. The court must, therefore safeguard that the evidence of such witnesses may not be accepted as is based purely on imagination or an imaginary or illusory source of information rather than special means of knowledge as required by law. The oral testimony of the witnesses on this matter is bound to be hearsay and their evidence is admissible as an exception to the general rule where hearsay evidence is not admissible. This is culled out from the law contained in clause (5) of Section 32 of the Evidence Act which must be construed to the letter and to the spirit in which it was passed. In order to appreciate the evidence of such witnesses, the following principles should be kept in mind : "(1) The relationship or the connection however close it may be, which the witness bears to the persons whose pedigree is sought to be deposed by him. (2) The nature and character of the special means of knowledge through which the witness has come to know about the pedigree. (3) The interested nature of the witness concerned. (4) The precaution which must be taken to rule out any false statement made by the witness post litem motam or one which is derived not by means of special knowledge but purely from his imagination, and (5) The evidence of the witness must be substantially corroborated as far as time and memory admit." 10. Supreme Court in State of Bihar v. Radha Krishna Singh, AIR 1983 SC 684 , further held that Section 35 of the Evidence Act which requires the following conditions to be fulfilled before a document can be admissible - "(1) the document must be in the nature of an entry in any public or other official book, register or record, (2) it must state a fact in issue or a relevant fact, (3) the entry must be made by a public servant in the discharge of his official duties or in performance of his duties especially enjoined by the law of the country in which the relevant entry is kept.". 11. 11. Supreme Court in Birad Mal Singhvi v. Anand Purohit, AIR 1988 SC 1796 , held that to render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record; secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded. In Ravinder Singh Gorkhi v. State of U.P., AIR 2006 SC 2157 , unless specifically provided for, in terms of Section 35 of the Evidence Act, the register maintained in the ordinary course of business by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which, inter alia, such register is kept would be a relevant fact. Section 35, thus, requires the following conditions to be fulfilled before a document is held to be admissible thereunder: (i) it should be in the nature of the entry in any public or official register; (ii) it must state a fact in issue or relevant fact; (iii) entry must be made either by a public servant in the discharge of his official duty, or by any person in performance of a duty specially enjoined by the law of the country; and (iv) all persons concerned indisputably must have an access thereto. 12. Supreme Court in B.S.E. Brokers' Forum v. Securities and Exchange Board of India, (2001) 3 SCC 482 , held that this Court will always rely upon Section 114 Ill. (e) of the Evidence Act to draw a statutory presumption that the official acts are regularly performed and if satisfied that the action in question is traceable to a statutory power, the courts will uphold such State action. (e) of the Evidence Act to draw a statutory presumption that the official acts are regularly performed and if satisfied that the action in question is traceable to a statutory power, the courts will uphold such State action. In CIDCO v. Vasudha Gorakhnath Mandevlekar, (2009) 7 SCC 283 , held that the deaths and births register maintained by the statutory authorities raises a presumption of correctness. Such entries made in the statutory registers are admissible in evidence in terms of Section 35 of the Evidence Act. It would prevail over an entry made in the school register, particularly, in absence of any proof that same was recorded at the instance of the guardian of the respondent. 13. Supreme Court in N.G. Dastane (Dr) v. S. Dastane, AIR 1975 SC 1534 , held that the normal rule which governs civil proceedings is that a fact can be said to be established if it is proved by a preponderance of probabilities. This is for the reason that under the Evidence Act, 1872 Section 3, a fact is said to be proved when the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The belief regarding the existence of a fact may thus be founded on a balance of probabilities. A prudent man faced with conflicting probabilities concerning a fact-situation will act on the supposition that the fact exists, if on weighing the various probabilities he finds that the preponderance is in favour of the existence of the particular fact. As a prudent man, so the court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities, the second to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable at the second. Within the wide range of probabilities the court has often a difficult choice to make but it is this choice which ultimately determines where the preponderance of probabilities lies. The impossible is weeded out at the first stage, the improbable at the second. Within the wide range of probabilities the court has often a difficult choice to make but it is this choice which ultimately determines where the preponderance of probabilities lies. Important issues like those which affect the status of parties demand a closer scrutiny than those like the loan on a promissory note: "the nature and gravity of an issue necessarily determines the manner of attaining reasonable satisfaction of the truth of the issue" or as said by Lord Denning, "the degree of probability depends on the subject-matter. In proportion as the offence is grave, so ought the proof to be clear", Blyth v. Blyth, (1966) AllER 524. But whether the issue is one of cruelty or of a loan on a pronote, the test to apply is whether on a preponderance of probabilities the relevant fact is proved. In civil cases this, normally, is the standard of proof to apply for finding whether the burden of proof is discharged. 14. In the present case, the petitioners took plea that Raja Rai was unmarried and died issue less. In order to prove their case, the petitioners filed copy of written statement of Raja Rai and examined oral witnesses. Appellate court found that Vishwa Nath Singh filed O.S. No. 420 of 1934 for cancellation of sale deed executed by Raja Rai. In this suit a written statement of Raja Rai was filed stating therein that he was unmarried and had no daughter. Plea raised by Raja Rai in his written statement was not believed by Munsif, who in his judgment dated 29.11.1935, passed in O.S. No. 420 of 1934 held that Raja Rai had one daughter Marchhia. It is only to grab the sale consideration, false plea was raised by Raja Rai that he was unmarried. This finding has been upheld by Civil Judge in his judgment dated 21.11.1936 in appeal filed from aforesaid decree. In this suit, defendants-1st set of this suits were parties as such this finding will operate as res-judicata against them. Vishwanath Singh, who had filed O.S. No. 420 of 1934, was appellant in present second appeals before Board of Revenue, U.P. Although in the writ petition, it has been stated that this suit was not inter parties but array of parties of O.S. No. 420 of 1934 has not been filed. Vishwanath Singh, who had filed O.S. No. 420 of 1934, was appellant in present second appeals before Board of Revenue, U.P. Although in the writ petition, it has been stated that this suit was not inter parties but array of parties of O.S. No. 420 of 1934 has not been filed. Thus findings of the appellate court that the petitioners were parties in O.S. No. 420 of 1934 is not rebutted by the petitioners. Appellate court further held that defendants-3 and 4 were examined as witnesses in these suits but they could not state that who was father of Smt. Marchhia. DW-3 stated that Vishwanath of village Sukhpura had informed him that Smt. Marchhia was daughter of Raghunath but Vishwanath was not examined. Although the petitioners took plea that Smt. Marchhia was daughter of Birbal' mother's sister. The petitioners have failed to prove their case. 15. On the other hand, disputed pedigree is not an old pedigree. Only parentage of Smt. Marchhia was disputed. Statement of Smt. Marchhia is admissible in evidence under Section 50 of Evidence Act, 1872. She filed an extract of Birth Register, showing that one daughter was born to Raja Rai on 14.08.1920, which was fully corroborated with extract of Voter List of the year 1966, in which age of Smt. Marchhia was recorded as 46 years. Raja Rai was not alive as such these documents are admissible in evidence under Section 32(5) and 35 of the Evidence Act, 1872. Mortgage deed dated 10.01.1933, executed by Raja Rai contained a recital that he had one daughter Marchhia and for her second marriage, he was in need of money, for which he had mortgaged his land. For necessity of second marriage of his daughter Marchhia, Raja Rai executed a sale deed in 1934 of his land. Vishwanath Singh filed O.S. No. 420 of 1934 for cancellation of this sale deed. These documents are admissible in evidence under Section 90 of Evidence Act, 1872. Entries in public documents raise presumption of fact. The presumption was not found to be rebutted by the petitioners as such courts below have not committed any illegality to raising presumption regarding parentage of Smt. Marchhia. On preponderance and probabilities, the evidence of respondent-3 was found more convincing and relied upon by lower appellate court, which is last court of fact. Findings of fact recorded by Additional Commissioner do not suffer from any illegality. On preponderance and probabilities, the evidence of respondent-3 was found more convincing and relied upon by lower appellate court, which is last court of fact. Findings of fact recorded by Additional Commissioner do not suffer from any illegality. 16. So far as possession is concerned, Smt. Marchhia was not daughter of Raja Rai. Smt. Marchhia had become co-tenants in disputed land after death of Raja Rai. Possession of one co-sharer can be treated as possession of all as such actual physical possession of Smt. Marchhia was not necessary. 17. In view of the aforesaid discussions, the writ petition has no merit and is dismissed.