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2022 DIGILAW 1675 (ALL)

Sanjay Kumar Tiwari @ Sanjay Tiwari v. State Of U. P.

2022-10-18

MANOJ MISRA, UMESH CHANDRA SHARMA

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JUDGMENT : 1. Heard learned counsel for the petitioner and the learned Standing Counsel for the respondents 1, 2, 3 and 7. 2. The petitioner has assailed the orders dated 10.04.2019 and 26.10.2012 passed by Sub-Divisional Officer, Barhaj, Deoria in Case No. 6, under Section 13 (3) of the Registration of Births and Deaths Act, 1969. 3. Arising out of a property dispute, the petitioner and the private respondents 4 to 6 are in conflict with regard to the date of death of one Jagat Narayan son of Dhanushdhari. According to the petitioner, he died in the year 1970 whereas according to the private respondents he died on 29.08.1971. 4. As per the petitioner Jagat Narayan's year of death was earlier entered in the register as 1970. Later, an application was submitted to make corrections and to enter his date of death as 29.08.1971. On the said application, on the basis of a report submitted by ADO (Panchayat) dated 10.01.2000, by order dated 26.10.2012, the Up Zila Adhikari, Barhaj, Deoria directed that date of his death be entered as 29.08.1971. An application was filed by petitioner on 28.05.2014 for recall of the order dated 26.10.2012 on the ground that Ram Garib Tiwari (predecessor in interest of the petitioner), who was a respondent in that proceedings, had expired and there was therefore no one to challenge the claim set up by the other side, as a result, the order was ex parte. This application of the petitioner has been rejected by order impugned dated 10.04.2019. 5. While rejecting the application of the petitioner to recall the order dated 26.10.2012, the Up Zila Adhikari, Barhaj, Deoria has observed that the proceedings with regard to registration of births and deaths are administrative in nature and he holds no power to recall/review the order passed earlier therefore he has no jurisdiction to entertain such application as made by the petitioner. He also observed in the order that the proceedings which led to the order dated 26.10.2012, on the basis of report dated 10.01.2000, were pending for over a decade and were got adjourned for one reason or the other therefore, it is not a case where no opportunity of hearing was given to the petitioner side. 6. He also observed in the order that the proceedings which led to the order dated 26.10.2012, on the basis of report dated 10.01.2000, were pending for over a decade and were got adjourned for one reason or the other therefore, it is not a case where no opportunity of hearing was given to the petitioner side. 6. Learned counsel for the petitioner has invited our attention to Section 15 of the Registration of Births and Deaths Act, 1969 which provides that if it is proved to the satisfaction of the Registrar that any entry of a birth or death in any register kept by him under this Act is erroneous in form or substance, or has been fraudulently or improperly made, he may, subject to such rules as may be made by the State Government with respect to the conditions on which and the circumstances in which such entries may be corrected or cancelled, correct the error or cancel the entry by suitable entry in the margin, without any alteration of the original entry, and shall sign the marginal entry and add thereto the date of the correction or cancellation. 7. On the strength of the aforesaid provision, the learned counsel for the petitioner submits that the application of the petitioner should have been entertained as a correction application and therefore, the same should not have been rejected as being not maintainable. 8. The learned Standing Counsel, who appears for the State-respondents, submits that this is a case where an entry made earlier was applied for correction and, after obtaining report, by order dated 26.10.2012, correction was directed. In such circumstances, the application of the petitioner was not to correct an original entry but was in fact to review the order passed on 26.10.2012. It was urged that since there is no power of review, the Up Zila Adhikari, Barhaj, Deoria was justified in holding the application as not maintainable. 9. Having noticed the rival submissions, on a close scrutiny of the record, we find that the date of death of Jagat Narayan is the bone of contention between the parties in a litigation pending before the Consolidation Court. In those proceedings an issue has arisen whether Jagat Narayan could file a revision in the year 1971 when he had died in the year 1970. In those proceedings an issue has arisen whether Jagat Narayan could file a revision in the year 1971 when he had died in the year 1970. In the register of births and deaths there appeared an entry with regard to the death of Jagat Narayan in the year 1970. As to when that entry was made is not disclosed in the petition. What is disclosed in the petition is that the private respondents had applied for correction of that entry in the year 1999. It also appears that on the application a report was submitted by ADO (Panchayat) dated 10.01.2000, which is there on record as Annexure 6. From that report it appears that the name of Jagat Narayan finds mention in the family register. The report recites that as the family register rules were notified in the Gazette in the month of June, 1970, the possibility of Jagat Narayan being alive in 1970 is high inasmuch as the register in all probability would have come into existence only thereafter. The report records that from the date of the application submitted by Jagat Narayan and the family register it appears that Jagat Narayan died on 29.08.1971. 10. No doubt, an entry made in the register of births and deaths is admissible as a relevant fact under Section 35 of the Evidence Act and is also admissible as a piece of evidence under Section 17(2) of the Registration of Births and Deaths Act, 1969 to prove the date of death or birth. But, neither section 35 of the Evidence Act nor section 17(2) of the Registration of Births and Deaths Act, 1969 provides that the date of birth or death entered in the register of births and deaths is conclusive proof of the date of death or birth of the person concerned. 11. To ascertain the nature of the proceedings under the 1969 Act, we scanned through its provisions. Despite our effort we could not find any provision in the Registration of Births and Deaths Act, 1969 enabling the Registrar to summon a person to record his evidence on oath. The counsel for the petitioner also could not show any provision under the said Act enabling the Registrar to exercise powers of a Court to summon witnesses and record their statement on oath and to allow cross examination of those witnesses. The counsel for the petitioner also could not show any provision under the said Act enabling the Registrar to exercise powers of a Court to summon witnesses and record their statement on oath and to allow cross examination of those witnesses. The enquiry contemplated under Section 13 is limited for the purposes of verifying the authenticity of the information relating to birth or death of the person concerned brought to the notice of the Registrar or the Magistrate, as the case may be, so as to enable him to form an opinion whether the information provided is to be entered in the register or not and for such purpose it may take an affidavit. An opinion formed in such enquiry is not conclusive determination of the date of birth or death and is therefore not binding on a regular court competent to decide questions relating to living status of a person or other questions of fact. These entries may, however, be taken into consideration as a piece of evidence. As to how much weight is to be attached to such an entry would depend on the facts of each case based on the evidence led by the parties before the court empowered to decide such questions of fact. 12. In such view of the matter, no useful purpose would be served in examining the correctness of the entry in these proceedings when their correctness can be tested in a regular court proceeding on the basis of evidence led therein. We, therefore, decline to interfere with the order impugned in this petition and leave it open to the petitioner to lead such admissible evidence, as they may be advised, in connection with the date of death of Jagat Narayan, before the competent court where the proceedings are pending. 13. Subject to above, the petition is disposed off. 14. It is made clear that we have not expressed any opinion with regard to the date of death of Jagat Narayan.