Dharam Pal and Others vs Prem Singh and Others

Surinder Singh, J.—This Regular Second Appeal was admitted on 27.9.2002 on the following substantial question of law.

Whether the evidentiary value of Ext. PW3/A and PW3/B can be sought to be annulled by extending under latitude to the insignificant pieces of evidence contained in Ext. DW-5/A, DW-5/B. Photocopy of the Family Register Ext. DW-1 result-cum-detailed marks certificate of Prem Singh and Ext. D-2 copy of electoral roll?

In short, facts giving rise to the present appeal can be stated thus. Appellants and proforma Respondent Prem Chand, claim themselves to be the sons of Bhim Sain, who died on 24.1.1991 and being the sole surviving heirs as his sons, they put forth the claim to the property of the deceased situated in tribal area of Lahaul and Spiti and District Kullu, on the basis of custom applicable to the parties, being agriculturist belonging to "Bodh" tribes. According to them, Respondent Nos. 1 and 2 are the sons of Hardassi from Shiv Dayal Respondent. It is alleged that after the death of said Shri Bhim Sain, Respondents in connivance with the revenue officers/officials and also to defeat the rights of the Appellant in the suit land behind their back and without their knowledge got mutation No. 652 pertaining to Mauja Tandi of Tehsil Keylong attested and sanctioned in favour of Respondent Nos. 1 and 2 on 8.6.1991 which was also made the basis for sanctioning the another mutation No. 2418 of Phati Soil Kothi Barshai Tehsil and District Kullu, H.P. Both these mutations are alleged to be factually and legally incorrect and nonest on the rights of inheritance of the Appellants and their brother Prem Chand which culminated into the wrong entries in the revenue records. They specifically pleaded that Respondent Nos. 1 and 2 are the sons of Hardassi from Shiv Dayal Respondent as such sought the declaration to the effect that the mutations aforesaid are null and void with consequential relief of permanent prohibitory injunction.

The suit was resisted and contested by the Respondents aforesaid. They questioned the locus standi of the Appellants to file the suit and also took up the preliminary objections of valuation and jurisdiction. However, on merits they admitted that Bhim Sain was co-owner in possession of the suit land but rest of the allegations have been denied. They contended that the deceased was having two wives, namely, Hardassi and Shivdassi and Respondent Nos. 1 and 2 are the sons of Bhim Sain from their mother Hardasi who later contracted second marriage with Shiv Dayal. Thus, prayed for dismissal of the suit.

In replication, preliminary objections have been denied and even paras of the plaint were reaffirmed.

On the pleadings of the parties, learned trial Court framed following issues:

Whether the Plaintiffs are entitled for the relief of declaration as prayed for? OPP

Whether the Plaintiffs have got no locus-standi to file the present suit? OPD

Whether the Plaintiffs have o cause of action against the Defendants? OPD

Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? OPD

Whether the Plaintiffs have not come with clean hands and have suppressed true facts from the Court and are not entitled for the discretionary relief of injunction? OPD.

Relief.

After completing the trial, learned trial Court from the evidence on record decided Issue No. 1 in favour of the Appellants and other issues against the Respondents. Consequently, the suit was decreed. Respondents felt aggrieved by the impugned judgment and decree, as such filed the appeal before the learned District Judge. The learned District Judge allowed the appeal and set aside the judgment and decree passed by the learned trial Court.

I have heard learned Counsel for the parties and have carefully gone through the record.

The Appellants heavily relied upon the birth certificate Ext. PW3/A and Ext. PW3/B pertaining to Respondents Shyam Singh and Prem Singh respectively which were proved by PW3 Shri B.P. Bhalla Senior Assistant C.M.O. Office Keylong wherein they have been shown to be the sons of Shiv Dayal and Hardassi. These certificates are alleged to have been issued on the basis of birth Register maintained by the police w.e.f. 1962 to 1968 and later submitted in the office of C.M.O. Keylong. Significantly, PW3 stated that all the entries in the Register were made by the Police and admittedly these entries were neither signed by the informant nor name of the informant was mentioned therein. There is also no mention as to who and on whose information these entries were made. In absence of these material particulars, the aforesaid certificates issued by PW3 aforesaid have lost its value.

Contra Smt. Hardassi the mother of Respondent Nos. 1 and 2 stepped into the witness-box and examined herself as DW3. She categorically testified that she was married to Bhim Sain in the year 1955 and during this wed-lock, she gave birth to Respondents Prem Singh and Shyam Singh and one daughter Smt. Bhim Dassi. She further stated that thereafter Bhim Sain had married Shiv Dassi. The youngest son Shyam Singh was 2 1/2 years at that time. Later she also solemnized another marriage with Shiv Dayal Respondent and from him, she gave birth to three children, namely, Paramjit, Nirmala and Kunti @ Shakuntla. Bhim Sain had defrayed the expenses for the maintenance of the children who were from him and Shiv Dayal Respondent owed the burden of other children procreated by him. She specifically stated that she remained as the wife of Bhim Sain for about 13/14 years i.e. up to year 1969 during this period Respondent Nos. 1 and 2 were born. This fact has also been corroborated by DW4 Shiv Dayal. In the matriculation certificate of Prem Singh Respondent he has been shown to be the son of Bhim Sain. Copy of Pariwar Register Ext. DW-5/A and Ext. DW5/B have also shown the said Respondents to be sons of Bhim Sain.

The entry regarding parentage in the Register of birth is, of course a prima facie proof of parentage but it may not be conclusive in nature and also stands rebutted in the circumstances aforesaid when Smt. Hardassi has been proved to be the wife of Bhim Sain having delivered Respondent Nos. 1 and 2 during the lawful wed-lock with Bhim Sain.

Since there is no material on record to show as to who was informant, on the basis of which the parentage of Respondent Nos. 1 and 2 was noted in the birth Register which was made the basis of issuance of certificate Ext. PW3/A and Ext. PW3/B, the said certificates looses its importance and probative value.

Therefore, on the cumulative examination of the entire evidence on record, more specifically in view of the statement of the mother of Respondents aforesaid coupled with the fact that these entries regarding parentage were made in the Pariwar Register and depicted in Ext. D-1 the result-cum-detailed mark sheet of Prem Singh and also in the electoral rolls, assumes importance, which during his life-time were never agitated by Bhim Sain.

In view of this, learned first Appellate Court rightly came to the conclusion that the evidentiary value of the certificates Ext. PW3/A and Ext. PW3/B stands annulled by the statement of DW3 Hardassi and duly supported by the relevant documents as referred to above. The substantial question of law aforesaid stands accordingly answered.

Consequently, the appeal is dismissed. Parties to bear their own costs.