Jagan Nath vs Moti Ram and Others

Harnam Singh, J.—Tarbeni Sahai Defendant 1 sold 3 bighas 14 biswas of land for Rs. 464 to Hira Lal Mutation No. 1318 in respect of that sale was sanctioned on 6-12-1936. Tarbeni Sahai then sold 3 bighas, 3 biswas of land for Rs. 200 and mutation No. 2343 in respect of that sale was sanctioned on 5-9-1937.

Jagan Nath, son of Tarbeni Sabai instituted the suit of which this appeal has arisen on 7-11-1945, for a declaration that the sales set out in the preceding paragraph were effected without consideration and legal necessity and that the sales will not affect his reversionary rights after the death of Tarbeni Sahai alienor. The contesting Defendants resisted the suit inter alia on the ground that the suit was barred by time. The trial Court granted the Plaintiff declaration to the effect that the sales in question were without consideration and legal necessity and would not be binding upon his reversionary rights after the death of Defendant 1. In the trial Court, the parties were left to bear their own costs. The contesting Defendants then preferred an appeal from the decree passed by the trial Court on 21-1-1947. The lower appellate Court has allowed the appeal leaving the parties to bear their own costs in the appellate proceedings and has dismissed the Suit as barred by time.

From the decree passed by the Senior Subordinate Judge on 18-10-1947, Jagan Nath Plaintiff has come up in further appeal u/s 41, Punjab Courts Act VI [6] of 1918.

Mr. D.N. Aggarwal, learned Counsel for the Appellant contends that the finding of the lower appellate Court on issue No. 2 is not sustainable. He then contends that the Plaintiff was entitled to the protection given by Section 11, Indian Soldiers Litigation Act, 1925.

Now, the finding of the lower appellate Court on issue No. 2 proceeds upon the fact that the Plaintiff has not been able to prove that he was born on 2-1-1925. The sole question involved is one of fact, but Mr. D.N. Aggarwal contends that the finding of fact is vitiated for the reason that the lower appellate Court has excluded from consideration the document Ex. P. 13, school leaving certificate of Jagan Nath Plaintiff Appellant. Counsel point out that in the School leaving certificate, Ex. P. 13, the date of birth of Jagan Nath Plaintiff. Appellant is stated to be 2-1-1925. Mr. D.N. Aggarwal then contends that the oral evidence examined at the trial has also not been considered by the lower appellate Court in reaching a decision on issue No. 2.

With respect to the oral evidence the lower appellate Court said:

The oral evidence adduced by the Plaintiff Respondent in respect of his date of birth is vague and unsatisfactory.

Mr. D.N. Aggarwal argues that the discussion of the evidence by the lower appellate Court is unsatisfactory and contains an error. Now, I have perused the entire evidence given at the trial. Net Ram P.W. 1, Sis Ram P.W. 2, Girdhari Lal P.W. 3, Rup Chand P.W. 4, Ram Kishan P.W. 5, Chaman Lal, P.W. 6, Raghbir Singh, P.W. 7 and Tarbeni Sahai P.W. 8, gave evidence at the trial on the point involved in issue No. 2. Net Ram P.W. 1 stated in examination-in-chief that the Plaintiff was 20 or 21 years old. In cross-examination he stated that he could not give the date of birth of the Plaintiff and when asked about the date of death of Prakash Wati, mother of the Plaintiff he stated that she died 26 years or 27 years or 30 years ago. Sis Ram P.W. 2, acted as the Mulchtar of the Plaintiff in the suit out of which this appeal has arisen and his evidence is open to the same objection. To similar effect is the evidence given at the trial by Girdhari Lal P.W. 3, Rup Chand P.W. 4 and Ram Kishan P.W. 5. Chaman Lal P.W. 6 gave evidence at the trial that Tarbeni Sahai P.W. 8 came to settle in Sonepat 24 years ago and that Jagan Nath Plaintiff was born to him within a year of his coming to Sonepat. He gave evidence at the trial on 20-11-1945. Now, if the evidence given by Chaman Lal be acceped the suit was clearly barred by time. Raghbir Singh P.W. 8, however, stated that Tarbeni Sahai came to live in Sonepat 30 years ago. No reliance could be placed upon the evidence given by these witnesses which is clearly vague and unsatisfactory.

I now pass on to consider the evidence given by Tarbeni Sahai, father of Jagan Nath Plaintiff: He was not certain whether before Jagan Nath was born to him he had four or five children from his wife Mt. Parkash Wati. Then he stated that he gave up the medical profession five or seven years ago. In a question put to him in cross-examination he stated that he could not give the date of birth of any of the other children born to him. Indeed he contradicts the evidence given by Chaman Lal P.W. 6 and Raghbir Singh P.W. 7 by stating that he remained in Sonepat between 1925 to 1947. On the facts set out above, I am clearly of the view that the evidence given by the witnesses examined by the Plaintiff in respect of the date of birth of the Plaintiff in respect of the date of birth of the Plaintiff is vague and unsatisfactory.

Mr. D.N. Aggarwal then contends that the certificate Ex. p. 13 has been wrongly ruled out of consideration. Now, it does not appear from the certificate, Ex. p. 13, whether the school to which Jagan Nath was admitted on 23-7-1937, was a Govt. school or a private school. Again there is not a scintilla of evidence on the record to show on what material the entry in the register about the age of the Plaintiff was made. Tarbeni Sahai stated that he did not accompany the child when he was admitted to the school. In the examination-in-chief of Tarbeni Sahai, P.W. 8, there is a suggestion that Harsarup Patwari, maternal grandfather of the Plaintiff took the child to the school and got him admitted to the school. As stated above at the time of the admission of Jagan Nath to the Middle School Bagpat, Tarbeni Sahai was not present. That being so the statement made by him in examination, in-chief is hit by the rule of hearsay. As stated above there is no evidence on the record to show on what material the entry in the register about the age of Jagan Nath was made. A similar point was raised in Raja Janaki Nath Roy and Others Vs. Jyotish Chandra Acharya Chowdhury and Others, In that case Nasim Ali J, said:

In support of their case the Appellant rely on the statement in the school register about the age of the Plaintiff There is no evidence to show on what materials the entry in the register about the ago of the Plaintiff was made. Defendant 11 stated in his evidence that Plaintiff was born in 1913 B.S. The trial Judge has believed the evidence of P.W. 2 and P.W. 3. The school register has not much evidentiary value.

With very great respect, I agree with the opinion expressed by Nasim Ali J., in Raja Janaki Nath Roy and Others Vs. Jyotish Chandra Acharya Chowdhury and Others, that the school register is not of much evidentiary value when there is no evidence to show on what materials the entry in the register about the age of the Plaintiff was made.

In Asa Nand v. Gian Chand AIR 1936 Lah. 598 : 164 I.C. 751 the Defendants case was that he was a minor and he supported his case by the production of a school register in which the date of his birth was shown as 24-3-1911. Considering value of the entries in the school registers, Monroe J., said:

I am in hearty agreement with the learned District Judge that entries in school registers are of little value as evidence of age.

For these reasons, I am of the opinion, that the Plaintiff has not been able to prove that he was born on 2-1-1925.

Mr. Dwarka Nath Aggarwal then contends that the Plaintiff was entitled to the protection given by Section 11, Indian Soldiers Litigation Act, 1925. Section 11 reads:

In computing the period of limitation prescribed by Sub-section (2) of Section 10 of this Act, the Indian Limitation Act, 1908, or any other law for the time being in force, for any suit, appeal or application to a Court, any party to which is or has been an Indian Soldier, or is the legal representative of an Indian soldier, the period during which the soldier has been serving under any special conditions, and, if the soldier has died while so serving, the period from the date of his death to the date on which official intimation thereof was sent to his next of kin by the authorities in India, shall be excluded.

The proviso appended to Section 11 is not relevant for the purpose of the decision of this appeal.

Now, the Plaintiff can claim the benefit of Section 11 by proving that he has been serving under "special conditions" within the meaning of Section 3 of the Act. There is no evidence on the record to show that the Plaintiff was serving under "special conditions" within the meaning of Section 3 of the Act. Jagan Nath, Plaintiff P.W. 9, merely stated that he joined military service on 9-11-1943, and that he obtained his discharge on 19-12-1946. There is no indication in the evidence given by him whether during that period he was serving out of India or whether he was under orders to proceed on field service, or serving with any unit which was for the time being mobilised, or serving under conditions which in the opinion of the prescribed authorites precluded him from obtaining leave of absence to enable him to attend a Court as a party to any proceeding. Indeed, Mr. D.N. Aggarwal conceded that the evidence given by Jagan Nath P.W. 9 would not bring his case within Section 11 of the Act.

No other point was pressed before me.

Finding that the lower appellate Court has come to a just conclusion that the Plaintiff suit was barred by time I dismiss the appeal with costs.