Mehan and others vs Kishi and others

R.S. Narula and S.S. Sandhawalia, JJ.—The circumstances in which this Regular Second Appeal has been filed against the decree of the Court of Shri C. S. Tiwana, Additional District Judge. Ambala, dated June 10, 1966, affirming the decree of the Court of Shri Om Parkash Singla. Subordinate Judge Ist Class, Ambala, dated May 31 1965, for symbolic possession of the land in suit are these. Molu left behind him a son named Amar Singh and a daughter named Kishni Amar Singh owned the land in dispute which had been found by the trial Court to be non ancestral. The said finding was not seriously questioned before the first appellate Court and las not at all been assailed before us. Kishni was born in 1907, vide birth entry Exhibit P. 4, and she performed Karewa marriage with Baru Singh P.W. 9 on July 1, 1929, vide entry of Karewa Exhibit P.W. 12/1.A. Amar Singh left his village and was admittedly not heard of for more then seven years by those who would in normal course have heard of him. The possession of the land m dispute during the lifetime of Amar Singh was of Mehan and Jai Ram defendants Nos. 1 and 2, who are the appellants before us. They were in possession as mortgagees and continued to remain in possession of the land in dispute after the disappearance of Amar Singh till the institution of the suit from which this appeal has arisen, and even thereafter as mortgagees. Mehan and Jai Ram (hereinafter referred to as the appellants) are the third degree collaterals of Amar Singh. Sarup alias Sarupa and Siri Ram defendants Nos 3 and 4, who are respondents Nos. 2 and 3 in this appeal are also third degree collaterals of Amar Singh.

On August 2, 1963, Kishni plaintiff-respondent filed a suit against appellants as defendants Nos. 1 and 2 and against Sarupa and Siri Ram as defendants Nos. 3 and 4 for possession of the land in suit as well as of a house and one-third of a Bara. The suit in respect of the house and one-third of the Bara having been dismissed by both the Courts below, we are no more concerned with that part of the claim. The land in suit measures 42 Kanals and 3 Marias, and is situated within the revenue estate of Naggal Hadbast No. 89, tahsil and district Ambala. The basis of the suit was that Amar Singh had not been heard of by the plaintiff who was his real sister for more than seven years though she would have normally heard of him if he had been alive. On that basis it was alleged that Amar Singh was dead and Kishni plaintiff was entitled to his estate as his nearest heir, Amar Singh having died without leaving behind any wife or issue. It was stated that the appellants had refused to deliver possession to the plaintiff, on July 20, 1963, and therefore, the cause of action for the suit arose on that day. It was not disclosed in the plaint that the appellants were in possession of the land as mortgagees from Amar Singh. The suit was contested by the appellants. In their written statement, dated August 30, 1963, it was stated "that Amar Singh disappeared from the village more than twenty years ago and thereafter did not reappear in the village nor was found anywhere else" and that the plaintiff had kept his disappearance as a guarded secret and had not given the approximate date of disappearance of Amar Singh nor the date of his death in the plaint. It was denied that the plaintiff was the nearest heir of Amar Singh or that she was in any manner related to the deceased. It was claimed that the appellants were the third degree collaterals of the deceased and that the appellants being Jat agriculturists were governed by custom in matters of alienation and succession, and, therefore, the property in dispute which was alleged to be ancestral qua the appellants and Amar Singh was to be inherited by the appellants along with other collaterals as the appellants were the preferential heirs and the plaintiff had no justification to make any claim to the land. A further averment was made in paragraph 2 of the written statement to the effect that "the plaintiff bad during the mutation proceedings given a statement on oath relating to the period of disappearance of Amar Singh" and that she was now estopped from changing her front or denying the fact of the period of disappearance of Amar Singh which had taken place more than twenty years prior to the institution of the suit. In the additional pleas, the appellants stated that the entire land in dispute was under mortgage with them for a sum of about Rs. 3,200/-. It is significant that they did not claim adverse possession of the land in dispute but claimed to be in possession thereof only as mortgagees. On that basis they pleaded that assuming, but not conceding that the plaintiff was proved to be the sister of Amar Singh, and if it was also to be found that she was the preferential heir, she could only file a suit for redemption of the mortgaged property and not the suit for possession simplicities, as she could only step into the shoes of Amar Singh in that event. It was denied that the suit was within time as Amar Singh was stated to have disappeared about 22-23 years prior to the institution of the suit, and had never been heard of by the appellants who were his third degree collaterals. The appellants also claimed to have made improvements on the lands at a heavy cost of about Rs. 20,000/- by planting a garden therein. From the pleadings of the parties, the trial Court framed the following issues :

(1) Whether the plaintiff is the sister of Amar Singh deceased ?

(2) When did Amar Singh die and whether the suit is within limitation ?

(3) Whether the property in suit is ancestral qua the defendants ?

(4) Whether the defendants are collaterals of Amar Singh deceased within five degrees ?

(5) Whether the house and Bara in dispute belong to Amar Singh deceased ?

(6) What improvements if any were effected by defendants Nos. 1 and 2 and what, if any are they entitled therefor ?

(7) Whether the defendants Nos. 1 and 2 are mortgagees with possession of the land in suit ?

(8) If issue No. 7 is proved whether the suit for possession simp liciter lies ?

(9) Relief.

In its judgment, dated May 31, 1965, the trial Court found that Kishni plaintiff was the sister of Amar Singh deceased, that Amar Sing was presumed to be dead, and that in the absence of any evidence to the contrary, he was presumed to have died on the date of institution of the suit and not at any earlier time. As already stated it was found on issue No. 3 that the whole land in dispute must be taken to be not ancestral when the ancestral portion was insignificantly small and had not been shown to be any specific portion of the whole land. Issue No. 4 was conceded by the plaintiff and it was held that the appellants were collaterals of the deceased within five degrees. Issue No. 5 relating to the Bara was decided against the plaintiff on the ground that it was not proved that the Bara belonged to Amar Singh deceased. Issue No. 6 was left open on the ground that the appellants being the mortgages, the exact amount to which they would be entitled before the land is redeemed from them would be determined when a suit for redemption is filed and the question of the precise amount to which the appellants may be entitled on account of the alleged improvements would have to be determined in those proceedings. Issue No. 7 was decided in favour of the appellants and it was held that they were mortgagees of the land in suit with possession for a total sum of Rs. 3,213/-. On issue No. 8 the trial Court held that the plaintiff was not entitled to actual possession of the land in dispute without redeeming it, and that she was, there fore, entitled only to a decree for symbolical possession. As a result of his above said findings the learned Subordinate Judge decreed the suit for symbolical possession in respect of the land in dispute, but dismissed the same in respect of the house and the Bara leaving the parties to bear their own costs.

In their first appeal filed by the appellants, the findings of the trial Court on issues Nos. 1 and 2 alone were assailed and the learned Addl. District Judge, therefore, observed that only the points covered by those two issues arose for determination in the appeal. The findings of the trial Court on issues Nos. 3 to 8 were not questioned. Having upheld the decision of the trial Court on issues Nos. 1 and 2 also, the learned Additional District Judge dismissed the appeal of the contesting defendants with casts on June 19. 1966. Not satisfied with the judgment and decree of the first appellate Court, the contesting defendants have come up in this Regular Second Appeal.

At the hearing of this appeal Mr. Manmohan Singh Librehan, the learned counsel for the appellants, first assailed the concurrent finding of both the Courts below on issue No. 1. He submitted that the finding of the first appellate Court on that issue is vitiated on account of its being based on inadmissible evidence consisting of the birth entry Exhibit P. 4, and the oral evidence of witnesses which could not have been ad�mitted and could not be relied upon, in view of the provisions of section 50 of the Evidence Act. Exhibit P.4 is a certified copy of a birth entry contained in the register relating to the period 7th of September 1906 to 28th November, 1907. wherein it is shown that a daughter had been born to Molu on 22nd January, 1907. The copy was supplied against a regular application on payment of the usual charges. It is signed by a Clerk of the Civil Surgeon''s office, Ambala, who prepared the copy as well as by the Head Clerk of the Civil Surgeon''s office who compared it with the original. It has then been attested under the signature of the Civil Surgeon, Ambala, himself, and certified to be a correct copy of the original entry. The attack by the learned counsel for the appellants on the evidence comprised in Exhibit P.4 is based on the judgment of the Supreme Court in Brij Mohan Singh Vs. Priya Brat Narain Sinha and Others, . In that case an entry in the electoral rolls showing the age of the candidate was assailed on the ground that the candidate in question had not attained the age of 21 years on the relevant date according to an alleged entry of birth and according to the age of the candidate entered in his school certificate. The learned Judges refused to consider the age entered in the school certificate as authentic evidence and held that it would be improper for the Court to base any conclusion on that entry when it had been alleged that it was based on false information supplied with the motive of permitting the candidate to obtain an advantage in seeking public service for which minimum age for eligibility may be prescribed. So far as the birth entry was concerned, their Lordships of the Supreme Court held that it did not fall within the purview of section 35 of the Evidence Act. The entry occurred in an official record which had in that case been maintained by an illiterate Chowkidar and the entry had admittedly not been made by the Chowkidar himself but purported to have been made by someone else at his request. Section 35 of the Evidence Act reads:

An entry in any public or other official book, register, or 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 is kept, is itself a relevant fact.

The reason why the Supreme Court refused to consider the birth entry as relevant evidence in Brij Mohan Singh''s case (supra) was that one of the conditions precedent for bringing the case within the purview of section 35 of the Evidence Act was that the entry in questions should be 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"

On the facts of that case, it was found that the Chowkidar who was a public servant had not made the entry and that the other person who had made the entry at the instance of the Chowkidar had not done so in performance of any duty specially enjoined on him by any law. No such criticism has been made against the original birth entry of which Exhibit P.4 is the copy in this case. As already stated, the birth and death register from which the entry has been produced in the present case was being maintained by Police-station, Sadar, Ambala, and the entries could, in the absence of evidence to the contrary, be presumed to have been made therein only by the police official concerned in the discharge of his official duty. The entry in question has been duly proved by production of a copy certified in the manner provided by section 76 of the Evidence Act. The contents of the entry, therefore, stand automatically proved u/s 77 of the Evidence Act particularly when no objection to the authenticity of the copy was ever raised in this case, and it is not disputed that the certified copy, Exhibit P. 4, is of an entry in the register which is a public document and which is open to inspection and which has been duly certified by the officer having the custody of the register according to law. There is, therefore, no merit in the first attack of the learned counsel for the appellants on the finding of lower appellate Court on issue No. 1 based on the evidentiary value of the birth entry, Exhibit P.4.

In order to appreciate, the second attack on the finding on issue No. 1, the provisions of section 50 of the Evidence Act may be noticed at this stage:

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 subjects is a relevant fact:

Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Divorce Act, or in prosecutions, u/s 494, 495, 497 or 498 of the Indian Penal Code.

when analysed, the above quoted provision would show that when the Court has to form an opinion as to the relationship of one person to another, what is relevant under that provisions i.e., u/s 50 of the Evidence Act (excluding the excepted categories mentioned in the proviso to the section itself, in none of which this case admittedly falls) is:

(i) the opinion as to the existence of such relationship;

(ii) which mast be the opinion of a person who as a member of the family or otherwise has special means of knowledge on the subject; and

(iii) which opinion must be expressed by conduct. If all the above said three conditions are satisfied, the opinion of the witness in question would be a relevant fact.

If anyone of the three ingredients of section 50 mentioned above is found to be wanting in a case, the evidence of the person concerned as to his opinion about relationship in dispute would not be relevant u/s 50. The criticism of the learned counsel for the appellants was that the oral evidence as to relationship led in this case was not of the conduct of the witnesses who appeared in the Court. According to counsel the evidence of those witnesses would not, therefore, be relevant. Counsel relied in this connection on the judgment of this Court (Pandit, j.) in Ajaib Singh and others v. Mann Singh and others (1968) 770 P.L.R. 83, In that case the learned Judge held that it is not the conduct of those two persons inter se whose relationship was in dispute, but the conduct of the witness himself towards them, which is material for the purposes of section 50 of the Act. The judgment of the learned Single Judge appears to be based on the authoritative pronouncement of the Supreme Court in Dolgobinda Paricha v. Nimai Charan Misra and others AIR 1959 S.C. 915. It was held by the Supreme Court that the essential requirements of section 50 are, (1) there must be a case where the Court has to form an opinion as to the relationship of one person to another; (2) in such a case, the opinion expressed by conduct as to the existence of such relationship is a relevant fact; (3) but the person whose opinion expressed by conduct is relevant must be a person who as a member of the family or otherwise has special means of knowledge on the particular subject of relationship. Their Lordships held that section 50 does not make evidence of mere general reputation (without conduct) admissible as proof of relationship, and that the conduct or outward behavior must be proved by the person who saw the conduct. The conduct has to be of the person who fulfils the essential conditions of section 50 and it must be proved in the manner laid down in the relevant provisions of the Evidence Act. Their Lordships expressly held that the portion of section 60 of the Evidence Act which provides that the person who holds the opinion must be called to prove his opinion does not necessarily delimit the scope of section 50 in the sense that opinion expressed by conduct must be proved only by the person whose conduct expressed the opinion, Their Lordships observed that "conduct as an external perceptible fact, may be proved either by the testimony of the person himself whose opinion is evidence u/s 50 or by some either person acquainted with the facts which express such opinion, and as the testimony must relate to external facts which constitute conduct and is given by persons personally acquainted with such facts, the testimony is in each case direct within the meaning of section 60." The learned counsel for the appellants was not able to read to us any oral evidence relied upon by the Courts below which would not fall within section 50 read with section 60 of the Evidence Act. The first appellate Court relied for its finding on issue No. 1 mainly on the birth entry Exhibit P. 4, and on the admission of the appellants themselves contained in their statement made by them at the time of attestation of the mutation before Revenue Authorities to the effect that Amar Singh was not dead and that "he had been visiting his sister Mst. Kishni." Though the Court below did not consider it safe to rely solely on that admission because it was not signed by the appellants, it cannot be gainsaid that the said statement was. a relevant piece of evidence. Significance was also rightly attached by the Court below to the fact that though the appellants, who are thirst degree collaterals of the deceased, were to gain by denying the relationship of Kishni with the deceased, they did not in fact deny the same at any time before filing their written statement in this suit, though they had opportunity to make such a denial before the Revenue Authorities. The first appellate Court does not appear to have placed much reliance on the oral evidence in this respect. It is, therefore, useless to go into the relevancy and value of the testimony of oral witnesses in this respect though it cannot be ignored that even other collaterals of the deceased have deposed to the plaintiff being his sister (sister of the deceased). The conduct of Amar Singh in the matter of relationship with Kishni would no doubt have been a relevant fact if Amar Singh himself were to appear as a witness and depose about it. Amar Singh being dead, those who observed the conduct of Amar Singh in this connection can, in my opinion, depose about the same, and their evidence to that effect would not be irrelevant. Be that as it may, no particular reliance having been placed on the oral evidence and the finding of the Court below on issue No. 1 having been based on documentary evidence with which no fault has been successful found by the appellants, it is impossible to disturb the concurrent finding of fact on this issue. It was fairly and frankly conceded by the learned counsel that if neither of these two attacks made by him succeeds, it is not possible for him to assail the finding of the lower appellate Court on issue No. 1 as it is a pure finding of fact which is not open to challenge in a second appeal. We have, therefore, no hesitation in affirming the finding of the learned Additional District Judge on issue No. 1.

On issue No. 2 a good deal of authorities were cited by both sides as to the scope and interpretation of section 108 of the Evidence Act. Both sides vied with each other in placing before us case after case as if there was some dispute about the meaning of that section. On an analysis of the judgments hereinafter referred to, it, however, became clear that there was no material conflict between any of the cases cited by either side. Counsel for the appellants relied on Lal Chand Marwari v. Mahant Ramrup Gir and another AIR 1926 P.C. 9 , Ram Singh Vs. Board of Revenue and Others, , Kottapalli Vcnkateswarlu Vs. Kotta-palli Bapayya and Others , and AIR 1931 582 (Lahore) . Learned counsel for the respondents on the other hand placed reliance on the judgments in Huseinny J. Bhagat and Another Vs. Life Insurance Corporation of India, Madras, . Ramabai and others v. Saraswathi and others AIR 1953 T.C. 114 , and AIR 1944 29 .

In order to appreciate the point, sections 107 and 108 of the Evidence Act may be quoted at this stage:

When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it.

Provided that when the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it.

According to all the judgments cited by both sides, the presumption u/s 108 of the Evidence Act extends only to the factum of death at the expiration of seven years and not to the time of death at any particular period. In none of the cases it has been held that any presumption can be raised u/s 108 of the Evidence Act that the death of the person concerned took place on any particular date or even at the end of seven years or at any other particular time within the period of seven years in question. There is a consensus of authorities on the point that the exact time of death is not a matter of presumption u/s 108, but of proof by evidence which may be oral or circumstantial. It also appears to be clear from a study of the above mentioned cases that the burden of proof that death took place at a particular time within the period of seven years lies on the person who claims a right for the establishment of which that fact is essential. It has been specifically held in several cases that death cannot be presumed to have occurred on the date on which the suit was filed merely because of the provision of section 108 of the Evidence Act. Under that provision it may indeed be presumed that the man is not alive by the date of the institution of the suit, but there would be no presumption that he died on the very date of the institution of the suit itself. The learned Additional District Judge appears to have noticed a non-existing conflict of authority between the judgment of the Andhra Pradesh High Court in Kottapelli Venkateswarlu v. Kottapalli Bapayya on the one hand and that of the Peshawar Court in Walt Mohd. s/o Sher Khan v. Gaman s/o Kola Khan and the judgment of the Travancore-Cochin High Court in Ramabai and others v. Saraswathi and others 9 on the other. After a careful study of all these cases, learned counsel for both sides had to concede and we think rightly, that there is in fact no conflict in the views on the subject expressed in any of the above said cases. We, therefore, agree with the learned counsel for the appellants that the trial Court in this case was in error in holding that Amar Singh should be presumed u/s 108 of the Evidence Act to have died on the date of suit and not at any earlier point of time. In fact all that can safely be presumed u/s 108 of the Evidence Act is that Amir Singh had died at some unknown point of time prior to the institution of the suit. As to when he actually died is a question of fact which has to be proved like any other fact. It is, however, significant to note that the learned Additional District Judge did not in so many words hold that he was presuming the date of Amar Singh''s death to be the date of the institution of the suit. In fact it would not be proper to raise any such presumption from the evidence on the record of this case because according to the evidence produced by both sides Amar Singh had not been heard of for at least, fifteen or sixteen years prior to the institution of the suit. The question that arises in these circumstances is whether the suit filed by the plaintiff after an unknown number of years of the fictional death of Amar Singh was within time or not. The answer to this question depends on the nature of the suit. It the suit had been filed on the basis of possession and subsequent dispossession, and the defendant-appellants had pleaded adverse possession, the plaintiff could not have succeeded without proving that she had been in possession within twelve years prior to the suit. In that case the defendants could not have succeeded on the issue of adverse possession without showing that they had been actually in adverse possession tor more than twelve years prior to the institution of the suit. That question does not, however, arise in the present case as the defendant-appellants neither impliedly nor expressly pleaded adverse possession as a defence to the suit. On the contrary they admitted permissive possession of the estate of Amar Singh as mortgagees from Amar Singh. We have, therefore, to decide whether this suit fell within Articles 140, 142 or 144 of the first Schedule to the Limitation Act. Article 140 relates to a suit by a remainder man, a reversioner (other than a landlord) or a devisee, for possession of immovable property. The period of twelve years in such a suit commences from the time when the estate falls into possession. The appellants claim that this suit should have been filed only within the time allowed by Article 140. We think this argument is misconceived. Kishni did not claim to be either a remainderman or a. reversioner or a devisee of Amar Singh. She has claimed as an heir. The learned counsel for the appellants was not able to cite any authority in support of his proposition that a suit of this type could be covered by Article 140. His submission in the alternative was that the suit would be governed by Article 142. That Article relates to a suit for possession of immovable property when the plaintiff, while in possession of the property, has been dispossessed or has discontinued the possession. The time of twelve years for such a suit commences from the date of dispossession or discontinuance. Counsel relied in this respect on the Full Bench judgment of this Court in Santa Singh Gopal Singh and Others Vs. Rajinder Singh Bur Singh and Others, . It was held in that case that in a suit where the pleadings of the parties left no room for doubt that the suit was based on allegation of title as also prior possession and dispossession or discontinuance of possession subsequently, the suit is governed by Article 142 and not by Article 144 To the same effect is the judgment of the Lahore High Court in AIR 1933 893 (Lahore) . There is no quarrel with the proposition of law laid down in those cases. But as already stated there is absolute want of any plea of possession and dispossession in this case. On the contrary it is remitted that the plaintiff was never in possession of the property which continued to be in possession of the appellants as mortgagees since the time Amar Singh was admittedly alive. This suit is, therefore, governed by Article 144 which relates to an action for possession of immovable property not otherwise specifically provided for in the first Schedule to the Limitation Act, 1908. The time of twelve years for the institution of such a suit commences from the date when the possession of the defendants becomes adverse to the plaintiff. In this case it is admitted that the possession of the defendant-appellants never became adverse to the plaintiff, as the appellants having once taken possession as mortgagees continued to claim to be in possession in that capacity though they denied the title and claim of Kishni plaintiff for dispossessing them when this suit was filed. Mr. Manmohan Singh then submitted that if Article 144 applies, the suit is beyond time. For this proposition he relied on the pronouncement of the Privy Council in Lal Chand Marwari''s case (supra), wherein it was held that when a plaintiff claims as heir to a life- holder who is not heard of since over seven years and defendants are in possession for over twelve years, Article 144 applies and it is the plaintiff who must prove the date of death within twelve years of the suit. Counsel submitted that in so for as the plaintiff had failed to prove that Amar Singh died within twelve years of the filing of the suit, and inasmuch as there are clear indications to the contrary and even implied admission of the plaintiff which cannot be consistent with a claim about Amar Singh having died within twelve years of the suit, the action must be held to be barred by time even under Article 144. We think this argument of Mr. Manmohan Singh is misconceived. In Lal Chand Marwari''s case (supra), the defendant was not in possession as a mortgagee, but claimed to be in possession in his own right. We have already stated that different considerations apply to a case where the defendant claims adverse possession. Limitation under Article 144 would start only from the date on which the defendant claims to be in adverse possession. In this case, the defendant appellants never so claimed. We, therefore, agree with the learned Additional District Judge that the land in suit being under mortgage with the appellants, the suit of the plaintiff could not be held to be barred by time in any event.

One aspect of the case still remains to be considered. The plaintiff is admittedly not entitled to take possession of the property without redeeming the same from the appellants. Her title to the property having been established on account of her being the nearest and sole heir of the estate of the deceased, and the land in dispute having been found to be non-ancestral property of the deceased, she is deemed to be already in constructive possession of the property. For actual possession she must file a suit for redemption. The Courts below thought that a suit for possession includes a suit for actual possession as well as one for symbolic possession and on that basis granted a decree for the like relief in favour of the plaintiff. We are inclined to think that cloud having been cast on the title of the plaintiff, all that she is entitled to this in case is a declaration to the effect that she is the preferential heir of Amar Singh dec eased and has as such preferential heir inherited the right, title and interest of Amar Singh in the land in dispute, and that in her presence the appellants and respondents Nos. 2 2 and 3 have no claim to the land in suit. We would, therefore, allow this appeal to this extent that for the decree for symbolical possession granted by the first appellate Court shall be substituted a decree for declaration to the above effect. This is a lesser relief than the one claimed by the plaintiff, and can, therefore, be granted in this litigation though no declaration has been specifically claimed as such in the plaint. Except for this, no relief can be granted to the defendant-appellants who continue to be in occupation of the land in dispute as mortgagees and whom the plaintiff-respondent shall be entitled to dispossess only by redeeming the land from them in a suit on the foot of the admitted mortgage or otherwise in accordance with law. We make on order as to costs of this appeal.