M.M. Kumar, J.@mdashThis is plaintiffs appeal filed u/s 100 of the Code of Civil Procedure, 1908 (for brevity ''the Code'') challenging concurrent findings of facts recorded by both the courts below holding that the plaintiff-appellants have not been able to prove themselves as the sons of defendant-respondent Mann Singh. It further held that the land in dispute held by defendant-respondent Mann Singh is ancestral and in the absence of proof that the plaintiff-appellants are the sons of defendant-respondent, no permanent prohibitory injunction against defendant-respondent Mann Singh could be issued.
2. The plaintiff-appellant namely Shri Sher Singh along with his brother Bhagwana plaintiff-respondent No.2 filed civil suit No. 184 of 17.6.1977 against the defendant-respondents with a prayer that defendant-respondent Mann Singh be restrained from alienating the ancestral and coparcenary agricultural land. A further prayer was made that the defendant-respondent be restrained from interfering in the use of the suit land by the plaintiff-appellant and plaintiff-respondent No.2 on the ground that it was coparcenary and ''ancestral property''. It was alleged that the defendant-respondent was a drunkard person and was bent upon to alienate the suit land without any legal necessity.
3. In the written statement, the defendant-respondent categorically denied the assertion of the plaintiff-appellant and that they are his sons. It was asserted that Smt. Keshar after the death of her earlier husband Chhaju performed a Karewa marriage with one Phulia resident of village Siha and since then she has been residing with him at Siha as his wife. It is further alleged that the plaintiff-appellants were born out of the wedlock of Shri Keshar and Phulia. The defendant-respondents has claimed that he remained unmarried. He has also claimed that he was exclusive owner in possession of the suit land and as such-was entitled to alienate the same in any manner he liked. It was further aleged that the plaintiff-appellant and plaintiff-respondent No.2 did not have any right in the property. Some customs have also been pleaded in support of the afore-mentioned assertion. The plaintiff-appellants also filed a replication.
4. On the pleadings of the parties, following issues were framed;-
1. Whether the plaintiffs are sons of defendants? OPD
2. If issue No. l if proved whether the parties are members of a Joint Hindu Family? OPP
3. Whether the suit property is a coparcenary property of the Joint Hindu Family? OPP
4. Whether the plaintiffs are entitled to the injunctions prayed for? OPP
5. Whether the parties are governed by custom in matter of alienation. If so, what custom is? OPD
6. Whether the suit is not maintainable in the present form? OPD
7. Whether the defendants are entitled to any compensatory cost u/s 35-A CPC? OPD
8. Relief.
5. Issue No. l is the core issue and the whole controversy in this case revolves around that issue. The trial Court held that the plaintiff-appellants were not the sons of defendant-respondent. The birth certificates Exs.P-4 and P-21 produced by the plaintiff-appellants were discarded on various grounds. The statement Ex.P-5 alleged to have been made by the defendant-respondent in another proceedings was also brushed aside on the ground that it was not accepted by the defendant-respondent while appearing as DW-1, a copy of the application for ration card, showing that the plaintiff-appellants were recorded as the sons of Phulia on the primary ground that the application was verified by the Sarpanch of the Village. Further reliance has been placed on Ex.D-2, Voters list, showing that the plaintiff-appellants were sons of Phulia. The afore-mentioned findings on issue No. l have been affirmed by the learned Additional District Judge, Narnaul. The views of the learned Additional District Judge in this respect read as under;-
"... I fee! no hesitation in holding that the plaintiffs have miserably failed to prove themselves as the sons of the defendant-respondent Man. Evidence led on behalf of them is replete with discrepancies and contradictions. No reliance can be placed upon copies Exts.P-4 and P-21 of birth entries. There is no convincing material on record that Smt. Keshar had performed Karewa marriage with Man after the death of her husband Chhaju. There is no evidence at all on record that Smt. Keshar and Man lived as husband and wife in village Kanina. Instead, there is an admission on the part of plaintiff Sher Singh that he and his brother and their mother Smt. Keshar are living in village Siya for the last 37 years. He made his statement on 4.11.1977 voters list Ex.D-1 (too) corroborate the plaintiff Sher Singh. None of the witness produced by the plaintiffs has stated that Karewa Marriage of the defendant respondent Man and Smt. Keshar had taken place in his presence. None of them has stated that Keshar and Man lived as husband and wife in village Kanina, Smt. Nand Kaur PW-2 stated that Keshar''s husband Chhaju had died after about 5/6 months of their marriage. Smt. Keshar''s muklava was performed with Chhaju. After the death of Chhaju Smt. Keshar solemnised Karewa marriage with Man. She admitted that Keshar started living at Siha and gave birth to a daughter. Brother-hood was not present at time of said karewa. She admitted that the plaintiff(s) were living in the house of Phulia at village Siha with their mother Keshar. Sadhu PW-3 stated that Chhaju had died just after twenty days of his marriage with Smt. Keshar. The defendant Man had brought Smt. Keshar after ''muklava''. Defendant Man was aged about 8/9 years only at that time and Smt. Keshar was aged about 13 years. Smt. Keshar stated that he husband Chhaju had died after 4/8 months of their marriage and that her ''muklava'' was performed with the defendant Man. She did not state that she had done karewa marriage with Man or vice versa. Further she stated that the defendant Man was 9/10 years old at the time of ''muklava''. After about eight years she gave birth to a daughter from the loans of Man Singh. After three years she gave birth to the plaintiff Sher. Again after three years she gave birth to plaintiff Bhagwana. Both the plaintiff were born out of the loins of the defendant Man. Further, she lived at Kanina with the defendant Man for a continuous period of twenty years. The defendant Man was tutored against her by a neighbour Smt. Lali. Thereafter, one day the defendant Man removed her and her sons from his house after giving them thresh (sic). She stated in cross-examination that her parents had done her karewa marriage with Man after applying ''tilak'' on the head of Man and giving Re. l/- to him. Further she admitted that she was known as the wife of Phulia in village Siha. She admitted that she has been shown as the wife of Phulia in ration card and voter list. She never visited Kanina after she was turned out by Man Singh. She stated her younger sister was marriage (married?) at village Bhadaf with Bhola and that she used to visit Bhola frequently to pass her time."
6. The Additional District Judge .also relied upon the documentary as well as oral evidence adduced by the defendant-respondents. On the basis of his own analysis of the whole evidence, the learned Additional District Judge, while approving the view of the trial Court held as under:-
"All the witnesses examined by the defendant have consistently deposed that the defendant Man had not done Karewa marriage with Smt. Keshar nor Smt. Keshar lived ever with Man as his wife in village Kanina. They stated that the plaintiffs and their mother Smt. Keshar were living with Phulia at village Siha and that Smt. Keshar was- known as the wife of Phulia. Their evidence find support from the evidence of Ishwar Singh DW-2, Sub Inspector, Civil & Supply, Kanina. He has proved copy Ex.D-1 of the ration card. In this document Smt. Keshar has been shown as the wife of Phulia. Sher Singh plaintiff has been shown as the son of Phulia. Another document which took (too?) has been marked as D-l is on the record. It is copy of electoral roll of the year 1976. This document fortified the stand of the defendant and corroborated the version of plaintiff Sher Singh. Ex.P-5 cannot be termed as an admission allegedly made by the defendant Man. No where in Ex.D-5 it has been mentioned that defendant Man admitted both the plaintiffs as his sons and Smt. Keshar as wife. It is clear from his cross-examination that he was some other Man who made statement of which the copy is Ex.P-5. Evidence given by Smt. Keshar is totally contradictory with the evidence of her son Sher Singh and other witnesses examined by the plaintiffs. It is evident from the statement of Smt. Keshar that she never sticked to one hearth and for this reason, no reliance can be placed upon her testimony. In fact the plaintiffs have themselves damaged their cases. Plaintiff Sher Singh himself admitted that he, his brother and Smt. Keshar (had been) living in village Siha for the last 37 years. Two documents marked as Ex.D-1 discussed above, corroborate the version of the defendant Man as well as of the plaintiff Sher Singh and that of Smt. Keshar. Birth entries of which the copies have been produced Exts.P-4 and P-21 have not been duly proved. There is no evidence on record that Smt. Keshar ever lived with the defendant Man as his wife in village Kanina."
7. My Ajay Jain, learned counsel for the plaintiff-appellant has vehemently submitted that according to Section 17(2) of the Registration of Births and Deaths Act, 1969 (for brevity, ''1969 Act'') a certificate issued by the Registrar of Births and Deaths or by an officer authorised by the State Government to give extracts from the register of Births and Deaths is admissible in evidence for the purpose of proving the birth or death to which the entry relates. The learned counsel has also placed reliance on Section 29 of 1969 Act to argue that the Births, Deaths & Marriages Registration Act, 1886 (for brevity, ''1886 Act'') has not been abrogated which can still be relied upon. The learned counsel has mentioned that according to Section 9 of 1886 Act, an entry made in the register of Births, Marriages and Deaths shall always be admissible in evidence to prove birth, death or marriage to which the entry belongs. The learned counsel has urged that u/s 76 of the Indian Evidence Act, 1872 (for brevity, ''1872 Act'') , the birth certificates Exs.P-4 and P-21 are admissible pieces of evidence and could not be discarded. Both the documents proved the fact that the plaintiff-appellant is the son of difendant-respondent, He has further submitted that even the documents Ex.P-5 could not be brushed aside because it contained an admission made by the defendant-respondents accepting that he had two sons which falsified the stand taken by him in the written statement that he was unmarried. In support of his submission, the learned counsel has placed reliance on a judgment of the Supreme Court in the cases of
8. Mr. H.S.Giani learned counsel for the defendant-respondents has vehemently argued that the findings recorded by both the Courts below would not warrant interference by this Court because it would amount to re-appreciating the evidence for arriving at a conclusion other than the one recorded by the Courts below. According to the learned counsel, such a course is not available in view of numerous judgments of the Supreme Court. He has'' further submitted that Ex.D-1 is a copy of the application for ration card which is verified by the village Sarpanch showing that Smt. Keshar was wife of one Phulia and Sher Singh plaintiff-appellant has been shown as son of Phulia. He has also referred to Ex.D-2 a copy of (he electoral roll of the year 1976, where the similar facts Have been receded, namely, that Smt. Keshar was wife of Phulia and Sher Singh was the son of Phulia. The learned counsel also made a reference to Ex.P-5 and argued that, by no stretch of imagination, it could be termed as an admission. He has maintained that statement Ex.P-5 has been made by Man son of Pat Ram son of Chuna while the defendant-respondent is in fact Man Singh son of Pat Ram son of Mathra. With regard to entries in Exs.P-4 and P-21 showing that defendant-respondent 1 is the father of one or the other child, the learned counsel has urged that such documents can be presumed to be correct in the absence of any evidence to the contrary. However, the documents Exs.P-1 and P-21 are based on the entries made by the village Chowkidar in his register which has not been produced. The village Chowkidar is ordinarily an illiterate man and his entry in the register cannot carry the presumption of truth as has been held by the Supreme Court in
9. The question which requires determination in the instant appeal is whether the entries in Exs.P-4 and P-21 have been effectively controverted by the overwhelming evidence produced on behalf of defendant-respondents. A perusal of the extracted paragraphs from the judgment of the Additional District Judge hereinabove shows that the entries in Exs.P-4 and P-21 have been effectively controverted by the evidence adduced on behalf of defendant-respondents in the form of Exs.D-1 and D-2 which are copies of the application for ration card and voters'' list. In both the documents, the plaintiff-appellant has been shown to be the son of Phulia with whom Smt. Keshar, the mother of the plaintiff-appellant is alleged to have performed a karewa marriage. Moreover, this is the case of the defendant-respondents in his written statement. It has further been proved that the plaintiff-appellant is the son of Phulia, as per the statements made by DW-1 to DW-4. The plaintiff-appellant Sher Singh has admitted that he alongwith his brother Bhagana and his mother have been living at Village Sia for the last over 37 years. No evidence has been produced showing that Smt. Keshar ever lived with defendant-respondent when the plaintiff-appellant could have been begotten. Therefore, even if an presumption was raised by birth certificates Exs.P-4 and P-21, the same has been effectively controverted.
10. The statement in document Ex.P-5 cannot be considered as admission because defendant-respondent Man Singh has firstly disputed that he has ever made this statement. Even if it is presumed that the statement has in fact been made by the defendant-respondents, it does not record an admission that Sher Singh and Bhagwana are admitted to be sons of Man Singh defendant-respondent. On the contrary in the cross-examination, it has been stated that Man Singh who made the statement has lost his wife 20-25 years back preceding the date of statement i.e., 31.3.1976, whereas Smt. Keshar was alive and she herself had appeared as PW-4 on 8.12.1978 i.e. after the statement made by the aforesaid alleged Man Singh. It is, therefore, not possible to accept the submission made by learned counsel for the plaintiff-appellant that Ex.P-5 should be accepted as admission. It is well known that an admission is a statement which suggests an inference to any fact in issue or a relevant fact if it is made under the specified circumstances as enumerated in Sections 18, 19 and 20 of 1872 Act. In the instant case, there is no admission by the defendant-respondents to the effect that Sher Singh and Bhagwana plaintiff-appellants are his sons or that Smt. Keshar is his wife. This is besides the fact that the maker of the statement Ex.P-5 itself is not proved to be the same person as defendant-respondent Man Singh. Therefore, I do not feel persuaded to take a view different than the one taken by the Courts below.
11. It is also settled that this Court u/s 100 of the Code cannot re-appreciate the evidence in order to reach a conclusion other than the one recorded by the Courts below merely because another view is possible. This view has been taken by the Supreme court in the case of
For the reasons recorded above, this appeal fails and the same is dismissed.
