Chairman Cum Managing Director ... vs Ku. Jarina Begam
2022 Latest Caselaw 1334 Chatt

                                      1
                                                         FAM No. 88 of 2018

                                                                       NAFR

            HIGH COURT OF CHHATTISGARH, BILASPUR



                           FAM No. 88 of 2018

 (Arising out of the judgment and decree dated 7.2.2018 passed by the Judge,
  Family Court, Manendragarh District Korea (CG) in Civil Suit No.50-A/2017



   1. Chairman Cum Managing Director, S.E.C.L. Headquarter, Seepat
       Road, Bilaspur, Chhattisgarh

   2. Chief General Manager Chirmiri Area, S.E.C.L. Office- Malvir
       Nagar, Post West Chirmiri Colliery, District Koriya, Chhattisgarh

   3. Sub Area Manager, Chirmiri Open Caste Mines, S.E.C.L. Post
       Chirmiri, District Koriya, Chhattisgarh (Defendants)

                                                             ---- Petitioner

                                  Versus

    Ku. Jarina Begam D/o Late Jalil Khan Aged About 29 Years R/o
     Ward No.23, Kapoor Singh Dafai, Chhota Bazaar, Chirmiri,
     District Koriya, Chhattisgarh (Plaintiff)

                                                           ---- Respondent




For Appellants                     Mr. Sudhir Bajpayee, Advocate
For Respondent                     Mr. N. Naha Roy, Advocate



        DB.:            Hon'ble Mr. Justice Goutam Bhaduri &

                         Hon'ble Mr. Justice Deepak Kumar Tiwari



               Judgment on Board By Goutam Bhaduri, J.

FAM No. 88 of 2018

15/3/2022

1. Heard.

2. The challenge in this appeal is to the judgment and decree

dated 7.2.2018 passed in Civil Suit No.50-A/2017, whereby, a

declaratory decree was passed that Jarina Begam and Nazma

are one and the same person and Jarina Begam is the daughter

of late Jalil Khan. The present appeal is filed by the

appellants/SECL (defendants).

3. As per the facts stated in the pleadings, Jalil Khan was an

employee of respondent-SECL, working as E.P.G.H. in the

Chirmiri Opencast Mines. He died on 9.5.2015. According to the

plaintiff, apart from Jarina Begum (daughter of Jalil Khan), he

left behind three other daughters. The plaintiff pleaded that

her name is 'Jarina Begum', whereas, at home, she is called as

'Nazma'. The plaintiff stated that in the service book of SECL,

the name of the plaintiff was shown as Nazma. After the death

of Jalil Khan, when Zarina Begam applied for compassionate

appointment and an affidavit was also filed by her that she is

Jarina Begam @ Nazma and both names belong to her, she was

advised to get a declaration from Court by a letter of SECL

dated 25.7.2017 and her compassionate appointment

application was dismissed. Thereafter, a civil suit was filed. The

defendant-appellants herein contended that in the service book

of the SECL, the name of the plaintiff i.e. Jarina Begam is not

recorded as a dependent. Consequently, Jarina Begam is not

the daughter of Jalil Khan and further, Jarina Begam and

FAM No. 88 of 2018

Nazma are two different persons. The plaintiff on her behalf

examined herself as PW-1, her mother Nanhinisha as PW-2 and

one Francis Lakda, a person known to the plaintiff, as PW-3,

whereas, the appellant/defendants examined one Ravindra

Kumar Sathpute, Office Superintendent of Chirmiri Mines, on

their behalf. The Family Court after evaluating the entire

evidence and fact, passed a judgment and decree in favour of

the plaintiff/respondent herein. Hence, this appeal.

4. Learned counsel for the appellants would submit that the

documents filed by the plaintiff i.e. Ex.P/3 Primary School

Certificate, Ex.P/4 Middle School Certificate and Ex.P/5, High

School Certificate, show the date of birth of the plaintiff as

30.6.1988, which also matches to Ex.P-6 & 7 i.e. Aadhar Card and

Voter Identity Card issued by the Election Commission of India,

whereas, the document-Ex.D/2 ( LTC form) bears the signature

of deceased Jalil Khan and it shows the age of Jarina @ Nazma

Begam as 4 years as on 1/12/1983. He would also submit that

the name 'Nazma' has been recorded in the Service Book and

not 'Jarina Begam'. Consequently, the relation of the plaintiff

was not proved. One document i.e. a certificate styled and

captioned as 'Nasbandi Praman Patra', wherein, it is mentioned

that the deceased has one son and six daughters, also

contradicts the averments of the plaintiff and the same is also

recorded in the official record. Therefore, there is a serious

contradiction about the existence of Jarina Khan and the Court

below failed to consider this discrepancy and arrived at a wrong

FAM No. 88 of 2018

finding. Consequently, the finding arrived at by the Court below

is liable to be set-aside.

5. Per contra, learned counsel for the respondent/plaintiff would

submit that it has not been disputed that the plaintiff is the

daughter of Jalil Khan. It is further submitted that the plaintiff

made a statement that she is also called Nazma in her house,

therefore, simply because some LTC form was filled up by the

deceased-father, an inference cannot be drawn to wash away

the identity of the plaintiff. He also submits that the judgment

and decree passed by the Court below is well merited, which

does not require any interference.

6. We have heard learned counsel for the parties and perused the

record.

7. The short question which falls for consideration is whether the

declaration, for which the suit has been filed by the plaintiff,

that Jarina Begam and Nazma are one and the same person and

Jarina Begam is also known as 'Nazma', can be accepted or not.

8. The plaintiff examined herself as PW-1. In her statement, she

has categorically stated that in all her educational records, her

name is mentioned as Jarina Begam and at home, she is called

as Nazma. She also made statement that they are four sisters

and have no brother. It is also stated by her that after the

death of her father, when she applied for compassionate

appointment, she was not given the appointment for the reason

that the name which has been entered in the educational

FAM No. 88 of 2018

documents and the name which has been entered in the service

book of the Colliery, are different. She mentioned that Jarina

Begam and Nazma, both names belong to her.

9. Documents Ex.P/3 Primary School Certificate, Ex.P/4 Middle

School Certificate and Ex.P/5, High School Certificate, would

show that in all these documents, the name of plaintiff is shown

as Jarina Begam, daughter of Jalil Khan and not 'Nazma'. In the

Aadhar Card and the Election Card issued by the Election

Commission also, the plaintiff is shown as daughter of Jalil

Khan. While cross-examination of this witness, a suggestion was

given by the appellants that her name is 'Jarina Begam', which

she admits. She vehemently denied the fact that she is not the

daughter of Jalil Khan and stated that in the service record of

her father, she is a dependent and her name is recorded as

Nazma. In all the three documents i.e. Ex.P/5, which is the High

School Certificate, Ex.P/6, which is the Aadhar Card and Ex.P/7,

which is the Voter Identity Card, there contain photographs of

the plaintiff. We do not see any whisper in the cross-

examination, whereby, she was confronted with such

documents to deny the identity. When the witness herself was

in person and the various documents, which show the name of

her father as Jalil Khan, were accepted, and such documents

contain her photographs, it appears that the

appellants/defendants did not venture into such discovery,

inasmuch as, prima facie the documents show that Jarina Begam

is the daughter of Jalil Khan. In the cross-examination of PW-1

FAM No. 88 of 2018

(plaintiff Jarina Begam), one suggestion was also given that her

mother has not been made a party, whose name is Nanhinisha.

10. Nanhi Nisha has been examined as PW-2. She stated that Jarina

Begam is her daughter and her husband Jalil Khan was working

in Open Caste Chirmiri Colliery. She further stated that she has

four daughters, out of which, Jarina Begam is the youngest. Her

statement was recorded sometime in the year 2018. She

further stated that the educational documents would show the

name of the plaintiff as Jarina Begam and she is also called as

Nazma in the house. She also stated that her husband has

recorded the name 'Nazma' in the service record and by such

name, plaintiff Jarina Begam is being called in the house. In

cross-examination, she named her other daughters namely Rubi,

Subi, Shabnam and Nazma. She stated that Nazma is her fourth

daughter. She further showed her inability to express whether

the name of Jarina Begam was recorded by her husband in the

service record or not. In her cross-examination, nothing has

been explored by the appellant-SECL to doubt the authenticity

of her statement.

11. Learned counsel for the appellants have heavily relied on the

service record and the LTC Form marked as Ex.D/1 and Ex.D/2

respectively. To prove the said documents, DW-1 Ravindra

Kumar was examined. One entry in the service record, which

was relied on, was signed on 15.5.2006 and it records the

names of Jalil Khan, Nanhinisha, Subi Begam, Nazma and Sabana

Begam. Likewise, LTC form -Ex.D/2 records the names of Jalil

FAM No. 88 of 2018

Khan, Nanhinisha, Rubi Begam, Subi Begam and Nazma Begam.

These documents though have been proved by DW-1, but no

averments have been made in this regard. As against this, the

statement of mother Nanshinisha (PW-2) is on record, which is

supported by another witness PW-3 i.e. Francis Lakda, who also

supports the fact that plaintiff Jarina Begam is also known as

Nazma.

12. Section 50 of the Indian Evidence Act, 1872 (in short "the Act")

evaluate such evidence when is adduced about relationship of

the parties. For sake of brevity, Section 50 of the Act is

reproduced as under :

"50. Opinion on relationship, when relevant.- 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, or any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact :

Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Divorce Act, 1869 (4 of 1869) or in prosecution under sections 494, 495, 497 or 498 of the Indian Penal Code (45 of 1860)."

The section lays down that two things would be necessary to

make the evidence of a witness relevant under Section 50 of the

Act i.e. (i) the witnesses must have special knowledge with

FAM No. 88 of 2018

regard to the existence of disputed relationship either as a

member of a family or otherwise and (ii) the witnesses must

depose his own conduct towards the person whose relationship

is in dispute. The opinion can be therefore of a member of a

family or even an outsider but he must have special knowledge.

13. In the instant case, the mother (PW-2) has initially stated that

plaintiff Jarina Khan is her daughter and is also known as

Nazma. She further stated the names of her other daughters

also. Consequently, she being the mother, it can be presumed

that she has special means of knowledge about the relationship

and such opinion is expressed by the conduct, therefore, by

reading the statement of the mother, the Court would be within

its periphery to form an opinion about the relationship of one

person to other and the existence of such relationship.

14. Simply because of the fact that the service book has not been

filled up or the certificate of sterilization has not been filled up

by deceased Jalil Khan or the sterilization certificate issued is

proved by the respondent, the same will not suppress the

relationship to over reach the statement of PW-2 Nanhinisha

(mother) inter se the plaintiff.

15. In view of the foregoing, we are of the opinion that the

judgment and decree passed by the Family Court does not

require any interference.

16. Lastly, considering the subject issue, for which, the suit was filed

and to avoid further bout of litigation, we deem it appropriate

FAM No. 88 of 2018

to direct the SECL to consider the application for compassionate

appointment of the respondent/plaintiff objectively within a

period of 45 days from the date of receipt of copy of this

judgment.

17. Consequently, the appeal is dismissed. The appellants shall

bear the cost of litigation of the respondent. The decree be

drawn accordingly.

                Sd/-                                       Sd/-


         ( Goutam Bhaduri)                        ( Deepak Kumar Tiwari)
               Judge                                     Judge



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