Surekha vs The Registrar Births And Deaths ...
2021 Latest Caselaw 3777 HP

          IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                   ON THE 9TH DAY OF AUGUST, 2021

                               BEFORE




                                                           .
                HON'BLE MR. JUSTICE SANDEEP SHARMA





                REGULAR SECOND APPEAL NO. 36 OF 2021





    Between:-

    SUREKHA
    DAUGHTER OF SH. HAZARI LAL,
    RESIDENT OF VILLAGE JANKAUR,





    TEHSIL AND DISTRICT UNA (HP)
    AT PRESENT
    WIFE OF AMARJIT SINGH,
    HOUSE NO. B-24/MCH GOVIND NAGAR
    HOSIHARPUR,

    (PB)

                                                        ... APPELLANT
    (BY MR. SANJEEV KUMAR SURI, ADVOCATE)

    AND



    1.     THE REGISTRAR, BIRTHS AND DEATHS
           (CHIEF MEDICAL OFFICER), UNA,
           DISTRICT UNA, (HP)




    2.     GRAM PANCHAYAT
           VILLAGE JANKAUR,





           TEHSIL AND DISTRICT UNA (HP)
           THROUGH ITS PRADHAN
                                                   .. RESPONDENTS





    (BY MR. SUDHIR BHATNAGAR AND
    MR. DESH RAJ THAKUR,
    ADDITIONAL ADVOCATES GENERAL
    WITH MR. R.P. SINGH
    AND MR. NARINDER THAKUR,
    DEPUTY ADVOCATES GENERAL, FOR R-1

    NEMO FOR R-2)




                                          ::: Downloaded on - 31/01/2022 22:50:47 :::CIS
                                            2



        This appeal coming on for orders this day, the court passed the

                                      following:




                                                                       .
                                 JUDGMENT

Instant Regular Second Appeal filed under S.100 CPC,

lays challenge to judgment and decree 4.10.2019 passed by learned

Additional District Judge-II, Una, in Civil Appeal No. 42 of 2019,

affirming judgment and decree dated 1.3.2019 passed by learned

Senior Civil Judge, Una, Himachal Pradesh in Civil Suit RBT No.

361/18/2016 titled Surekha vs. The Registrar Births and Deaths (Chief

Medical Officer) and others, whereby suit for declaration filed by the

appellant-plaintiff (hereinafter, 'plaintiff') that her date of birth is

30.12.1983 and not 23.1.1983, came to be dismissed.

2. Precisely, the facts as emerge from record are that the

plaintiff filed a suit for declaration seeking declaration to the effect that

her date of birth is 30.12.1983. Plaintiff averred in the plaint that she

was born at village Jankaur, Tehsil and District Una and in all her

documents i.e. matriculation certificate, Aadhar, PAN, Driving Licence

Voter Card and Passport, her date of birth has been shown to be

30.12.1983. She also averred in the plaint that at present, she is

employee of Punjab Government and Government of Punjab has issued

instructions to verify dates of birth of their employees form the place of

birth, from respective local Registrar (Births and Deaths)-cum-

Secretary, Gram Panchayat. After having received aforesaid

instructions/orders from the Punjab Government, plaintiff approached

Local Registrar Births and Deaths-cum-Secretary, Gram Panchayat,

.

Jankaur, where it transpired that her date of birth has been wrongly

recorded as 23.1.1983 instead of 30.12.1983. Plaintiff averred in the

plaint that the defendants have made wrong entry of her date of birth

and if same is continued, she will lose one year of her service and she

will suffer huge financial loss. Since defendants despite repeated

requests of the plaintiff, failed to correct her date of birth, she had no

option but to file the suit at hand.

3. Aforesaid suit having been filed by the plaintiff came to be

resisted on behalf of defendant No.1, who by way of written statement

took preliminary objections of cause of action, estoppel, valuation, non-

joinder and mis-joinder of parties. Defendant No.1 though specifically

admitted that the plaintiff was born in village Jankaur but stated before

learned court below that as per record of Gram Panchayat, date of birth

of the plaintiff is 23.1.1983 and names of her father and mother have

been recorded as Khushi Ram and Salochana Devi, respectively in the

records of the Gram Panchayat. Defendant No.1 also stated before

court below that record of the Gram Panchayat is conclusive proof of

the date of birth of the plaintiff and it cannot be altered as per

Registration of Births and Deaths Act, 1969. Besides above, defendant

No.1 also averred in the written statement that the birth certificate was

issued to Smt. Salochana i.e. mother of the plaintiff on 15.2.1995 under

her signature as is apparent from the birth register of Gram Panchayat,

Jankaur. Besides above, defendant No.1 claimed before learned court

.

below that otherwise it is not possible to record date of birth of an

unborn child i.e. 11 months prior to her birth, as such, plaint being

devoid of merit deserves to be rejected.

4. Record, reveals that though initially defendant No.2 put in

appearance before learned trial Court but subsequently chose not to

appear and was proceeded against ex parte.

5. On the basis of pleading, following issues came to be

framed by learned court below:

"1. Whether the plaintiff is entitled to the declaration, as sought? OPP

2. Whether in consequential the plaintive is entitled for decree

of mandatory injunction, as prayed for? OPP

3. Whether the plaintiff has no cause of action to file the present suit, as alleged? OPD

4. Whether the suit of the plaintiff is not maintainable in its

present form, as alleged? OPD

5. Whether the plaintiff is estopped to file the present suit by

his own act and conduct, as alleged? OPD

6. Whether the suit is time barred, as alleged? OPD

7. Whether the suit is bad for non-joinder, and mis-joinder of necessary parties, as alleged? OPD

8. Relief."

6. Plaintiff with a view to prove her case, besides examining

herself as PW-1, examined her mother Salochana Devi as PW-2. In

addition to aforesaid oral evidence, she also placed on record copies of

.

certificates of Matriculation, Aadhar Card, PAN Card, Identity Card,

Driving Licence, Voter Card, Passport, Marriage Certificate and Birth

certificates and same came to be exhibited as Exhibits P-1 to P-9.

Defendant examined one Dr. Nikhil Sharma, as DW-1.

7. Learned trial Court on the basis of pleadings as well as

evidence adduced on record by respective parties, dismissed the suit of

the plaintiff. Being aggrieved and dissatisfied with judgment and decree

dated 1.3.2019, passed by learned trial Court, dismissing suit of the

plaintiff, plaintiff filed an appeal under S.96 CPC, before learned

Additional District Judge-II, Una, Himachal Pradesh, which also came to

be dismissed vide judgment and decree dated 4.10.2019. In the

aforesaid background, plaintiff has approached this court in the instant

proceedings, praying therein to decree her suit after setting aside

impugned judgments and decrees.

8. Since defendant No.2 failed to put in appearance despite

service, it was ordered to be proceeded against ex parte in the instant

proceedings.

9. Having heard learned counsel for the parties and perused

the material available on record, vis-à-vis the findings returned by

learned courts below while dismissing suit for declaration having been

filed by plaintiff, this court finds no force in the submission made by

learned counsel for the plaintiff that learned courts below have failed to

appreciate the evidence in its right perspective, as a consequence of

.

which findings to the detriment of plaintiff have come on record, rather,

this court finds that the impugned judgments and decrees passed by

learned Courts below are based upon proper appreciation of evidence

as well as pleadings of the parties and as such, no interference is called

for. This court also finds that though factum with regard to recording of

date of birth in the Gram Panchayat record, as 23.1.1983 had come to

the notice of the plaintiff in 1995 but yet she waited to file suit seeking

declaration that her actual date of birth is 30.12.1983, for more than

twenty one years. There is no plausible explanation rendered on record

by the plaintiff qua inordinate delay of twenty one years in maintaining

the suit. The best possible explanation rendered on record qua delay is

that the factum with regard to wrong entry of date of birth in Gram

Panchayat record, came to the knowledge of the mother of the plaintiff

in the year 1995, not in the knowledge of the plaintiff but such plea

cannot be accepted on the face of it, because, the plaintiff herself in her

plaint claimed that she after having received instructions from

Government of Punjab contacted Gram Panchayat Jankaur for birth

certificate and then came to know that her date of birth has been

wrongly recorded as 23.1.1983 in place of 30.12.1983.

10. Careful perusal of documentary evidence led on record i.e.

matriculation, Adhar card, PAN Card, driving licence, Voter Card and

Passport reveals that date of birth of the plaintiff has been recorded as

.

30.12.1983 on the aforesaid documents but date of birth of the plaintiff

has been shown to be 23.1.1983 in the certificate issued by Health and

Family Welfare Department, i.e. Exhibit P9. Plaintiff while appearing as

PW-1, tendered /proved her affidavit by way of examination-in-chief,

wherein she reiterated the facts as put forth in the plaint, and deposed

that her date of birth is 30.12.1983 and same has been wrongly

recorded as 23.11983. In her cross-examination she admitted that the

date of birth is taken from Gram Panchayat. Plaintiff also deposed that

her date of birth has been recorded by her mother.

11. PW-2 Smt. Salochana also tendered /proved her affidavit

by way of examination-in-chief and stated that the date of birth of her

daughter was recorded as 23.1.1983 in place of 30.12.1983. In her

cross-examination she deposed that she does not remember when her

marriage was solemnised, but herself stated that the marriage was

solemnised 36-37 years ago. This witness also stated that she got

recorded date of birth of her daughter as 30.12.1983 in the School

without supplying any document.

12. DW-1, Dr. Nikhil Sharma who tendered/proved his affidavit,

DW-1/A deposed that the date of birth of Surekha has been mentioned

as 23.1.1983 in the records. He also stated that the date of birth of the

plaintiff Surekha has entered in the record on the basis of birth register,

maintained in the Gram Panchayat. This witness also stated that the

plaintiff was having knowledge of her date of birth i.e. 23.1.1983

.

because at the time of admission in the school, birth certificate might

have been supplied in the school. In his cross-examination, this witness

stated that the birth certificates of children born in the village are based

on local Birth & Death Register. Cross-examination conducted on this

witness nowhere suggests that the plaintiff was able to extract anything

contrary to what this witness stated in his examination-in-chief.

13. Shri Sanjeev Suri, learned counsel for the plaintiff, while

inviting attention of this court to documentary evidence, led on record

vehemently argued that since in all the material documents, date of birth

of the plaintiff has been recorded as 30.12.1983, it can be safely

presumed that same has wrongly been recorded as 23.1.1983 in the

Panchayat record. However, learned counsel for the plaintiff was unable

to explain that on what basis date of birth came to be recorded as

30.12.1983 in the school record. This court cannot lose sight of the fact

that at the time of admission in school, date of birth certificate issued by

Gram Panchayat/Municipal Council/Councilor and Hospital

Administration is required to be produced.

14. As stated by DW-1, date of birth of a person is entered on

the basis of record of birth of child. In the case at hand, careful perusal

of Exhibit P-9 clearly suggests that the date of birth of the plaintiff

stands recorded as 23.1.1983 in the record maintained under

Registration of Births and Deaths Act, 1969, which was recorded on the

basis of information passed by Gram Panchayat after birth of plaintiff.

.

15. Shri Suri, learned Counsel appearing for the plaintiff, while

referring to statement of DW-1, vehemently argued that since the

department had no objection in allowing the prayer made on behalf of

plaintiff for correction of date of birth, court below ought to have decreed

her suit. However, aforesaid submission made on behalf of learned

counsel for the plaintiff deserves outright rejection being totally devoid

of merit. Once this court is of definite view that date of birth of a person

is entered in record of births and deaths on the basis of information

given by Gram Panchayat on the basis of record, date of birth recorded

as 23.1.1983, cannot be said to be wrong. Concession, if any, given by

DW-1 is of no relevance.

16. Cross-examination conducted upon PW-2 Salochana,, who

happens to be mother of plaintiff, clearly reveals that she had herself

got recorded date of birth of the plaintiff in school as 30.12.1983 instead

of 23.1.1983. It is none of the case of plaintiff that Gram Panchayat as

well as office of Registrar, Births and Deaths wrongly entered the date

of birth of the plaintiff as 23.1.1983 instead of 30.12.1983, rather, the

specific claim is that she was born on 23.1.1983 but evidence qua

aforesaid claim is totally lacking in the instant case, rather, there is

overwhelming evidence suggestive of the fact that mother of the

petitioner after birth of the plaintiff recorded her date of birth as

23.1.1983 in Gram Panchayat and 30.12.1983 in the school at the time

of admission of plaintiff.

.

17. Interestingly, in the case at hand, plaintiff with a view to

prove that her date of birth has been wrongly entered in records of

births and death, failed to summon record of Births and Deaths

maintained by Gram Panchayat concerned. Moreover, there is no

specific pleading that how date of birth came to be recorded as

23.1.1983 in place of 30.12.1983 in the birth certificate. Bare perusal of

Ext. P-9 issued on 15.2.1995 shows that plaintiff had knowledge since

15.2.1995 that her date of birth is recorded as 23.1.1983 but yet she

remained silent for the next twenty one years.

18. DW-1/A shows that the mother of the plaintiff procured

certificate on 15.2.1995 and as such, learned courts below rightly drew

adverse inference against the plaintiff, while rejecting the suit of the

plaintiff. Since with the aforesaid correction, if allowed, plaintiff was to

gain one more year in Government service, it cannot be accepted that

the factum with regard to wrong entry made in Gram Panchayat record

was not in her knowledge.

19. Leaving everything aide, this court having considered

evidence and pleadings adduced on record, vis-à-vis impugned

judgments and decrees passed by learned courts below, finds no

question of law, much less substantial involved in the instant case for

determination of this court in exercise of power under S.100 CPC.

20. Now, it would be appropriate to deal with the specific

.

objection raised by the learned counsel representing the defendants

with regard to maintainability and jurisdiction of this Court, while

examining concurrent findings of law and facts returned by both the

Courts below. Learned counsel for the defendants, invited the attention

of this Court to the judgment passed by Hon'ble Apex Court in

Laxmidevamma and Others vs. Ranganath and Others, (2015)4

SCC 264, wherein the Hon'ble Supreme Court has held:

"16. Based on oral and documentary evidence, both the

courts below have recorded concurrent findings of fact that the plaintiffs have established their right in A schedule property. In the light of the concurrent findings of fact, no substantial questions of law arose in the High Court and

there was no substantial ground for reappreciation of evidence. While so, the High Court proceeded to observe

that the first plaintiff has earmarked the A schedule property for road and that she could not have full-fledged

right and on that premise proceeded to hold that declaration to the plaintiffs' right cannot be granted. In

exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In our considered view, the High Court did not keep in view that the concurrent findings recorded by the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained." (p.269)

21. Perusal of the judgment, referred hereinabove, suggests

that in exercise of jurisdiction under Section 100 CPC, concurrent

.

findings of fact cannot be upset by the High Court unless the findings so

recorded are shown to be perverse. There can be no quarrel (dispute)

with regard to aforesaid observation made by the Apex Court and true it

is that in normal circumstances High Court, while exercising powers

under Section 100 CPC, is restrained from re-appreciating the evidence

available on record.

22. The Hon'ble Apex Court in Parminder Singh versus

Gurpreet Singh, Civil Appeal No. 3612 of 2009, decided on 25.7.2017,

has held as under:

"14) In our considered opinion, the findings recorded by the three courts on facts, which are based on appreciation of

evidence undertaken by the three Courts, are essentially in the nature of concurrent findings of fact and, therefore,

such findings are binding on this Court. Indeed, such findings were equally binding on the High Court while

hearing the second appeal."

23. It is quite apparent from aforesaid exposition of law that

concurrent findings of facts and law recorded by both the learned

Courts below can not be interfered with unless same are found to be

perverse to the extent that no judicial person could ever record such

findings. In the case at hand, as has been discussed in detail, there is

no perversity as such in the impugned judgments and decrees passed

by learned Courts below, rather same are based upon correct

appreciation of evidence as such, deserve to be upheld.

.

24. Consequently, in view of detailed discussion made herein

above, I find no merit in the appeal at hand, which is accordingly

dismissed. Judgments and decrees passed by both the learned Courts

below are upheld.

25. Pending applications, if any, are disposed of. Interim

directions, if any, are vacated..

                                                     (Sandeep Sharma),
                         r                                Judge

     August 9, 2021
        (vikrant)