Jharkhand High Court

Laljee Singh Son Of Late Karmu ... vs Bigu Singh Son Of Late Khelawan ... on 20 September, 2022

                                                                   Second Appeal No. 333 of 2002




IN THE HIGH COURT OF JHARKHAND AT RANCHI
                        S.A. No.333 of 2002
(Against the Judgment and decree dated 19.09.2002 passed by the learned
District Judge, Latehar in Title Appeal No.19 of 2001)
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Laljee Singh son of late Karmu Singh by caste Chero (Schedule Tribe), resident of village Chhencha, P.S. Barwadih, Dist. Palamau .... .... .... Appellant Versus

1. Bigu Singh son of late Khelawan Singh

2. Simanya Devi widow of late Sukhu Singh Both by caste Chero (Schedule Tribe), resident of village Chhencha, P.S. Barwadih, Dist. Palamau now Latehar

3. Deputy Commissioner, Palamau, now Latehar, At & P.O. Latehar, Dist. Latehar ... .... .... Respondents

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       For the Appellant        : Mr. Rajesh Kumar, Advocate
       For the Respondents      : None
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                                PRESENT
             HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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       By the Court:-     Heard the learned counsel for the appellant.

2. No one turns up on behalf of the respondents in-spite of

repeated calls though notices have validly been served upon the

respondents. Hence, this appeal is heard ex-parte against the respondents.

3. This second appeal has been preferred under Section 100 of

Code of Civil Procedure against the concurrent judgment and decree

dated 19.09.2002 passed by the learned District Judge, Latehar in Title

Appeal No.19 of 2001 whereby and where under, the learned first

appellate court has dismissed the appeal and did not interfere with the

judgment of dismissal of the suit passed by the learned trial court being

the court of Munsif, Latehar in Title Suit No.6 of 1998 dated 17.07.2001.

Second Appeal No. 333 of 2002

4. The case of the plaintiff in brief is that the suit land was

recorded in the name of Halkhori Singh and Dhani Singh. Dhani Singh

died issueless and his property devolved upon his brother Halkhori

Singh. Halkhori Singh has only a daughter namely Bhadwa Devi and no

son and the marriage of Bhadwa Devi was solemnized with Mori Singh

in gharjamai form of marriage. After death of Halkhori Singh, Bhadwa

Devi and Mori Singh inherited the suit land. Bhadwa Devi and Mori

Singh had no issue hence, they adopted the father of the plaintiff namely

Karmu Singh and after death of Bhadwa Devi and Mori Singh, Karmu

Singh became the absolute owner of the suit land and the plaintiff is the

son of Karmu Singh through his second wife Moharmani Devi and thus,

the plaintiff is entitled to the said suit land and he has been coming in

possession of the suit land. It is further the case of the plaintiff that when

the plaintiff was minor, the defendant and his brother namely Sukhu

Singh have wrongly and illegally succeeded in getting their names

entered in demand register II in respect of the suit land. The plaintiff had

no knowledge about the opening of the demand register in the name of

the defendant no.1 and after coming to know of the same, the plaintiff

filed a petition in the court of Additional Collector, Palamau on

03.07.1995 for cancellation of the demand by Misc. Case No.13 of 1995.

The Additional Collector, Palamau rejected the petition of the plaintiff.

The plaintiff filed an appeal in the court of Commissioner, Palamau

against the order of Additional Collector, Palamau vide S. Revenue

Appeal No.71/96 but on 12.12.97, the Commissioner, Palamau rejected

the petition of the plaintiff on the ground that Deputy Commissioner is

Second Appeal No. 333 of 2002

the competent authority for appeal and thereafter, the plaintiff filed an

appeal against the order of Additional Collector, Palamau in the court of

Deputy Commissioner, Palamau on 08.07.98 but the Deputy

Commissioner, Palamau also rejected the petition of the plaintiff in

Appeal No.XV/46 of 1998. The plaintiff filed the suit with the following

reliefs:-

(a) That the title of the plaintiff over the suit land be declared,

(b) That the plaintiff be put in possession over the suit land by the

process of the court by evicting the defendant and be also declared

to be in possession over the suit land and in case of his being

found to have been illegally dispossessed be put in possession,

(c) Cost of suit and

(d) any other reliefs or relief.

5. The defendant challenged the maintainability of the suit on

various technical grounds including limitation and non-joinder of

necessary party. It is the case of the defendant that the suit land was

recorded in the name of Halkhori Singh and Ramdhari Singh son of

Chamar Singh. Halkhori Singh and Ramdhari Singh died issueless. They

have two sisters namely Bhadwa Devi and Fulkuari Devi. After death of

recorded tenants, the mother of recorded tenant namely Bhadwa Devi

married Mori Singh in ghardamad form of marriage and after one year

Fulkuari Devi also married with Khelawan Singh in ghardamad form of

marriage. Mori Singh died issueless and the full ownership of the suit

land devolved upon the Khelawan Singh. Khelawan Singh died leaving

behind his sons being the defendant no.1 and his brother Sukhu Singh

Second Appeal No. 333 of 2002

whose wife is defendant no.2. The defendant denied that Bhadwa Devi

and Mori Singh ever adopted Karmu Singh as their son. The defendant

specifically pleaded that the plaintiff is not the son of Karmu Singh rather

the plaintiff is the son of Balchand Singh and the plaintiff is in no way

concerned with the suit land; as the defendant has legally inherited the

suit land by way of succession and the revenue authority has legally

opened demand in the name of the defendant.

6. On the basis of rival pleadings of the parties, the learned

trial court settled the following seven issues:-

(i) Whether the suit as framed is maintainable?

(ii) Whether the plaintiff has got valid cause of action for the suit?

(iii) Whether the suit is bad for misjoinder and non joinder of

parties?

(iv) Whether the suit is barred by law of limitation, waiver,

estoppel and acquiescence?

(v) Whether the plaintiff has got title over the suit land?

(vi) Whether the plaintiff is entitled for a decree of recovery of

possession?

(vii) Whether the plaintiff is entitled for a decree as prayed for by

him?

7. The learned trial court first took up issue nos. v and vi

together and after considering the evidence in the record came to the

conclusion that the plaintiff failed to prove the title over the suit land and

is not entitled for recovery of the possession of the suit land. Thus,

decided the said issues against the plaintiff. Thereafter, the learned trial

Second Appeal No. 333 of 2002

court took up issue nos. iii and iv together and observed that the same

was not pressed by either sides but returned a finding that there is no

defect in the suit for mis-joinder nor non-joinder of parties or for that

matter of law of limitation, waiver, estoppel and acquiescence. The

learned trial court then took up issue nos. i and ii together and on the

basis of the discussions made came to the conclusion that the plaintiff has

got no valid cause of action for the suit and the suit as framed is not

maintainable and decided the issues against the plaintiff. The learned

trial court lastly took up issue no. vii and came to the conclusion that the

plaintiff is not entitled to the decree as prayed for and dismissed the suit

with costs on contest.

8. Being aggrieved by the judgment and decree passed by the

learned trial court, the plaintiff-appellant filed Title Appeal No.19 of 2001

in the court of District Judge, Latehar and the same was ultimately heard

and disposed of by the learned first appellate court being the District

Judge, Latehar by the impugned judgment and decree.

9. The learned first appellate court framed the sole point for

determination as under :-

"Whether the judgment and decree passed by the learned

lower court is sustainable in law or not?"

10. The learned first appellate court considered that the plaintiff

has not filed any documentary evidence to show that he is the heir of the

recorded tenant Halkhori Singh and Dhani Singh but the evidence being

filed as Ext. C which is the certified copy of the mutation order of

Mutation Case No.9/80-81 in which the plaintiff has been described as

Second Appeal No. 333 of 2002

the son of Balchand Singh and such description has been given on the

basis of the petition filed by the plaintiff on 19.08.80 of land of khata

nos.41, 51, 132 of village Chhechha. The learned first appellate court also

considered that the plaintiff has not produced any witness to show that

his parentage has been wrongly written in the Ext. C and thus, the

plaintiff is a stranger to the family of the recorded tenant whereas the

document filed by the defendants shows that the defendants are the heirs

of the recorded tenant and the name of the defendants were mutated in

the year 1970-71 describing the defendants and his deceased brother

Sukhu Singh being the son of Ramkhelawan and in this respect, the

learned first appellate court referred to Ext. B which is the Malki Khatiyan,

Ext. B/1 and B/2 which are the revisional survey khatiyan in the name of

Sukhu Singh and Bigu Singh. The learned first appellate court also

considered Ext. E and E/1 which are the preliminary purcha in the name

of Sukhu Singh and Bigu Singh and basing upon such evidence, came to

the conclusion that the plaintiff is the stranger to the family of the

recorded tenant and is not the heir of the recorded tenant as the plaintiff

is the son of Balchand Singh and he has got no right, title and interest

over the suit land and dismissed the appeal and did not interfere with

the judgment of dismissal of the suit passed by the learned trial court.

11. At the time of Admission of this appeal vide order dated

21.07.2004, the following substantial question of law was formulated:-

"Whether the Courts below have committed serious errors

of law in not discussing the oral evidences adduced to prove

the relationship of the plaintiff with the recorded tenant and

Second Appeal No. 333 of 2002

for not considering the issue in terms of Section 50 of the

Evidence Act?"

12. Mr. Rajesh Kumar, learned counsel for the appellant submits

that both the courts below have given uncalled for emphasis over the

documentary evidence while neglecting the oral evidence put forth by

the parties and thus, failed to exercise the power vested upon them in an

illegal manner and hence, the judgments passed by both the courts below

are perverse having not considered the oral testimony put forth by the

plaintiff. Hence, it is submitted that the judgment and decree passed by

both the courts below be set aside and the suit of the plaintiff be decreed.

13. Having heard the submissions made at the Bar and after

going through the materials in the record, it is pertinent to mention here

that the essential requirements of Section 50 of Evidence Act 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;

As has been held by the Hon'ble Supreme Court of India in the

case of Dolgobinda Paricha vs Nimai Charan Misra and others reported

in AIR 1959 SC 914, paragraph no.6 of which reads as under :-

"6. We proceed to consider the second question first. The Evidence Act states that the expression "facts in issue" means and includes any fact from which either by itself or in connection with other facts the existence, non-existence, nature or extent of any

Second Appeal No. 333 of 2002

right, liability or disability asserted or denied in any suit or proceeding necessarily follow; "evidence" means and includes (1) all statements which the Court permits or requires to be made before it by witnesses in relation to matters of fact under enquiry;

and (2) all documents produced for the inspection of the Court. It further states that one fact is said to be relevant to another when the one is connected with the other in any one of the ways referred to in the provisions of the Evidence Act relating to the relevancy of facts. Section 5 of the Evidence Act lays down that evidence may be given in any suit or proceeding of the existence or non-existence of every, fact in issue and of such other facts as are declared to be relevant and of no others. It is in the context of these provisions of the Evidence Act that we have to consider S. 50 which occurs in Chapter II, headed "Of the Relevancy of Facts". Section 50, in so far as it is. relevant for our purpose, is in these terms :

"Section 50. 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 subject, is a relevant fact".

On a plain reading of the section it is quite clear that it deals with relevancy of a particular fact. It states in effect that 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 has special means of knowledge on the subject of that relationship is a relevant fact. The two illustrations appended to the section clearly bring out the true scope and effect of the section. It appears to us that the essential requirements of the section 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; in other words, the person must fulfil the condition laid down in the latter part of the section. If the person fulfils that condition, then what is relevant is his opinion expressed by conduct. Opinion means something more than mere retailing of gossip or of hearsay; it means judgment or belief, that is, a belief or a conviction resulting from what one thinks on a particular question. Now, the "belief" or conviction may manifest itself in conduct or behaviour which indicates the existence of the belief or opinion. What the section says is that such conduct or outward behaviour as evidence of the opinion held is relevant and may, therefore, be proved. We are of the view that the true scope and effect of section 50 of the Evidence Act has been correctly and succinctly put in the following observations made in Chandu Lal Agarwala v. Khalilar Rahman, ILR (1942) 2 Cal 299 at p. 309 : (AIR 1943 Cal 76 at p. 80).

''It is only 'opinion' is expressed by conduct which is made relevant. This is how the conduct comes in. The offered item of evidence is 'the conduct', but what is made admissible in evidence is the opinion, the opinion as expressed by such conduct. The

Second Appeal No. 333 of 2002

offered item of evidence thus only moves the Court to an intermediate decision : its immediate effect is only to move the Court to see if this conduct establishes any 'opinion' of the person, whose conduct is in evidence, as to the relationship in question. In order to enable the Court to infer 'the opinion', the conduct must be of a tenor which cannot well be supposed to have been willed without the inner existence of the 'opinion'.

When the conduct is of such a tenor, the Court only gets to a relevant piece of evidence, namely, 'the opinion of a person'. It still remains for the Court to weigh such evidence and come to its own opinion as to the 'factum probandum'- as to the relationship in question."

We also accept as correct the view that S. 50 does not make evidence of mere general reputation (without conduct) admissible as proof of relationship : 'Lakshmi Reddi v. Venkata Reddi, AIR 1937 PC 201." (Emphasis supplied)

14. Now coming to the facts of the case, out of the six witnesses

examined by the plaintiff, none of them have claimed that they are the

family members of either of the parties nor they have stated that they

have any special means of knowledge on the particular subject of

relationship between the plaintiff and his ancestor. Except P.W.5 who is

the plaintiff itself and P.W.6- Kuldeep Singh who is a formal witness who

has identified the signature of the plaintiff over the verification of the

plaint, the rest of the witnesses being P.Ws.1 to 4 have only stated about

their knowledge about the suit land.

15. Under such circumstances, this Court is of the considered

view that as the witnesses examined by the plaintiff were neither the

family members nor have any special means of knowledge on the

particular subject of relationship between the plaintiff and his ancestor.

Thus their evidence cannot be brought within the scope of Section 50 of

Evidence Act, 1872. It is a settled principle of law as has been held by the

Hon'ble Supreme Court of India in the case of Mahant Bhagwan Bhagat

v. G.N. Bhagat & Ors. reported in (1972) 1 SCC 486, paragraph no.9 of

Second Appeal No. 333 of 2002

which reads as under :-

"9. Admittedly Turki was a mourasi mutt. The evidence as to custom adduced in the case is both documentary and oral. The oral evidence which will be noted hereafter is discrepant and mostly of persons who were not disinterested. The documentary evidence undoubtedly furnishes more reliable testimony being ante litem motem and brought into existence at a time when the plaintiff was not on the scene and when no dispute as to succession to mahantship was raging." (Emphasis supplied)

That documentary evidence undoubtedly furnishes more

reliable testimony being ante litem motam. As ante litem motam

means spoken before a lawsuit is brought. In this case, Ext. C is the

document which is 18 years prior to filing of the suit by the plaintiff. So

no error has been committed by the courts below in relying upon the

document which was prepared eighteen years, prior to the filing of the

suit in preference to the oral testimony which were discrepant and were

of the persons who were not disinterested.

16. Under such circumstances, this Court is of the considered

view that in view of the discussions made above, the courts below have

not committed any serious error of law in not discussing the oral

evidences adduced to prove the relationship of the plaintiff with the

recorded tenant nor in considering the issue in terms of Section 50 of the

Evidence Act as the witnesses examined by the plaintiff were neither the

family members nor have any special means of knowledge on the

particular subject of relationship between the plaintiff and his ancestor,

to bring their evidence within the scope of Section 50 of Evidence Act,

1872. The sole substantial question of law is answered in the negative.

17. In view of the discussions made above, this Court is of the

considered view that there is no merit in this appeal. Accordingly, the