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Anant Ram Vs. the State of Punjab - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 1051 of 1972
Judge
Reported inAIR1975P& H198
ActsCode of Civil Procedure (CPC) , 1908 - Sections 100; Evidence Act, 1872 - Sections 35; Indian Penal Code (IPC) - Sections 21(9)
AppellantAnant Ram
RespondentThe State of Punjab
Appellant Advocate I.B. Bhandari, Adv.
Respondent Advocate S.K. Syal, Adv.
DispositionAppeal dismissed
Cases Referred and Brii Mohan Singh v. Priva Brat Narain Sinha.
Excerpt:
.....in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - after considering the oral and documentary evidence of the parties, came to the conclusion that the dlaintiff failed to prove that his date of birth was 13-4-1971 bk. the learned additional district judge, after considering the oral and documentary evidence of the parties, decided that the plaintiff failed to prove that his date of birth was 13-4-1971 bk. 5. even otherwise, there is no force in this appeal and it must fail. patiala, has not been produced for reasons best known to the plaintiff. 7. it is well settled law that the entries in..........the service or pav of government. therefore, an employee in a school other than a government or a state school is not a public servant and anv entry in its register made by him is not one made in a public or official register by a public servant in the discharge of his official duties and consequently the entries in the registers of schools other than government or state schools are not admissible in evidence under section 35 of the act, vide hoak saing v. ma e hla. air 1940 ranp 191 admittedly, the s. d. s. e. higher secondary school, patiala. is not a government or a state school and, therefore, the copy exhibit p-l. of the entry in the register of that school and the school leaving certificate. exhibit p-12, are not admissible in evidence under section 35 of the evidence act.7. it is.....
Judgment:

Pritam Singh Pattar, J.

1. This is a regular second appeal filed by Anant Ram plaintiff, against the judgment dated February 22. 1972. of the Additional District Judge. Patiala. whereby he accepted the appeal of the defendant-State of Punjab and set aside the decree of the trial Court and dismissed the suit of the plaintiff. Anant Ram.

2. The facts of this case are that the plaintiff ioined service as Patwari in the Revenue Department of the erstwhile State of Patiala and in his service book his date of birth was entered as 15-12-1967 Bk. On attaining the age of superannuation, he retired from service as Kanungo on 28-3-1969. According to the plaintiff his actual date of birth is 13-4-1971 Bk. It is alleged that he made several representations to the authorities concerned to correct the mistake in the service records about his date of birth, but the same were reiected. The plaintiff, therefore, filed suit for declaration that his date of birth is 13-4-1971 Bk.. and that the date of birth entered in the service book is incorrect. The defendant-Punjab State contested the suit. It was alleged that the plaintiff made an application for the first time on 30-1-1969 for the correction of his date of birth and the same was reiected. It was also pleaded that this suit is not maintainable, that the matter in dispute is not justiciable in a Court of law and the Civil Court has no jurisdiction to try this suit. On these pleadings of the parties, the following issues were framed by the Subordinate Judge;--

1. Whether the date of birth of the plaintiff is 13-4-1971 Bk. ?

2. Whether the suit is not maintainable ?

3. Whether the matter in dispute is not justiciable ?

4. Whether the Civil Court has no jurisdiction to try the suit ?

5. Relief.

The Subordinate Judse decided issue No. 1 in favour of the plaintiff while issues Nos. 2. 3 and 4 were decided against the defendant. As a result, decree for declaration as prayed for in the plaint was passed in favour of the plaintiff against the defendant. Feeling aggrieved, the defendant-State of Puniab filed an appeal against this decree in the Court of the District Judge. The Additional District Judge, Patiala. who decided this appeal, reversed the decision of the trial Court on issue No. 1 and he accepted the appeal, set aside the decree of the trial Court and dismissed the suit of the plaintiff, leaving the parties to bear their own costs. Thereafter. Anant Ram. plaintiff, filed this regular second appeal.

3. The decision on issues Nos. 2. 3 and 4 was not contested by the counsel for either party to the appeal. The counsel for the appellant contested the decision of the lower appellate Court on issue No. 1 only.

4. The learned counsel for the respondent-State of Puniab raised an objection that the learned Additional District Judge, Patiala. after considering the oral and documentary evidence of the parties, came to the conclusion that the Dlaintiff failed to prove that his date of birth was 13-4-1971 Bk. and this finding cannot be disturbed in second appeal. In support of this contention. he relied on Deity Pattabhiramaswamy v. S. Hanvmavva. AIR 1959 SC 57. wherein it was held as under:--

'The provisions of Section 100 are clear and unambiguous. There is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fad. however gross the error may seem to be. Nor does the fact that the finding of the first appellate Court is based upon some documentary evidence make it anv less a finding of fact. A Judge of the High Court has. therefore, no Jurisdiction to interfere in second appeal with thefindings of fact given by the first appellate Court based upon an appreciation of the relevant evidence.'

To the same effect was the law laid down in V. Ramachandra Avvar v. Rama-lingam Chettiar. AIR 1963 SC 302. It was further held in the latter case that the High Court cannot interfere with the conclusions of fact recorded by the lower appellate Court, however erroneous the said conclusions may appear to be to the Court. This objection is correct and must prevail. The learned Additional District Judge, after considering the oral and documentary evidence of the parties, decided that the plaintiff failed to prove that his date of birth was 13-4-1971 Bk. and this finding is based on evidence and, therefore, it cannot be disturbed in second appeal and the appeal is liable to be dismissed on this ground.

5. Even otherwise, there is no force in this appeal and it must fail. Admittedly, the date of birth o the appeal-lant as recorded in the official records is 15-12-1967 Bk.. which is equivalent to 28-3-1910, His case is that his date of birth is 13-4-1971 Bk., which is equivalent to 28-7-1914. To prove his allegations, the plaintiff produced oral and documentary evidence. Anant Ram. plaintiff, as P. W. 6. reiterated the allegations made by him in the plaint. He stated that his family members used to reside at Bahadurgarh fort. District Patiala. and in the year 1947, they shifted to Patiala. He stated that his date of birth is 13-4-1971 Bk. To the same effect are the statements of his brother Kha-raiti Lal, P. W. 3. Bal Krishan. P. W. 4. who is uncle of his wife, and Norata Ram. P. W. 5 who is his maternal uncle.

There is no evidence on the file to show at what place Anant Ram. plaintiff, was born. The copy of the entry about his date of birth from the register of the village Chaukidar or from the office of the Chief Medical Officer. Patiala, has not been produced for reasons best known to the plaintiff. He simply produced Exhibit P-4. which is an intimation received by him from the Chief Medical Officer, Patiala. stating that the information sought for in the application could not be supplied, as the record was not available: but no official nf the office of the Chief Medical Officer was examined on oath on this point. This memo Exhibit P-4 is dated 22-2-1969. The suit was filed on 20-1-1970, i.e., about 11 months after the receipt of the above-mentioned intimation Therefore, this Exhibit P-4 is of no help to the plaintiff. He should have examined some responsible official of the office of the Chief Medical Officer. Patiala. to state about the facts mentioned in Exhibit P-4. Moreover, there is no evidence on the file that at what place he was born. All these witnesses are near relatives of the plaintiff and their bald statements uncorroborated by any documentary evidence regarding his date of birth cannot be accepted to be correct and these were rightly discarded by the learned Additional District Judge.

6. Next, reliance was placed on the entries made in the registers of S. D. S. E. Higher Secondary School, Patiala. relating to his date of birth The plaintiff, joined sixth class in that school on 29-4-1986 Bk.. and his date of birth in the records of that school is entered as 13-4-1971 Bk. and the copy of the relevant entry in the registers of that school is Exhibit P-l. He left that school on 28-1-1988 Bk., when his name was struck off, due to his continuous absence, vide the school transfer certificate. Ex. P-2. There is no evidence pn the file tn show that who got him admitted in that school. The application made in the school for his admission has not been placed on the record.

Sohan Lal P. W. 1', who is a teacher of that school, simplv stated that his admission form is not available on the records of the school. He did not know who made entry in the register, copy of which is Exhibit P-l. A public servant Under Section 21(9V) Indian Penal Code is an officer in the service or Pav of Government. Therefore, an employee in a school other than a Government or a State school is not a public servant and anv entry in its register made by him is not one made in a Public or official register by a public servant in the discharge of his official duties and consequently the entries in the registers of schools other than Government or State schools are not admissible in evidence under Section 35 of the Act, vide Hoak Saing v. Ma E Hla. AIR 1940 Ranp 191 Admittedly, the S. D. S. E. Higher Secondary School, Patiala. is not a Government or a State school and, therefore, the copy Exhibit P-l. of the entry in the register of that school and the school leaving certificate. Exhibit P-12, are not admissible in evidence under Section 35 of the Evidence Act.

7. It is well settled law that the entries in school registers are of little value as evidence of age. The statement of age of a person in the school register, in the absence of evidence to show that on what material the entry in the register was made, has not much evidentiary value. It is a matter of common knowledge that the date of birth given at the time of admission of a boy or a girl in a school is seldom correct and authenticated date and more often than not the age given is less than the actual age of the child joining the school. In actual life it often happens that persons give false age of the bov at the time of his admission to a school so that later in life he would have an advantage when seeking public service for which a minimum aee for eligibility is often prescribed. The Court of fact cannot ignore this fact while asses-sine the value of the entrv and it would be improper for the Court to base anv conclusion on the basis of the entrv regarding the age in a school register --vide Lakshmi Narain v. The State, (1968) 70 Pun LR (SN) 31; Asa Nand v. Gian Chand. AIR 1936 Lah 598: Karam Singh v. The State. (1969) 71' Pun LR (SN) 21 and Brii Mohan Singh v. Priva Brat Narain Sinha. AIR 1965 SC 282.

In the instant case, there is no evidence on the file that in which school the appellant read UD to 5th class and what was the entry about his date of birth in that school. He joined S. D. S. E. Higher Secondary School. Patiala in the 6th Class. From the statement of Sohan Lal P. W. 1, it is not clear that when the appellant joined that school on 29-4-1986 Bk.. whether anv certificate of the previous school was presented and what was the date of birth mentioned in that certificate. He also did not state what was the date mentioned in the admission form of the appellant. He has not brought that admission form of the appellant. For all these reasons, it is held that in view of the law laid down in the above-mentioned cases. no reliance can be placed on the entries in Exhibits P-l and P-2 and the Additional District Judee rightly discarded these documents having no evidentiary value.

8. Next, reliance was placed on the tipra or teva, Exhibit P-2/A. alleged to have been prepared by Devi Daval. father of Krishan Dutt P. W. 2 of Patiala. Krishan Dutt P. W. 2 stated that his family is prohit of the family of the plaintiff appellant, that his father Shri Devi Dayal prepared the tipra or teva. Exhibit P-2/A. of the plaintiff and he identified the signatures and the handwriting of his father. Kharaiti Lal P. W. 3. Bal Krishan P. W. 4 and Norata Ram P. W. 5. who are relations of the plaintiff, have also deposed that Ex. P-2/A is the tipra or teva of the plaintiff and it was shown to the inlaws of the plaintiff at the time of his engagement. The paper, on which Exhibit P-2/A, is written, is not an old one. Exhibit P-2/A is not a regular horoscope and is a small tipra prepared, giving his alleged date of birth. This is not an authenticated document and could be forged at anv time. The learned Additional District Judee held that it seemed to have been prepared recently and no reliance could be placedupon it and this decision, in mv opinion, is correct.

9. For the reasons given above, it is held that there is no force in this appeal and the same is dismissed. There will be no order as to costs.


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