1. This is a defendant's second appeal against whom suit for possession of the agricultural land was partly decreed by the trial Court and has been decreed in toto in appeal.
The undisputed facts are that by a registered sale-deed dated 13-11-1964 the land in dispute was sold for Rs. 50,000/- to Capt. Girdhari Lal and his wife Dhan Devi by the plaintiff Ashok Kumar as major and by his brother Anil Kumar (minor) through his mother Kamala Devi acting as his natural guardian. This sale was subsequently pre-empted by the defendant-appellants Sarwan Singh and others by reason of their being tenants of the suit land. Consequently in execution of the pre-emption decree they got its proprietary possession as well. The plaintiffs Ashok Kumar and Anil Kumar were also parties to the said pre-emption suit. The plaintiffs filed the present suit on the usual plea that they were minors at the time of the sale and that necessary permission by the mother Kamala Devi for effecting the sale of their property was not obtained from the Guardian Court according to law. It was alleged in the plaint that the plaintiff Ashok Kumar was born on 12-12-1948 whereas the date of birth of them were minor at the time of execution of the sale deed dated 13-11-1964. According to the plaintiffs the present suit was instituted within 3 yeas of their attaining majority. The suit was filed on 27-11-1969. In the plaint the pre-emption decree was also assailed, and it was pleaded that the same was not binding upon the plaintiffs. The suit was contested on behalf of the defendant-appellants. They controverted the allegations made in the plaint and claimed that before the execution of the impugned sale deed 7 day prior thereto, the land in question was mortgaged with the vendee Capt. Girdhari Lal for a period of 19 years at the instance of the vendors. It is emphasised that in the sale deed Ashok Kumar described himself as major and it was also recited that the requisite permission to sell out he property was obtained by Kamala Devi, their mother, to dispose of the share of other minor son Anil Kumar with the result that the alienation in question was fully binding on the rights of both plaintiffs Ashok Kumar and Anil Kumar. Plea regarding the bar of limitation was also raised and it was also alleged that the copies of the birth entries relating to Ashok Kumar and Anil Kumar obtained from the Municipal record, Batala were forged documents.
2. On the pleadings of the parties, the trial Court framed the following issues :--
1. Whether plaintiff No. 1 was a minor on 13-11-1964 if so what is its effect OPP
2. Whether Beli Ram s/o Mathra Dass is a necessary party? OPD (Onus objected to).
3. Whether the suit of the plaintiffs is time-barred OPD
4. Whether the sale in dispute was effected with the permission of the District Judge, Gurdaspur, if so, what is its effect? OPD
5. Whether the suit of the plaintiffs is collusive and has been brought for the benefit of Girdhari Lal vendee-defendant No. 1 OPD
Under issue No. 1 the trial Court found that Ashok Kumkar plaintiff has failed to prove that he was a minor on 13-11-1964 i.e. at the time of sale. Under issue No. 2 it was found that Beli Ram was not a necessary party, Under issue No. 3 the trial Court held that the suit of Ashok Kumar is barred by time but the suit of Anil Kumar was within limitation. Under issue No. 4 the trial Court concluded that the sale was made without the sanction of the Guardian Court. Under issue No. 5 it was found that the suit has not been brought in collusion with Girdhari Lal as alleged. In view of these findings, the suit of Anil Kumar plaintiff for possession of 1/2 share of property in dispute was decreed whereas the suit of Ashok Kumar plaintiff was dismissed. Dissatisfied with the same, both the parties filed separate appeals. The learned Additional District Judge set aside the finding of the trail Court under issue No. 1 affirmed the findings under other issues. Under these circumstances, the appeal filed on behalf of the defendants was dismissed whereas the appeal filed on behalf of the plaintiff Ashok Kumar was allowed and Consequently the suit was decreed in toto. Dissatisfied with the same, the defendants have come up in second appeal in this Court.
3. Learned counsel for the appellants contended that none of the plaintiffs came into the witness-box nor they produced their mother Kamala Devi in the witness-box as to prove the date of birth of both the plaintiffs. Under these circumstances it has not been proved that the birth entries. Ex. P-1 relates to Ashok Kumar wherein he has been shown to be born on 12-12-1948 and Ex. P-2 relates to Anil Kumar in which he is shown to have been born on 11-1-1950. Thus argued the learned counsel, in the absence of any such evidence it could not be held that both the plaintiffs were minor at the time of the execution of the sale deed on 13-11-1964. In respect of his contention he referred to Didar Singh Cheeda v. Sohan Singh Ram Singh, AIR 1966 Punj 282, Bansi Ram Naru Ram v. Jit Ram Gehru Ram, AIR 1964 Punj 231 and Hazara Singh v. Attar Kaur, AIR 1976 Punj & Har 24, Reference was also made to Sardar Gurbaksh Singh v. Gurdial Singh, AIR 1927 PC 230 and Lal Durga Bakhsh Singh v. Rani Brij Raj Kuar, AIR 1938 PC 40 to contend that adverse inference can be drawn against the plaintiffs as they failed to come into the witness-box. on the other hand, learned counsel for the plaintiff-respondents contended that the birth entries Exs. P-1 and P-2 being public documents were admissible per se in view of the provisions of sections 35 and 77 of the Evidence Act, and therefore, the lower appellate Court rightly came to the conclusion that the plaintiffs were minors at the time of the sale. In support of this contention he referred to Dalim Kumar Sain v. Smt. Nandarani Dassi, AIR 1970 Cal 292, Bishwanath Gosain v. Dulhin Lalmuni, AIR 1968 Pat 481, Mt. Anwari Jan. v. Baldua, AIR 1936 All 218 and Sham Lal v. Muni Lal, (1972) 74 Pun LR 67: (AIR 1972 Punj and Har 199). It was also contended that it was not necessary that the author of the entries in the Municipal records should have been produced to prove the same. In support of this contention, he referred to Bishwanath Gosain's case(supra). It was also argued that the defendant-appellants themselves examined the plaintiff Ashok Kumar and his mother Kamala Devi on commission by issuing interrogatories and therefore, it could not be said that they did not come in the witness box.
4. I have heard the learned counsel for the parties at length and have also gone through the relevant evidence on the record. As regards the proposition of law that the birth entries are admissible per se, is not disputed, as they are public documents as contemplated under Section 35 read with S. 77 of the Evidence Act. At the same time, it is also well settled that mere production of a copy of the birth entry would not, as a matter of law, connect the entry with the plaintiffs as held in Didar Singh Cheeda's case (AIR 1966 Punj 282)(supra). Surprisingly in the present case, even in the question suggested by way of cross-examined in the interrogatories issued to their mother and to Ashok Kumar, plaintiff, no such question was put to them with respect to the birth entries Exs. P-1 and P-2. As a matter of fact it was the duty of the plaintiffs to come in the witness box to prove the birth entries Exs. P-1 and P-2. When the plaintiffs failed to come in the witness box by themselves, the defendants moved an application dated 8-2-1971 in the trial Court under O. 26, R. 4, C.P.C. in which it was prayed that a commission may kindly be issued by the Court to examine Ashok Kumar and their mother Kamala Devi. Even at that stage the plaintiffs did not state that they themselves will appear in witness-box as their own witness, However, the Court allowed the said application and both these persons were examined on Commission by way of interrogatories. In the interrogatories drafted on behalf of the plaintiffs no question was put to Kamala Devi as to when the plaintiffs were born to her. Surprisingly enough, no such question was put to Ashok Kumar either, in this respect in the interrogatories framed by the plaintiffs. Under these circumstances, it is a case where there is absolutely no evidence on the record by virtue of which the birth entries Exs. P-1 and P-2 have been proved to relate to the plaintiffs. In the present case, it was all the more necessary to prove this fact because the defendants have brought on the record an application under Section 8 of the Hindu Minority and Guardianship Act, 1956, dated 19-5-1962 Ex. D-4 filed on behalf of Mrs. Kamala Devi, the mother of the plaintiffs. In that application she mentioned that Anil Kumar plaintiff was studying in 9th class whose date of birth was 27-11-1948 whereas according to the birth entry Ex. P-2, Anil Kumar plaintiff was said to be a student of Pre-Engineering class and his date of birth was given as 17-2-1946, whereas according to the birth entry Ex. P-1 Ashok Kumar was born on 12-12-1948. In view of these discrepancies in the dates of birth of both the plaintiffs, it was obligatory on the part of the plaintiffs to prove by legal and positive evidence that the birth entries Exs. P-1 and P-2 relate to them. Under these circumstances, their not coming into the witness-box in support of their case becomes very material and an adverse inference is to be drawn against them as held in Sardar Gurbakhsh Singh's case (AIR 1927 PC 230)(supra) and Lal Durga Bakhsh Singh's case (AIR 1938 PC 40)(supra). Moreover the matter does not stand concluded here. Both the parties obtained certified copy of the birth entry dated 11-1-1950 which is alleged to be of Anil Kumar, plaintiff. The copy obtained by the plaintiff is Ex. P-2, whereas the copy obtained by the defendants is Ex. D-1, Copy Exhibit D-1 was prepared on 19-1-1970 whereas the copy Ex. P-2 was prepared on 5-11-1969. In the copy Ex. P-2 the name of the boy born Anil Kumar is mentioned, whereas in the copy Ex. P-D1 there is no mention of any name. It is written in Col. No. 8 i.e. 'Child's name' illegible. This also creates a great suspicion as to whether the birth entry Ex. P-2 really relates to Anil Kumar or not. However, the plaintiffs examined Kanshi Lal, Secretary., Municipal Committee, Batala as D.W. 2 He had brought the original birth register for the year 1948. He has stated in examination-in-chief that in the entry No. 822 the copy Ex. P-1 the name of Ashok Kumar is written in some different ink from the rest of ink. He further stated that in the certified copy Ex. D-1 the entry Serial No. 41 in Col. No. 8 of this entry Serial No. 41 in Col. No. 8 of this child is not 'readable'. He has further stated that in the birth register the name of Anil Kumar is not mentioned in column No. 4 but it was mentioned in col. No. 9. In the original birth register col. No. 3 is sub-divided into two parts - one pertains to the boy and the other to the girl. But in Ex. P-2 Anil Kumar is mentioned as the name of the boy whereas Col. No. 9 in Ex. P-2 is blank and this column in the original is not readable now. However, he has stated that certain entries in the birth registers are made within 3 months according to the bye-laws of the Municipals Committee. However, in the present case there is no evidence that the said additional entries were made within 3 months according to the bye-laws. Surprisingly enough, both the Courts below have failed to take into consideration all these relevant circumstances while giving the finding that the birth-entries Exs. P-1 and P-2 relate to the plaintiffs. As observed earlier, there being absolutely no evidence on the record that the said birth entries relate to the plaintiffs, it could not be held in the circumstances of the case that the plaintiffs were minor at the time of the sale. The onus was very heavy on the plaintiffs to prove this fact in order to succeed in the suit which they have utterly failed to discharge. The privy Council in Sardar Gurbaksh Singh's case (AIR 1927 PC 230)(supra) has held that the practice of not calling the party as witness with a view to force the other party to call him, and so suffer the discomfiture of having him treated as his own witness is a bad and degrading practice. The true object to be achieved by a Court of justice can only be furthered with propriety by the testimony of the party who personally knowing the whole circumstances of the case can dispel the suspicions attaching to it. The story can then be subjected in all its particulars to cross-examination.
5. In the present case, not only that the plaintiffs themselves did not come in the witness box but they even did not produce their mother who was the best witness to state about their birth particularly when the dates of birth given by her earlier in Ex. D-4 were different from those given in Ex. P-1 and Ex. P-2. Under these circumstances, the findings of the Courts below are, in this behalf, vitiated and are liable to be set aside as the same are based on no evidence on the record.
6. Apart from that the defendants also produced a copy of the order dated 12-10-1960 passed by the District Judge, Gurdaspur, Ex. D-3. The said order was passed on an application filed by Kamala Devi under Section 8 of the Hindu Minority and Guardianship Act, 1956 for permission to transfer by sale the property of the minors Ashok Kumar and Anil Kumar. In the said order Ex. D-3 the Guardian Court observed 'that the petitioner and her minor sons are residing with the parents of the petitioner. I am convinced that there is no body to look after the property belonging to the minors. It is not possible for Smt. Kamala Devi to stay at Batala to look after the property. It is evident that the property is more an encumbrance than an asset.' Thus it was found that the alienation of the suit property was in the interest of the minors and the necessary permission was granted. But however, it was further ordered that the sale shall not be competed without the sanction of the Court and the sale proceeds shall be deposited in the Court and then the amount so collected shall be invested in the purchase of Small Saving Certificates in the name of Ashok Kumar and Anil Kumar. In view of this order, an application dated 19-5-962 Ex. D-5 was moved by Smt. Kamala Devi the mother of the plaintiffs in which it was prayed that the condition in the original order dated 12-10-1960 to the extent that the amount of sale proceeds is to be invested in the purchase of Small Saving Certificates in the name of the minors be amended and the applicants may be allowed to deposit the money raised from the sale of the property in the Court and from the sale of he property in the Court and from the sale of the property in the Court and from time to time as the necessity arises. Permission may be granted to the applicants to withdraw this amount deposited in the Court for the education of the minors, so that their education may not suffer. The copy of the order passed in that application is Ex. D-2 which is in Urdu and its English rendering reads as under :--
'Counsel for the petitioners present. Order dated 12-10-1960 is amended to the effect that instead of purchasing the Small Saving Certificates the money be deposited in the Post Office Bank so that it may be taken out as and when needed.'
This order is dated 23-5-1962. It was in view of these two orders i.e. Exs. D-3 and D-2 that it was stated in the sale deed itself that the necessary permission of the Guardian Court has been obtained. In the plaint also, the plaintiffs nowhere alleged that their mother acted against their interest in selling their property. Under these circumstances, it is quite evident that the sale was executed in the interest of the minors on their behalf by their mother Kamala Devi who was the natural guardian because their father had already died much earlier.
7. An argument was raised on behalf of the plaintiffs-respondents that in any case Anil Kumar plaintiff was a minor at the time of the sale because the sale deed was executed by his mother as natural guardian and therefore, Anil Kumar plaintiff was entitled to a decree for his share in the suit property. I do not find any force in this contention. The plaintiff Anil Kumar in order to succeed in this suit was to prove that he was a minor at the time of the sale and also the present suit was brought within 3 year of his attaining majority. There was a specific issue also to this effect framed by the trial Court. Once it is found that Anil Kumar has failed to prove his date of birth, then it cannot be said that the suit was brought within 3 years of his attaining majority. So under these circumstances, the claim of Anil Kumar plaintiff is also liable to be dismissed being barred by time.
8. As a result of the above discussion, this appeal succeeds. The judgments and decrees of the Courts below are set aside and the plaintiff's suit is dismissed with costs.
9. Appeal allowed.