-/ ,^ IN THE HIGH COURT OF JUDICATURE AT BILASPUR SECOND APPEAL No. )^> A~^ft96-2-.6 Appellant P-1amtiff 'v Y^ ^7 Radheshyam @ Ulla, S/o—Darbari, Aged about -45 years, Caste - Gaderi, R/o - Village - Kusmusi, Tahsil - Surajpur, District - Surguja (C.G.) Vs. Respondents Defendants H ^YV-ht'K- ' Bangu, S/o - Late Shri Daya, Aged about - 60 years. 2/i Biswanath, S/o - Late Shri Daya, ./f,. y^ / ^' J / ^y T^!?«^^ < I^Aged about- 45 years. ^¥,\Y ¥\¥\VY . ^- Chhaua, S/o - Late Shri Daya, V/W^ ^ Aged about - 35 years. /^'^' '4, Parbat, D/o - Late Shri Daya, <-7-" Aged about - 63 years. 5. ^ State of Chhattisgarh, ^' ^^ Through: Collector, Surguja (C.G.) All are Agriculturist, Caste - Gaderi, R/o - Village - Kusmusi, Tahsil - Surajpur, District- Surguja (C.G.) MEMO OF APPEAL U/S 100 OF THE CIVIL PROCEDURE CODE ^...^.::: fflGH COURT OF CHHATTISGAIOI AT BILASPUR Sinfide Bench: Hon'ble Shri Justice Prashant Kumar Mishra Second ApDealNo. 19/2007 Radheshyam @ UUa Versus Bangu and others ORDER Postfor A^-01-2011 Sd//- Prashant Kumar Mishra Judge fflGH COURT OF CHHATTISGARH AT BILASPUR S.B: Hon'ble Shri Prashant Kumar Mishra Second Appeal No. 19/2007 ;. ^... APPELLANT Radheshyam @ UUa Versus RESPONDENTS : Bangu and others Appearance: Shri Goutam Bhaduri, counsel for the appellant. Shri S.N. Nande with Shri B.N. Nande, counsel for respondentsNo.l to 4. Shri Vinod Tekam, Panel Lawyer for the State/respondent No.5. . MEMO OF APPEAL U/S 100 OF THE CIVIL PROCEDURE CODE JUDGMENT (^8.01.2011) This second appeal under section 100 of CPC has been preferred by the defendant challenging the judgment and decree passed by the First Appellate Court, decreeing the plaintiffs suit for declaration and pennanent injunction while setting aside the Trial Courtsjudgment whereby plaintiflEs suit was dismissed. (2) Plaintiffs case, as reflected in the plaint, is that one Bhagirafhi (died in 1946) was their grandfafher who owned and possessed the suit land described in Schedule-A with the plaint. Their father Daya (died in 1973) was'the only son oflate Bhagirathi. On 1/08/2001 the plaintiffbecame aware that one Darbari S/o Matro Gadheri, the father of defendant N6.1 Radheshyam has surreptitiously got recorded his €;;..-..A 1 "D^ ^^^- name in the revenue records pertaining to lands covered in Schedule- B which is the suit land. Plaintiffs applied for certified copies ofthe record ofrights ofthe year 1944-45 and for the first time they became aware on 20/08/2001, on receipt ofthe said record ofright that name ofdefendants father Darbari has been jointly recorded with the name of plaintififs father Daya in the revenue records and tfae said entry of the name of defendants father is illegal and without any title. Plaintiffs name were recorded in the revenue records after death of their father Daya in 1973 and at that time the name of defendant's father was not recorded in the revenue records as he had absolutely no right, title or interest in the suit land. (3) According to the plaintiffs their grandfather Bhagiratlii had only one son namely Daya and fh,e defendant Radheshyam or his father Darbari do not belong to their family. They are in possession of the land, however since after coming to biow that defendant is trying to alienate the suit land, Ae present suit was filed. (4) Case ofthe defendant/appellant is that Bhagirathi had two sons namely Daya and Darbari and as such he being the only.son of Darbari, is entitled to succeed to the property belonging to the family. It was fiirther stated in the written statement that name of Daya and Darbari was jointly recorded from 1954 till 1973 and in 1974 plaintiffs name were recorded after death oftheir father Daya. They further stated that during his lifetime Daya never objected to recording of the name of Darbari and infact plaintiffs also did not "? raise any objection when their name was recorded along with the name of Darbari in the revenue records and again no such objection was mised in 1988 and 1989 when Tahsildar Surajpur affected a partition between the plaintiffs and Darbari. It was specifically stated that late Bhagirathi, the owner of the land, was alsb known as Bhagirathi alias Matro, thus Bhagirathi and Matro are the name of one and the same person and fhat there is no other person faiown as Matro in Village Kusmusi and thus name ofDarbari was recorded in the revenue records as he was S/o Bhagirathi alias Matro. It was fiirther stated that burden to prove that Bhagirathi and Matro were two different persons, lies on the plaintiJSs. (5) The defendants also raised objection that the suit is barred by limitation and no cause of action has arisen in favour of plaintiff for filing the present suit. (6) Both the parties have led oral evidence and produced documents in support of their respective cases. The Trial Court dismissed the suit after recording a finding that Bhagirathi and Mafro was the name of one person and thus Darbari being S/o Bhagirathi alias Matro, the defendant No.l Radheshyam is also entitled to get recorded his name in the revenue records and tiius plaintiffs suit for declaration and permanent injunction was dismissed. It was also held that the suit is barred by limitation. (7) The First Appellate Court allowed the appeal preferred by the plaintiffs and wliile setting aside the judgment and decree passed by ^Ois-^. ^. "i%>. s y i -\^/' ^ the Trial Court, it has decreed the suit. The First Appellate Court found that the plaintiffs suit is within limitation and from the evidence on record it would appear that Bhagirathi ^id Matro were two different persons. (8) While admitting the appeal, this Court has framed the following substantial questions oflaw:- "(l) Whether the suit filed by the plaintiffs was barred by limitation? (2) Whether in the state of evidence on record the finding recorded by fhe first appellate Court that Darbari was not the son of Bhagirathi is perverse?" (9) The first substantial question of law is as to whether the suit is barred by limitation. According to the appellant/defendant the suit is apparently barred by limitation because as per plaintififs own case the plaintiffbecame aware about the recording ofthe name ofDarbari in the year 1973 and thus tfae present suit having been preferred on 27/08/2001 is barred by limitation. On the other hand, the respondents/plaintiffs have pleaded that cause of action accmed on 20th August, 2001 when they received certified copies ofthe revenue records and became aware for the first time that name of Darbari is also recorded in the revenue records and when Darbari started proclaiming that he wants to alienate the suit land. /•.s-.^^ ^: "%,, ^'^s^. tl €aajJ ^.fey ^ -5- (10) It is the case of the plamtifFthat when in the year 1973 they became aware of the entries of the name of Darbari in the revenue records, complaints were made to the revenue authorities and tfae records were corrected. Ex. P-7 is the record of rights of the year 1975-76, wherein name of plaintififs are recorded as bhoomiswami and name ofDarbari is not mentioned therein. Ex. P-10 is the revenue record of the year 1988-89 pertains to seven Khasra Nos. admeasuring 1.728 hectares out of total area 6.751 hectares mentioned in Ex. P-7. Thus the case of the plaintiffs that the defendanVappellant got recorded his name surreptitiously and when the plaintiffs became aware ofthe entries ofhis name in the revenue records, they obtained certified copies and after receiving the same on 20th August, 2001, the suit was filed on 27/08/2001 appears to be well founded. Thus, it is found that the cause of action for filing the present suit had accrued in August 2001 and the suit filed by the plaintiffis within limitation. (11) In the matter ofDaya Sin^i and another Vs. Gurdev Smgh (Dead) by LRS. and others, (2010) 2 SCC 194 the Hon'ble Supreme Court has held fhus in paragraph 15, "15. A similar view was reiterated mC. Mohannned Yunus v. Syed UmiissaAIR 1961 SC 808 in which this Court observed: (AIR)p.810,para7) ; 7... ....The period ofsixyears prescribed by Article 120 has to be computedfrom the date when the right to sue accrues and there-could be no right to sue until there is an accrual of ^^•^. 1 -^- the right asserted in the suit and its infringement or at least a clearanditnequivocal threat to mfii.nge thatright. " In C. Mohammad Yunus (supra), this Court held that the cause of action for the purposes o/Article 58 oftheAct accrues only when the right asserted m the suit is irtfrmged or there is at least a clear and unequivocal threat to infiinge that right. Therefore, fhe mere existence of an ach'erse entry m the reverme records camiot give rise to cause ofaction. (12) Thus, on the basis ofpleadings and evidence it is established that after 1973 the revenue entries were corrected and name of Darbari was deleted, however when his name was again recorded surreptitiously, this came in to the knowledge of the plaintifife in August, 2001 is fully established and the plaintiffs suit filed in August 2001 is within limitation. (13) The second question of law is about Darbari also being known as Matro. Ex. P-4 is the electoral roll of the year 1975 of Surajpur Assembly Constituency. In this electoral roll name of father of Darbari is mentioned as Matro whereas in Ex.P-5, electoral roll ofthe same year name offather ofDaya is mentioned as Bhagirathi. Ex P-6 is another document of the year 1957-1965 in which Darbari is referred as S/o Matro. Ex. P-8 is the certified copy of Sarguja State Settlement Khatiyan mentioning name of Raiyyat as Bhagirafhi Gadheri S/o Girdhari and it is not referred therein as Bhagirathi alias Matro. Ex. P-9 is the record ofright of 1954-55, wherein Darbari is mentioned as S/o Bhagirathi. It is this document which is relied by defendant along with the sale deed Ex. D-5/Article-A in which s -^, "^ ^ -^- Darbari along with Dayaram both mentioned as S/o Bhagirathi have sold some land to another person. This sale deed is of 9 March, 1971. (14) According to the appellant the entries in the electoral roll have not been proved in accordance with law. Reference has been made to the case of Supreme Court in (2010) 9 SCC 209 Madan Mohan Suij^i and others Vs. Rajni Kant and another. Appellant hasalso relied on judgment of Supreme Court in Dubaria Vs. Har Prasad and another, (2009) 9 SCC 346 to argue that while reversing the Trial Courts decree, First Appellate Court is required to appreciate the entire evidence on record. On the other hand, learned counsel for the respondent has argued that the copies of documents namely electoral roll maintained by statutory authorities need not be proved by examining the officer making the entries. He has relied on Kirtan Sahu, after him Uma Sahuani and others Vs. Thakur Sahu and others, AIR 1972 Or&ssa 158 (Full Bench) (paragraph 7) and Smt. Ama Devi Vs. Bachan Singh and another, AIR 1980 AUahabad 174. (15) It is the defendants own case in the written statement that Bhagirathi had only two sons, however defendant Radheshyam himselfappearing as DW-5 has admitted that one Dheeru was his real uncle meaning thereby and as admitted fiirther by this witness, Bhagirathi had three sons namely Daya, Darbari and Dheeru. This admission makes his entire defense shaky, unworthy ofany credit and -^ doubtfiil. More so PW-2 Ramroop aged 75 years has clearly stated that Bhagirathi and Matro were two different persons. This witness has clearly stated that he knows and had seen Bhagirathi and that he was not known as Matro. PW-3, Bhudduram aged 65 years has also stated that Bhagirathi and Matro were two different persons. There is yet another witness namely PW-4, Chhota supporting the plaintiffs case that Bhagirathi had only one son namely Daya and Matro was a resident ofVillage Daloni, Singrouli. He has categorically denied the suggestion that Matro and Bhagirathi were one and the sdme person. (16) Thus, on the basis ofstatement ofwitnesses and copies ofthe electoral roll Ex. P-4 and P-5 and tfae revenue entries Ex.P-6 of the year 1957 to 1965 mentioning Darbari S/o Matro, the finding recorded by First Appellate Court to the effect that Darbari was not the son of Baghirathi is perfectly bome out from the evidence available on record and is not perverse. With regard to the nature of evidence in form of electoral roll, the High Court of Orissa in the matter of Kirtan Sahu, after him Uma Sahuani and others Vs. Thakur Sahu and others (supra) has held thus in paragraph 7: "7. The electoral roll being a public document is admissible in evidence and it is not necessary to prove the source ofinformaHon on the basis whereof the facts stated in the roll were recorded, nor is it necessary that the person "who prepared the electoral roll has to be examined in the court to I prave the roll. As a public document it is admissible under the ^ provisidhs of the Evidence Act. As was indicated by the ^ ^ ^ ^- Judicial Committee in (1879) 7 IndApp 63 (PC) (Rani Lekraj Kuarv. BabuMahpalSingh). "The entry having stated that relevcmt fact, the entry itself becomes byforce ofthe sectton a relevant fact; that is to say, it may be given in evidence as a relevant fact, because, being made by a public officer, it contains an vntty ofafact which is relevant." We would accordingly answer the question referred to tis thus: "The electoral rollprepawdunder the Representation of the People Act is adnussible in evidence without ffie author thereof and the person supplying the infarmation being examinedin the case." It would, therefore, folhw that the view expressed by the Division Bench in (1970) 36 CutLT 1211 and the three other cases already referred to by a smgle Judge m this Court with reference to fhe cwhmssibility of the electorat roll ^vas not correct." (17) In view of the above, it is held that the electoral roll Ex. P-4 and P-5 are admissible in evidence. (18) In view of the above both subslantial questions of law are answered against the defendant/appellant and consequently the instant second appeal is dismissed. (19) There shall be no order as to costs. (20) A decree be drawn up accordingly. Sd//- Prashant Kumar Mishra Judge •^