u-^ $ c. f ^c^ IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR Appellants Plaintiffs First Appeal No. 1 ^ /2009 \°> ^ \^y 2 »•- ^^<i/~ f°\ "';. ^''-^'<k .• y~^ / Respondents ^ Smt Tara Tiwari, aged about 50 years W/o Late Ballu Tiwari, @ Virendra Tiwari Rajnish Tiwari, aged about 26 years, S/o Late Ballu Tiwari @ Virendra Tiwari, Both R/o Ward No. 21, Manendragarh Distt. Koriya Versus 1. South Eastern Coalfield Lt'd. through Chief General Manager, Hasdev Area, South Jhagrakhand, Tahsil Manendragarh, Distt. Koriya 2. Priyanka Tiwari, aged about 29 years, D/o Ballu Tiwari @ Virendra Tiwari, At present R/o Santoshi Nagar Raipur 3. Ranu Tiwari, aged bout 24 years, D/o Ballu Tiwari @ Virendra Tiwari R/o Behind Irrigation Office, Gharola Mohalla, Shahdol 4. Rakesh Tiwari @ Sandeep Tiwari, S/o Ballu Tiwari @ Virendra Tiwari, R/o Police Line, Balrampur, Distt. Sarguja FIRST APPEAL UNDER SEGTION 96 OF THE CODE OF CIVIL PROCEDURE -'•"•^ l.tfi '<^:^ ?ft"~ HIGHCOURTOFCHHATTISGARHATBILASPUR SinateBendi: Hon'bte Shri Justice Prashant Kumar Mishra First tooeal No. 193 of Smt. Tara Thwari and another Versus South Eastern Coaifieid Ltd. and others JUDGMEN T Post for ^^-10-2010. Prashant Kumar Mishra Judge -1"?. lT'"i" "*T' '<»• HIGH COURT OF CHHATTBGARH AT BILASMJR Sinate Bwch: Hon'bteStwi Justice Prashant Kumar Mishra APPELLANTS RESPONDENTS FA.No. 193/2008 Smt. Tara Tiwari and ancrther. Versus South Eastem Coaifield Ud. and others- Shri Parag Kotecha, counsei for the appeltante. Shri Vinod DeshmuMi, counsei for respondent No.1. Shri Anand Shukia, eounsei for r^pondents No. 2 to 4. KPPEKL UNDER SECTiQN 88 OF THE CODE OF CIVIL PROCEOJRE JUDGMENT t3.e\ .10.2010t The unsuccessftii plaintife have prefarred this first appeal under SecBon 96 of C.P.C. to cai! in questfon the judgment and decree passed by the frial Court dismissing their suit for a dectarafion that Ballu Thyari and Virendra Tiwari are names of one and the same person and they are the legal heirs of said Ballu Tniari @ Virendra Tnrari. (2) The suit was filed on the pleadings erter affa that iate Ballu Tswari husband of piaintiff No.1 Smt. Tara Tiwari and father of piaintiff No.2 Rajnish Tnvari was employed as General Majdoor m the South Eastem Coaffiekl Limited (hencefo/ffi 'SECL? havir^ been appointed on 02-12-1987. The seud Baliu Tiwari died on 21-07-2CX)8. it vas stated that Balfu Tiwari was also known as Virendra Thrari and Bailu Traari @ Virendra Tiwari was one and the same peraon. tn the family Ratfon Card issued by Vne Manendogarh Municipaiity, name of Balfu Tiwari is mentioned as @ Virmdra Tmsn and there is no dispute about Uie patemity of Ballu Tiwari, however at the fime <rf entering into seivice name of plaintiff No.2's father Virendra Tiwari was BH IUK81BISBi§iliKS8iUBBB8SilSSIjagB^ KWVps;mg-SSfSsffKim^S%W"K 'VIW^^^^^^ \3Qf:'wm ^': -'-.-.::'" s:.^ 3T vr'/ mentioned as Ballu Tiwari as he vas populariy known as Batlu Tiwari.By inadvertence and ty ignorance his real name was not recorded in the servfce recoids, however the ptainfiff No.2 has been directed by the defendant SECL to obtain a declaration that Ballu Tnrari and Virendra Tiwari are ttie name of one and the same pereon. (3) The defendant SECL averred in his written statanent Uiat in the records availabte in the SECL name o( Ballu Tman is mentroned and that it is not accepted that Baihi Tnrari and Nfirendra Tiwari were names of meand the same person. (4) The triat Court while deckling issue No.2 has recorded a finding that from the records availabte in the SECL \riiich have been fited as Ex.D-1 and D-2 Vne name of the dependente of Bailu Tiwari is mentfoned. In the said documents name of ttie plaintiffe have been mentioned as wife and son respectively and the narne of defendant No.2 and 3 as daughtera and the name of defendant No.4 as son are atso mentioned. Name of Baltu Thrari's father is also mentioned as Ram M-anohar. Thus, the triat Court found that the plaintiffe have established that ttiey are the iegai representatives and successor of deceased Ballu Twan. (5) White decying issue No.1 th®tria! Court has recorded a finding that the plaintHfe have not been able to estabiish that Baliu Tiwari was ateo lm<wn as Virendra Thrari and both the names were of the same peraon. (6) The appeliants tvave moved an apptication under Qrder 41 Rute 27 of C.P.C. to bring on record additional evidence. They have ffled copy of the piaint ofthe suitfiled by Baltu Tiwari @ Virendra Tiwari himself during his life time to seek a declaration tt»athe is known as Batiu Tiwari @ Virsndra Tiwari and the.defendant SECL be directed to correct the sewfce record accordingly. ^ '' l ::ys'F ;s'^'ssS!sesss^s?:' ;~'i^'''sv ?s».-^ •s^ry ^^ 'SS -3- The said suit was dismissed as abated vkie order passed by the Cml Judge Class -li. Manendragarti on 20-08-2008 in Civil Suit No. 6/^QS. Copy of this ordsr has aiso been fited ty the appeliante. The report submitted by the concemed Potic®on ihe enquiry sought by ttie rsspondent SECL about tfte fact as to whether Balhi Tnvari S/o Ram Manohar Tiwari was atso known by the nanw of Virendra Tnvari tas also been placed on record. The maricsheet of M.A. (ftevious) examination issued by Guru Ghasidas Universiiy, Bilaspur in favour of defendant No.2 Priyanka Tnrari showing her father's name as Virendra Tiwari and mother's name as Tara Thwari and the martcshe^ issued by the Guru Ghasidas Uniyeraity. BHaspur of LL.B. Part - ! exaniination <rf piaintifF No.2 Rajnish TNrari showing his fathw's name as Virendra Thvari and mother's name as Tara Twfari has aiso been filed by the appetlante. Al! these documents are cc^ries of plaint, order passed in Civil Suit, enquiiy report submitted by the Police and the marteheet^are m the nature of publfc dwumente and their auiftenticity or th®source of fesuance are not suspicious. The documents appear to be necessaiy for adjudication of the dispute. The respondent SECL has not fited any repty to ttie application under Order 41 Rule 27 of C.P.C. The prayer for submitting additionai evidence is therefore ailewed. f7) The plaintiff No.1 has examined heraelf as PW-1 and ttie ptainfiff No.2 has examined himseff as PW-2, One Ramakant Pandey has been examined as PW-3 and Shyamtal Sen as PW-4. On the ottier hand defendant SECL has examined CTV-1, Ciprien Kerketta as DW-1. The plaintiffs wihiesses have unequivocalty asserted ihat Batlu Thrari @ Wrendra Tmrari were the name of one and the same peraon. The defenctenfe witness has proved the documents Ex. D-1 and Ex. D-2, hcwevw he has feigned ignorance about ttie Ffact as to whether Ballu Tiwari and Virendra Thrari were names of one and ai.,-f^ '•1 -^l- the same person. Thus, ttie defendant's wfriess has not stated anything materiat to demolish the case of the plainUff. (8) Ex.P/2 is the marksheet issued in favour of platntiff No.2 Rajnish Thwari by Guru Ghasidas lAiiveraity, Bilaspur for M.Com. (Fmal) examinatton. In this marteheet name <rf plaintiff No.2's father is msntioned as Wrendra Tiwari and that of his mother as Tara Tiwari. The examination cenfre is mentioned as Govemment Vivekanand Coli^e, Manendragarh. The saki Bailu Tiwari was aiso residing at Manendragarh as he was posted as Gentral Hospilai SECL in Manendragarti. Ex.P/3 is an apptication supported with afddamt dated (%-10-2007 signed by Ballu Tiwari sutanitted before the SECL making request that in the service records his name be menfioned as Balfu Tiwari @ Virendra Tiwari. Ex.P/4 is the family Ration Card issued by Manendragarh Municipaiity m which Baitu Tiwari @ Virendra Thrari has been mentioned as the head of Ihe famiiy. Ex.P/5 is an affictevit of Baliu Tnvari stating ttiat he is ateo known as Virendra Ttwari and plaintiff hto.2 Rajnish Tiwari is his son. Defendant SECL has not disputed the documentary evidence submitted by the plaintifis. (9) The trial Court has aiready found that the ptaintiffe are the l^ai representatives and succ^»orof Batlu Thwari who was employed as Generai Majdoor with the SECL. Ballu Tiwari has himsetf fited a suit seeidng a dectaration ftat he is also known as Virwidra Tiwari and the SECL shouU be directed to correct ttie seroce records. This suit was dismissed as abated when the said Baliu Tiwari died durinp pendency ofthe suit. tn the marisheet of piaintiff No.2 Rajnish issued in the year 2<X35 his father's name is mentioned as Wrendra Tiwari and mother's name as Tara Twan. Thus, wrtien it is aiready found that the plaintiffe are ttie tegal repr^entatives and suCcessor of Baiiu Tiwari and marteheet shows the name of piaintiff No.2'3 _A ^•uu|i"uaU!U«n:^--'-';'*'.'':T'':'';•'•••'"". . -'^:' ~ 'ff fFNfiS;i;^^:5?s^i'^ -5- father as Virendra Tiwari, it appyars highty probable and irresistibte conctusion can be drawn that Ballu T«fas\@ Virendra Thrari WEB one and the same pwswi and that Batiu Tiwari was also known as Virendra Tiwari. (10) tt is not the case of the defendant that some mischief was played by Ballu Tiwari at the time of obtaining seraces and that the peraon in the name of Virendra Tiwari got employment in the name of Baitu Tivrari. !n absence of any such allegation having been advanced by the defendant SECL and coupled with the finding recorded by the traif Court that tt»e appetlants/plaintifls are the iegal repr®sentatives and succ^sor of Ballu Tnvari, this Court has no h^itation in holding that from ttte eviden(» on record jt is fully wtablished that the Ballu Tiwari @ Wrendra Tfv/wi was one and the same person and that Ballu Thwari was also known as Virendra Trwari. Thus, it is found that the fmding on issue No.1 has bewi arrived at by misreading of evidBnce and is not sustainabie. (11) The appeal, thus, succeeds and (s allowed. Thejudgmentanctdecree passed by the hial Court is set-aside. tt is declared that Bailu Thvari Virendra Twari was one and the same pefson and that the piaintiffs are iegat representatives/successois of the said Baltu Tnvari @ Virendra Tiwari Sfo Ram Manohsff Tnvari. (12) A decree be drawn-up accordingly. Sd/- Prashant Kumar Mishra Judge ^ ^.1: .^.-L.-.. .^---—