MRITYUNJAY PRASAD Vs. SANTOSH KUMAR MISHRA

JUDGEMENT

(1.) SHORT facts giving rise to the present appeal are that the plaintiff/appellant has instituted a suit for declaration about the date of death of Sudarshan Prasad. The plaintiff pleaded his pedigree in para-1 of the plaint. The plaintiff has stated that his predecessor Sudarshan Prasad died on 28-11-1992 at 11. 00 P. M. However, the office of District Registrar, Births and Deaths, Rewa, issued a death certificate wherein Sudarshan Prasad is shown to have died on 29-11 -1992. The plaintiff on coming to know of the aforesaid error, issued a notice dated 17-9-1996 under Section 80, CPC, with a request that the death certificate issued with 29-11-1992 as date of death of sudarshan Prasad may be withdrawn. The notice was not acceded to and consequently, the cause of action is stated to have arisen on 16-11-1996, i. e. , on the expiry of the statutory period of notice under Section 80, CPC. The aforesaid incorrect death certificate is stated to have been issued on 8-8-1993 by the office of respondent No. 3. The plaintiff also prayed for relief that the death certificate with 29-11 -1992 as date of death of Sudarshan Prasad may be declared ineffective.

(2.) THE defendant/appellant raised an objection about the date of birth in his written statement and stated that the correct date of death of Sudarshan Prasad was 29-11-1992. The defendant/appellant further raised an objection in the written statement that the suit of the plaintiff is barred by limitation. The defendant also submitted an application under Section 151, CPC with a prayer that the issue pertaining to limitation may be decided as a preliminary issue and the suit may be dismissed as barred by limitation. The plaintiff submitted his reply stating thereby that the question of limitation being a mixed question of facts and law, is required to be decided only after recording the evidence.

(3.) THE learned Trial Judge held that no oral evidence was required and the issue pertaining to limitation will be decided on the basis of documents on record. The learned Trial Judge, ultimately vide order dated 16-11-1998, dismissed the suit of the plaintiff as barred by limitation.