SARWAN SINGH Vs. ASHOK KUMAR

JUDGEMENT

(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 preemption 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 preemption 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 :-

(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. P2 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.