JASWINDER SINGH Vs. BALJINDER SINGH

JUDGEMENT

(1.) THIS is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the judgment and decree dated 18.8.2003 passed by the learned Additional District Judge, Muktsar partially reversing the judgment and decree dated 1.9.1999 of Civil Judge (Jr. Division), Muktsar. The Civil Judge vide her judgment and decree dated 1.9.1999 had dismissed the suit of the plaintiff-respondents wherein claim for possession was made against the defendant-appellants. The claim made in the suit was based on the allegation that the sale deeds dated 9.7.1982, 30.7.1982 and 12.11.1982 were liable to be declared as illegal. It was alleged that at the time of execution of the sale deed by Balbir Singh defendant-respondent No. 2, Baljinder Singh plaintiff-respondent No. 1 was minor. It was pleaded that date of birth of plaintiff-respondent No. 1, Baljinder Singh was 29.12.1964 and on the date of execution of three sale deeds, he was minor and his father Balbir Singh used to manage the property being Karta of the family. The suit was dismissed by the trial Court in its entirety by recording the finding that at the time of execution of the sale deeds Ex. PW1/A, Ex. PW1/C and Ex. PW1/D, plaintiff-respondent No. 1 Baljinder Singh was hail and hearty and he was major being about 20 years of age at that time. The trial Court also found that date of birth of plaintiff-respondent No. 1 Baljinder Singh was 23.2.1964 on the basis of records of the Khalsa Higher Secondary School, Sri Ganga Nagar. Reliance was also placed on Middle Standard examination certificate Ex. D6 and the admission form Ex. DW3/A to conclude that date of birth of plaintiff-respondent No. 1 is 23.2.1964. In the presence of school record, the certificate Ex. P1 issued by the Registrar of Births and Deaths showing the date of birth of plaintiff-respondent 1 to be 29.12.1964 was discarded and accordingly, the trial Court held that plaintiff-respondent No. 1 was a major on the date of execution of the sale deeds Ex. PW1/A dated 9.7.1982, Ex. PW1/C dated 30.7.1982 and Ex. PW1/D dated 12.11.1982.

(2.) THE lower Appellate Court, however came to the conclusion that certificate Ex. P1 recording the date of birth of plaintiff-respondent No. 1 as 29.12.1964 has to be accepted because it has been issued by the competent authority under the Births, Deaths and Marriages Registration Act, 1886 (for brevity, 'the Act'). Reliance has been placed on a judgment of Lahore High Court in the case of Mohammad Hasan v. Safdar Mirza and others, AIR 1933 Lahore 601, laying down that evidence regarding the date of birth as recorded in the birth register cannot be replaced by an entry in the records of educational institution. The view of the learned Additional District Judge reads as under :-

(3.) MR . J.S. Brar, learned counsel for the defendant-appellants has argued that the evidence regarding the date of birth based on the school record as relied by the learned trial Court could not be discarded in preference to Ex. P1, the certificate issued by the Registrar of Births and Deaths. The learned counsel has pointed out that father of plaintiff-respondent No. 1 has himself verified his date of birth in the application form Ex. DW8/A submitted to the school for admission when he was got admitted in Government Middle School, Maur, where the date of birth of plaintiff-respondent No. 1 recorded is 23.2.1964. He also relied upon the transfer certificate of plaintiff-respondent No. 1 Ex. DW5/A and the entry of admission register of Government High School, Harike Kalan Ex. DW3/D. The learned counsel has further emphasized that the admission form Ex. DW1/A also shows his date of birth to be 23.2.1964. On the basis of aforementioned overwhelming evidence, the learned counsel has argued that the finding has been replaced by the lower Appellate Court merely on the basis of a certificate Ex. P1 issued by the Registrar of Births and Deaths, wherein the date of birth of plaintiff-respondent No. 1 is recorded to be 29.12.1964. The learned counsel has maintained that once the date of birth of plaintiff- respondent No. 1 is found to be 23.2.1964, then he would be deemed to be the major and his whole suit is liable to be dismissed and the judgment and decree passed by the learned trial Court deserves to be restored. The learned counsel has also argued that sufficient Court fee has not been paid as the suit has not been properly valued for the purposes of Court fee and jurisdiction. According to the learned counsel, the payment of Court fee on the basis of ten times of the land revenue of the suit land for the purposes of Court fee and thirty times the land revenue for the purposes of Court fee and declaration at Rs. 195/- is absolutely illegal and the Court fee ad valorem was also required to be paid.