MAHENDRA SINGH Vs. SHANKAR DAYAL SINGH

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit brought by certain reversioners of the family of Ram Lochan Singh deceased who was the last male owner. The plaintiffs case was that they were his next heirs and that he had died without any issue. There was previously a dispute in the revenue Court in which the plaintiff's were not successful. Hence the present suit. On behalf of the contesting defendant, Shankar Dayal Singh, it was first denied that the plaintiffs were the nearest collaterals and it was also pleaded that the defendant was the son of a daughter of the deceased Ram Lochan Singh, and was therefore entitled to succeed to the estate in preference to the plaintiffs. The trial Court framed issue 1 as to whether the plaintiffs were the reversionary heirs of the family of Ram Lochan Singh, and if so, was the defendant the daughter's son of Ram Lochan Singh? The lower Court has found that the plaintiffs are the collaterals, but has also found that the defendant is Ram Lochan Singh's daughter's son. Accordingly the suit has been dismissed. Only one of the plaintiffs, namely, Mehendra Singh has appealed.

(2.) It is urged on behalf of the appellant that the learned Subordinate Judge has thrown the burden of proof on the plaintiffs wrongly inasmuch as he started with the proposition that as the plaintiffs want to oust the defendant, unless they show that the defendant is not the daughter's son of Ram Lochan Singh, they cannot succeed. It is further urged that the learned Subordinate Judge has wrongly rejected the deposition of Mt. Pato given in the previous mutation proceeding, although she was dead at the time of the civil suit. The finding based on the evidence is also challenged. It seems to us that the learned Judge has not thrown a heavier burden on the plaintiffs than that of requiring;them to prove that they were the next heirs of the deceased Ram Lochan Singh. The mere fact that the plaintiffs were the nearest male collaterals would not in itself be sufficient to show that they were the next heirs. It was certainly incumbent on them , to show that he had not left any nearer heirs like daughter or, daughter's son, who would exclude the plaintiffs, even if they were the nearest male collaterals. The learned Judge however has not decided the case on a finding that the plaintiffs have failed to discharge the burden of proving this. He has recorded a categorical finding that the defendant is the daughter's son of Ram Lochan Singh and has a better title than the plaintiffs who were separate from him. The question of the burden of proof therefore is not of any great importance now. As regards the statement of Mt. Pato, the sister of Ram Lochan Singh, made by her in the mutation Court in the proceeding in which the plaintiffs and the defendant were parties, the learned Judge has considered it inadmissible inasmuch as the evidence was not given in a judicial proceeding because the mutation case is only an administrative proceeding and not a judicial proceeding.

(3.) The learned Judge regarded the statement as evidence, but thought that inasmuch as the proceeding in the revenue Court was not a judicial proceeding, the statement was not admissible. He is quite right in holding that the statement is not admissible under Section 32, Evidence Act, because the statement was made after the dispute had been raised. But the learned Judge has overlooked the additional words which occur in Section 33, Evidence Act, which make the evidence given by a person in a judicial proceeding "or before any person authorised by law to take it" relevant. The question therefore was not only whether the proceeding before the revenue Court was a judicial proceeding but also whether the Collector was not a person authorised by law to take such evidence. No doubt it is the duty of the Collector to maintain annual registers, and in cases where there is no dispute, the entry of transfers in the Registers is an administrative Act. But where a dispute has arisen and the case has been referred to the Collector under Section 39(3), the proceeding is governed by the provisions of Section 40, which lays down that all disputes shall be "decided" on the basis of possession, and also provides that if in the course of his "enquiry" the Collector is unable to satisfy himself as to which party is in possession, then he is to ascertain by summary enquiry" who is the person best entitled to the property and is to put such person in possession. Sub-section (3) speaks of putting such person in possession as an "order as to possession passed under the section." It seems to us that when the section speaks of, a decision and directs that the Collector should make a summary enquiry and then pass an order as to who is the person entitled to possession, the proceeding before him is certainly before an officer who is authorised by law to take evidence.