Hon'ble Prakash Krishna, J.
The dispute relates to Khata Nos. 38 and 193 situate in village Muda Dih, Tappa Deoria, Pargana Salempur Majhauli, district Deoria. The said village was brought under the consolidation operation by issuing notification dated 12th July, 1973 published in U.P Gazette. In the basic year, land in dispute was jointly recorded in the name of the petitioners and their predecessors in interest. A small pedigree has been given in the order of the Deputy Director of Consolidation which is not in dispute. Sehati and Bandhoo Ss/o Neoor were two brothers. The petitioners are from the branch of Sehati. Bandhoo had one son namely, Algoo, who was married with Aftee. Aftee had died in the year 1959 living behind, according to the petitioners, no male or female issue. Therefore, after death of Aftee the property in dispute came to be recorded in the name of Sehati in pursuance of mutation order dated 15 December, 1959. The names of the petitioners continued to be recorded in the revenue record since then and was so recorded in the basic year when the village was notified for consolidation operation. Smt. Gulabi, respondent no. 3 herein filed objection before the consolidation court claiming herself daughter of Aftee and thus claimed cotenancy over disputed khatas. The petitioners contested the claim on the pleas inter alia that she is not daughter of Aftee but she is daughter of one Sita of village Bahorpur. She has been set up by Bhola and Basdev Singh who are enimical terms with the petitioners for a long time.
The parties led evidence oral and documentary in support of their respective cases. Consolidation Officer by the order dated 18 October, 1975 rejected the objection filed by Smt. Gulabi. The matter was carried in appeal before the Assistant Settlement Officer, Consolidation, who allowed the appeal by the order dated 28 August, 1976. The said order has been confirmed in further revision by the Deputy Director of Consolidation by the order dated 1st October, 1981. Challenging the aforesaid two orders dated 28 August, 1976 and 1 October, 1981, the present writ petition has been filed.
During pendency of the revision, the original record of the case was misplaced and it could not be traced out. Consequently, the Deputy Director of Consolidation ordered for reconstruction of the record. Record has been reconstructed and there is a dispute between the parties with regard to the correctness of the copies of the statement of Jhagroo, one filed by the petitioners and another filed by contesting respondent no. 3. However, this matter shall be dealt with at an appropriate stage.
Learned counsel for the petitioners submits that there is no tangible evidence on record to show that Smt. Gulabi is daughter of Aftee. He submits that consolidation court wrongly placed the burden upon the petitioners to prove that Smt. Gulabi is not daughter of Aftee. The basic year entries were in favour of the petitioners, it was for Smt. Gulabi to prove her case by cogent and reliable evidence which she failed to do so. The mutation was ordered in favour of the petitioners after death of Aftee on 15 December, 1959 but no such objection, if any, at any stage was ever put forward by Smt. Gulabi. The relationship of Smt. Gulabi with Aftee could be established within the parameters of Section 50 of the Evidence Act and not otherwise. The courts below have committed illegality on placing reliance upon non admissible evidence ignoring the material facts of the case. In short, there is no tangible evidence to establish that Smt. Gulabi is daughter of Aftee.
Shri R.C Singh, learned counsel for the contesting respondent, on the other hand, contended that in view of judgment of this Court in Bhurey v. Pir Bux, 1973 A.L.J, 312, any consent or admission made in mutation proceedings has no relevance in regular title proceedings. It was further contended that mutation proceedings are summary proceedings and regular proceedings thus are not barred by res judicata. Reference was made to certain decisions such as Inder Singh v. The Financial Commissioner, Punjab, JT 1996 (10) S.C 374 and Narain Singh v. Addl. Commissioner, Meerut, 1999 (90) R.D 416. Certain decisions were relied upon for the proposition that a writ court cannot be converted into a court of appeal. It is directed not against decision but is confined to examination of decision making process. A writ court cannot examine the finding of fact recorded by the courts below. A writ court can only examine whether the decision making process adopted by the courts below is correct or not, submits the learned counsel for the contesting respondent.
Considered the respective submissions of the learned counsel for the parties and perused the record.
The basic question mooted in the present writ petition is whether the finding recorded by the First Appellate Court and the Revisional Court holding that Smt. Gulabi is daughter of Smt. Aftee is based on relevant and admissible evidence on record or not. Whether the courts below have rightly placed the burden of proof on the petitioners, is the another question which is interwoven and connected with the main question.
The court is conscious of the fact that a writ court cannot interfere with the finding of fact recorded by a Court, Tribunal or Authority below to it. This proposition of law is firmly established. At the same time, a writ court is not precluded in exercise of its jurisdiction under Article 226 of the Constitution of India to find out as to whether the finding of fact is based on legal evidence or not.
It is not in dispute that after death of Aftee in the year 1959, the disputed property came to be recorded in the names of branch of the petitioners. The mutation proceeding was taken out and it was registered as Case No. 338 and by the order dated 15 December. 1959, the names of the petitioners' branch was entered in the revenue record. It is true that the said order is summary order but it is also true that since 1959 no step was taken to set at naught the order dated 15.12.1959 Since 1959, Smt. Gulabi has never asserted her co-tenancy right in the disputed khatas. For the first time, when the village was notified in the year 1973 for consolidation operation, she appeared on the scene and started claiming herself as daughter of Smt. Aftee. It is also not in dispute that in the basic year, the petitioners' branch was recorded as tenants in the revenue record over the disputed khatas. Law is well settled that a person who disputes correctness of the revenue entry recorded in the basic year has to prove that the entry is incorrect. To put it differently, the burden lay upon Smt. Gulabi to prove that she being daughter of Aftee, her name should be recorded.
Now, let us see the evidence filed by her in this regard. She has examined herself and one Babban, a village fellowman. Statement of Babban has neither been relied upon nor referred either by the First Appellate Court or the Revisional Court. A copy of the said statement is also not before this Court. The another statement is that of Smt. Gulabi. This is all, so far as oral testimony is concerned. So far as the documentary evidence is concerned, a copy of one birth register has been filed to show that a daughter was born to Algoo on 27 February, 1939. Birth register is the sole basis of claim of Smt. Gulabi. Two courts below have proceeded on the footing that in the absence of any evidence to show that the said issue of Algoo did not survive, it is Gulabi who is daughter of Algoo. Copies of voter-list of the year 1966 and 1973 were also produced to show that Gulabi is residing in House No. 44 and the present petitioners are residing in House No. 43.
Section 50 of the Evidence Act provides that when the Court has to form an opinion as to the relationship of one person to another the opinion expressed by conduct as to the existence of such relationship of any person who has special means of knowledge on the subject of that relationship is a relevant fact. The Apex Court in Dolgobinda Paricha v. Nimai Charan Misra, AIR 1959 SC 914 with reference to Section 50 has laid down the following requirements of section:-
“(I) there, must be a case where the court has to form an opinion as to the relationship of one person to another; (2) in such a case, the opinion expressed by conduct as to the existence of such relationship is a relevant fact; (3) but the person whose opinion expressed by conduct is relevant must be a, person who as a member of the family or otherwise has special means of knowledge on the particular subject of relationship; in other words, the person must fulfil the condition laid down in the latter part of the section. If the person fulfils that condition, then what is relevant is his opinion expressed by conduct. Opinion means something more than more retailing of gossip or of hearsay; it means judgment or belief, that is, a belief or a conviction resulting from what one thinks on a particular question. Now, the “belief” or conviction may manifest itself in conduct or behaviour which indicates the existence of the belief or opinion. What the section says is that such conduct or outward behaviour as evidence of the opinion held is relevant and may, therefore, be proved.
Section 50 does not make evidence of mere general reputation (without conduct) admissible as proof of relationship.
(Emphasis supplied)
The conduct or outward behaviour must be proved in the manner laid down in s. 60; if the conduct relates to something which can be seen, it must be proved by the person who saw it; if it is something which can be heard, then it must be proved by the person who heard it; and so on. The conduct must be of the person who fulfils the essential conditions of S. 50, and it must be proved in the manner laid down in the provisions relating to proof. That that portion of s. 60 which provides that the person who holds an opinion must be called to prove his Opinion does not necessarily delimit the scope of S. 50 in the sense that opinion expressed by conduct must be proved only by the person whose conduct expresses the opinion. Conduct, as an external perceptible fact, may be proved either by the testimony of the person himself whose opinion is evidence under s. 50 or by some other person acquainted with the facts which express such opinion, and as the testimony must relate to external facts which constitute conduct and is given by persons personally acquainted with such facts, the testimony is in each case direct within the meaning of s. 60. This is the true inter-relation between s. 50 and s. 60 of the Evidence Act. While S. 50 affords an exceptional way of proving a relationship and by no means prevents any person from stating a fact of which he or she has special. means of knowledge does not imply that the person whose opinion is a relevant fact cannot be called to state his own opinion as expressed by his conduct and that his conduct may be proved by others only when he is dead or cannot be called. S. 50 does not put any such limitation. AIR 1954 SC 601 Ref:”
Keeping the above proposition of law in the back of mind, let us try to find out as to whether the evidence led by Smt. Gulabi is relevant on the touch stone of Section 50 of the Evidence Act. Oral evidence of Gulabi itself is not sufficient to establish her relationship with smt. Aftee in the absence of any corroborative material. Interestingly, she in cross-examination, could not state the names of relatives. She could not state the names of her phoopha, nana and other relatives. This is indicative of fact that the lady is an imposter. This part of the evidence has been dealt with in very cursory manner by the two courts below without giving it due weightage. The ignorance of the names of close relatives goes a long way to show that she is an imposter.
They have proceeded on the footing that Smt. Gulabi being a villager is not supposed to know the names of her relatives. It is absurd. Every person is supposed to know the names of close relatives of her family members. The said approach is obviously faulty when the relationship of Smt. Gulabi with Smt. Aftee was in issue and Smt. Gulabi claims herself daughter of Smt. Aftee. She is supposed to know the names of her close relatives illiteracy apart.
The another witness examined by her is Babban, who is a villager and is not a relative of the family and nothing has been said that he had any special means of knowledge about the relationship in issue. Statement of this witness has not been made relied upon by the courts below and as such it is not necessary for me to say anything further.
Only documentary evidence which has been relied upon by the two courts below is a copy of birth register. A bare perusal of the said document would show that on the face of it, this document does not inspire any confidence. Against the entry daughter figure-1 is mentioned and against the entry son figure-1 is mentioned and total has also been mentioned as figure one. It is interesting to note the remark of the officer who issued the said certified copy. It is dated 17 January, 1978. He has noticed the discrepancy and remarked that in the original register, against the name of Algoo, one daughter has been shown.
This document is the sheet anchor of Smt. Gulabi's case and in the absence of any corroborative evidence, such as evidence of relatives of the family or of close friends, is not sufficient to hold that she is daughter of Aftee. The attending facts and circumstances of the case also do not support the case of Smt. Gulabi. On the own showing of Smt. Gulabi, she is residing in the adjoining house as per voter list but she never claimed cotenancy at any point of time, after death of Smt. Aftee. The courts below have proceeded on wrong footing that the burden was upon the petitioners to prove that Smt. Gulabi is daughter of Sita which they failed to prove and therefore, it was held by them that Smt. Gulabi is daughter of Aftee. Taking the evidence of Smt. Gulabi on its face value as correct, it is not sufficient to establish her relationship as daughter of Smt. Aftee. The evidence being insignificant would not shift the burden on shoulders of the petitioners. There appears to be no reason as to why Smt. Gulabi did not examine any of her relatives in support of her case. The evidentiary value of voter-list of the year 1966 and 1973 is also of inconsequential nature. The voter-list is prepared on the statement and particulars furnished by such person. It is in the nature of self serving evidence. It is not safe to place much reliance upon it, in such matters. However, our legal system has always emphasis on value, weight and quality rather than quantity, multiplicity or plurality of witness. Nothing has come on record to connect Smt. Gulabi with the said birth entry.
The courts below have non suited the petitioners as Jhagroo in his deposition according to them, has accepted the case of the contesting respondent.
As noticed herein above, the original record of the case was misplaced. The record was reconstructed with the help of copies filed by the parties. There is a discrepancy in one sentence so far as the statement of Jhagroo is concerned. The case of Smt. Gulabi is that the Jhagroo has admitted that she is daughter of Aftee while there is no such statement in the copy filed by the petitioners. Deputy Director of Consolidation proceeded to accept the copy of statement of Jhagroo which was produced by Smt. Gulabi, as correct. Obviously, before admission, cannot be treated as evidence, it should be clear and unequivocal. An admission is substantive evidence. What weight is to be attached to it, is different matter as stated by the Apex Court in Bharat Singh v. Bhagirathi, AIR 1966 405. An admission is not conclusive and the parties can show that it is not true. These are the principles which should bear in mind while dealing with the question of admission.
A copy of statement of Jhagroo has been annexed along with the writ petition. There is no dispute except with one sentence with regard to other parts of statement. The opening sentence therein is that Gulabi is not daughter of Smt. Aftee. She is daughter of Sita. Sita is resident of village Bahorpur. She is related to Bhola with whom the relation (of the witness) is not good and they are litigating with him. He has further stated that after death of Aftee, the name of Gulabi was never mutated and he does not know Gulabi at all. Gulabi has no concern with the disputed property. In cross-examination, this witness states that Gulabi's father is not Algoo. He further states that he does not know Gulabi.
A reading of statement as a whole does not show that the alleged admission of the witness is clear and unequivocal. A sentence cannot be read out of context. Each and every part of statement of witness has to be given due weight. Even in the earlier part of cross-examination, the witness is firm in his statement that Gulabi is not daughter of Aftee. This being so, it is too much to say that there is an admission made by the witness when the correctness and veracity of the copy of statement itself is a big issue before the Court. The only issue in the entire litigation is whether Gulabi is daughter of Aftee or not. Had there been an admission in this regard, there was no necessity of long drawn litigation. Stray sentences in cross-examination does not amount to an admission. Admissions are not conclusive proof of the facts admitted. To arrive at such a conclusion, there must be unequivocal admission on which a court can base its decision. The upshot of the discussion is that the judgment cannot be solely based on the alleged admission, when its existence is doubtful. It would be travesty of justice.
The order of the Assistant Settlement Officer, Consolidation is based on the birth register filed by Smt. Gulabi. He proceeds on the footing that the petitioners could not prove the death of said child of Algoo. Therefore, Gulabi is daughter of Aftee. The order of the Deputy Director of Consolidation is based on the footing that the petitioners have failed to prove that Gulabi is not daughter of Algoo and Aftee. Both these authorities have approached the case with wrong angle. Gulabi is required to establish that she is daughter of Aftee first, which she failed.
A person who asserts a particular fact has to prove the same in view of the provisions as contained in Section 101 of the Evidence Act. The burden of proving fact always lay upon the person who asserts. Until burden is discharged the other party is not required to be called upon to prove his case. Here, Smt. Gulabi has failed to discharge the initial burden lay upon her. She was before the consolidation court as a plaintiff. She was required to produce appropriate evidence to prove her own case.
In State of Bihar v. Sri Radha Krishna Singh, AIR 1983 S.C 684, the Apex Court has laid down that oral evidence of a witness with to proof of pedigree is bound to be hearsay and their evidence is admissible as an exception to the general rule where hearsay evidence is not admissible.
In order to appreciate the evidence of such witness, the following principles should be kept in mind:
“(1) The relationship or the connection however close it may be, which the witness bears to the persons whose pedigree is sought to be deposed by him.
(2) The nature and character of the special means of knowledge through which the witness has come to know about the pedigree.
(3) The interested nature of the witness concerned.
(4) The precaution which must be taken to rule out any false statement made by the witness post litem motam or one which is derived not by means of special knowledge but purely from his imagination, and
(5) The evidence of the witness must be substantially corroborated as far as time and memory admit.”
It is correct that a writ court cannot examine the finding of fact but it can certainly examine whether the decision making process adopted by the courts below to it is correct or not.
In the case of State of U.P v. Maharaja Dharmander Prasad Singh, AIR 1989 SC 997, it has been laid down as follows:
“When the issue raised in judicial review is whether a decision is vitiated by taking into account irrelevant, or neglecting to take into account of relevant, factors or is so manifestly unreasonable that no reasonable authority, entrusted with the power in question could reasonably have made such a decision, the judicial review of the decision making process includes examination as a matter of law, of the relevance of the factors. In the present case, it is, however, not necessary to go into the merits and relevance of the grounds having regard to the view we propose to take on the point on natural justice.”
In my considered view, the case in hand squarely falls under the above parameters.
Upshot of the above discussion is that Smt. Gulabi has failed to produce any reliable, cogent and admissible evidence oral or documentary to establish that she is daughter of Smt. Aftee either. Two courts below committed manifest error of law in accepting the claim of respondent no. 3 on inadmissible evidence and as such the judgments and orders of the courts below cannot be allowed to stand.
During the course of argument, learned counsel for the petitioners produced a photocopy of extract of Lucknow Law Times Part-V, Page-51, Entry 53 to show that the village came under consolidation operation in pursuance of the notification dated 20 July, 1973. However, copy of the said notification was not made available. Learned counsel for the petitioners submits that taking a clue that the village is going to be notified for consolidation operation, voter list etc. were manipulated. It is not necessary to say anything in this regard.
In the result, the writ petition succeeds and is allowed. The impugned orders dated 28.8.1976 and 1.10.1981 passed by the Assistant Settlement Officer, Consolidation and Deputy Director of Consolidation are, hereby, quashed and the order of the Consolidation Officer dated 18 October, 1975 is restored back.
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