Judgment:
ORDER
Sheema Ali Khan, J.
1. The plaintiff-appellant has filed this second appeal against the judgment of affirmance. The substantial question of law which arise in this appeal are as follows:
1. Whether the courts below were justified in holding that Ext. B/1 the alleged sale deed dated 23.6.80 in favour of defendant-respondent No. 2 was executed by Mostt. Gujja w/o Late Natu Mian, when defendants witnesses themselves admitted that Mostt. Gujja died 7-8 years before the death of her husband Natu Mian, who had died much before 1980?
2. Whether in absence of any mutation or receipt in the names of Natu Mian and Mostt. Gujja since after 1956, the lower courts legally held that they were alive and that the latter had a share in the suit property?
3. Whether the courts below were justified in relying upon the sale deeds of defendants both dated 23.6.80 (Ext. B and B/1), which were subsequent to the plaintiffs registered deed dated 4.6.1980 (Ext. 2)?
4. Whether the entry in the Revisional Survey Khatian published in 1985 only in the name of Abdul Samad could legally disprove the plaintiff's case of acquisition from him by registered deed of 1980, when the survey proceeding had started much earlier in the year 1976-77?
2. The case of the plaintiff-appellant briefly stated is that a suit has been filed by Bibi Fatma, w/o Abdul Samad for a declaration that she is the owner of the lands and house which are the subject matter of the suit and further to hold that the sale deed executed by Abdul Hamid and Mostt. Gujja is illegal and void.
3. The case of the plaintiff is that the suit lands belong to Natu Mian. It is stated that Mostt. Gujja predeceased Natu Mian. Natu Mian had two sons, Abdul Samad (the wife of Abdul Samad is the appellant in this appeal) and Abdul Hamid. Abdul Hamid disappeared during his childhood and has never returned to his home. By oral gift in the year 1956, Natu Mian transferred all the properties to his son Abdul Samad. Abdul Samad transferred the suit lands by a registered deed of BAIMOKSA dated 04.06.1980 and 05.01.1982 to his wife, the plaintiff-appellant. Abdul Samad applied for mutating his name in the Municipal Corporation and thereafter began to pay rent to the Municipal Corporation. In the year 1980, one person emerged in mohalla Khanjarpur who claimed to be the elder son of Natu Mian and the defendants claim that they had purchased the said land from Natu Mian and also claim that they purchased the two-annas share of the lands from Mostt. Gujja. The plaintiff-appellant learnt on 12.01.1988 that the defendants had purchased part of the lands belonging to her and were attempting to dispossess her from the said lands.
4. The case of the defendant is that they admit that Natu Mian is the original owner of the land. According to them, Abdul Hamid had not disappeared and was very much alive and also that the wife of Natu Mian, Bibi Gujja was alive till 1980 and she had executed gift in favour of defendant No. 2. The defendants specifically deny the story of oral gift in the year 1956 and claim that Abdul Hamid had seven annas share which he had transferred to defendant No. 1. It is also admitted that the proceedings under Section 107 of the Code of Criminal Procedure was instituted by the plaintiff-appellant which was later on converted into proceedings under Section 145 of the Code of Criminal Procedure which was ultimately dismissed. The plaintiff-appellant had filed a criminal revision against the dismissal of 145 proceedings which was ultimately allowed.
5. The Trial Court has disbelieved the evidence of the witnesses with respect to the oral gift and also with the evidence that Bibi Gujja had died prior to the death of her husband. The court has rejected the entries of the Municipal Corporation, the name of the plaintiffs husband and also held that Abdul Hamid was alive and have thus dismissed the suit. The Appellate Court for similar reasonings has upheld the findings of the Trial Court.
6. I shall first deal with the most important aspect as to whether the elder son of Natu Mian was traceless since his childhood. The Trial Court has also framed an issue whether Bibi Gujja was the wife of Natu Mian. Apparently during the hearing of the suit and the appeal, there appears to be no dispute with respect to this fact that Bibi Gujja was the wife of late Natu Mian. The case of the plaintiff-appellant is that Natu Mian had orally gifted the lands to her younger son Abdul Samad and that his wife Mostt. Gujja predeceased him. Natu Mian is said to have died in the year 1957. The defendants, on the other hand, claimed that Abdul Hamid is alive and that Bibi Gujja was also alive and she along with Abdul Hamid had executed sale deeds in their favour. The relevant witnesses on behalf of the plaintiff on this aspect are PWs 2, 4 and 6. PW 2 has stated that Bibi Gujja died 7-8 years prior to the death of Natu Mian and that Abdul Hamid was traceless since his childhood. Similarly, PW 3 has also supported the case of the plaintiff and it has wrongly been mentioned by the Courts below that PW 3 has stated that Natu Mian died in the year 1982 whereas Bibi Gujja died in the year 1981. No such statement has been made by PW 3 and PW 7. They support the case of the plaintiff and state that Gujja predeceased her husband and Abdul Hamid disappeared and was traceless since his childhood. Therefore, as far as the plaintiffs witnesses are concerned, there is no inconsistency with respect to their evidence regarding two facts, firstly that Gujja predeceased her husband and secondly that Abdul Hamid disappeared since his childhood.
7. On the other hand, the defendant witness No. 1 states at paragraph 14 that there was a partition of the house and that Abdul Hamid used to live separately and his entry in the house was also separate. This witness states that he had seen Abdul Hamid 11 years back in mohalla Khanjarpur and that Mostt. Gujja died in the year 1982. This witness has also produced the voters list (Exhibit-U) of the year 1975 which would indicate that Mostt. Gujja was the wife of Natu Mian. On the basis of the aforesaid evidence, the Trial Court has held that Mostt. Gujja died about 1981-82. The Court has relied heavily on the voters list of 1971 and 1975 to hold that the name of Abdul Hamid was included in the voters list and, therefore, Abdul Hamid was alive.
8. In my opinion, the findings of the Trial Court and the Appellate Court can not be upheld, Firstly because the plaintiffs witnesses have categorically stated and there is no scope for doubting their statement that Mostt. Gujja predeceased her husband and that Abdul Hamid disappeared during his childhood. The defendants' evidence on this aspect of the matter does not inspire confidence and is insufficient as only one witness has come up to say that Abdul Hamid was alive. The main thrust of the defendants argument is the voters list which is basically been produced to show that Mostt. Gujja was the wife of Natu Mian and her name was in the voters list of 1971 and 1975. Even if this aspect is accepted by this Court, then also it would not lead to the conclusion that she was alive till the year 1971-75 and could have thus executed sale deeds in favour of the defendants. The other argument which has been advanced on behalf of the defendants is that the voters list discloses that the name of Abdul Hamid in the voters list presupposes that Abdul Hamid was alive. Mr. Rai on behalf of the defendants relied on the case of Kirtan v. Shakur reported in 1958 Ori 158 (FB). The question which arose in the aforesaid case is whether the Voters List is a public document? It has been held by the Full Bench that the Electoral Roll is a public record under Section 35 of the People's Representation Act and a public document under Section 74(1)(iii) of the Evidence Act. The Court by declaring the Electoral Roll as a public document has basically held that since it is prepared by an authority empowered under the People's Representation Act to perform a public duty, and therefore 'on account of their public nature' their authenticity need not be confirmed by the usual tests of truth, namely, the examination and cross-examination of the persons who prepared them.
9. I do not have any quarrel with the decision of the Full Bench aforesaid, in holding that the voters' list is a public document and can be marked as exhibit without formal proof, however, the contents thereof are rebuttable.
10. The contents of the voters' list have to be proved if put to challenge as in the instant case. I may further explain my view and also take judicial notice of the fact that it is undisputed that the name of several persons does not find place in the voters' list, however, absence of their names does not mean that they are not alive, conversely, one finds that the names of the persons who are dead or have travelled out of the country are included in the voters' list, which cannot lead this Court to hold that a person is still alive or that he is a voter. Therefore, essentially, even if the voters' list is treated to be a public document, not requiring formal proof, if cannot be held that the contents therein are sacrosanct. I shall explain my view in the context of the facts of the present case. The Voters' list shows that Mostt. Gujja was the wife of Nathu Mian. This aspect is not challenged by either party. However, there is a clear cut evidence to show that she had predeceased her husband Nathu Mian.
11. The second issue is with respect to the oral gift. The plaintiff has examined PWs 2, 3, 6 and 9 to show that Natu Mian had gifted the lands and house in question to his younger son Abdul Samad about 20 years ago i.e. sometime in the year 1956. The evidence of PW 2 has been rejected by the Court on the ground that he could not state the exact date of the oral gift. I do not think that it would be very relevant to state the exact date as PW 2 has stated that the oral gift was made when it was neither too hot nor too cold and not in the rainy season. It is quite possible that the witness could not remember the exact date, time or year of the oral gift as more than 20 years have passed since the oral gift was made. It has further been stated by PW 2 that she was in possession of the entire lands as a result of the oral gift. Similarly, PW 3 has also stated that gift was made 25 years back and after the oral gift was made, Natu Mian died within a fortnight. The Court has rejected the evidence as stated earlier because the witness could not give the name of the persons who were present at the time of making of the oral gift. PW 2 has stated that he was present when the gift was made. PW 3 also named some persons who were present at the time when the gift was made. The Trial Court and the Appellate Court have held that the plaintiffs husband did not come into the possession on the basis of the oral gift. I think that the Court is misguided in coming to this fact as all the witnesses have stated that the plaintiff was in possession of the lands and the house and apart from one witness from the defendants side, none of the witnesses have supported the facts that the defendants was in possession. Of course, according to the plaintiffs, Abdul Hamid had become traceless much earlier during his childhood and in the life time of his father, and therefore there is no question that defendants could claim possession through Abdul Hamid. It is the case of the plaintiffs that the defendants dispossessed them during the riots in Bhagalpur.
12. In order to establish his case, the plaintiff has brought on record Exhibit-E series which are documents to show that the name of Abdul Hamid was entered in the municipal records. The proceeding for recording the name in the municipal records of rights began in the year 1975-76. At that time Abdul Samad filed an application that his name should be recorded instead of the name of his father. At that stage, Abdul Hamid did not file any application or objection which would have been the natural conduct of a person if he was alive and in possession of the lands and the house in question. The records of right are prepared after inspection and notice and as such this Court feels that it is a circumstance in favour of the plaintiff to show that Abdul Hamid was infact not alive as he took no steps to get himself recorded in the municipality at Bhagalpur. The final publication of the records was issued in 1985 and till that date, no other party filed any objection in the municipality to stake the claim with respect to their possession. The Trial Court and the Appellate Court have approached this issue from a different angle. According to the Courts below, the fact that no steps were taken from 1956 to 1976 is against the plaintiff. I do not think it a correct approach on the ground that the reasoning given by the Courts below would equally applied to both Abdul Hamid and Abdul Samad. The fact that Abdul Samad took steps to get his name recorded and Abdul Hamid did not has to be held as circumstance in favour of Abdul Samad.
13. It would also be relevant to state that not only did Abdul Hamid not file any objection or application to be recorded with the municipality but his mother Mostt. Gujja also did not take any steps to get her name mutated in the municipality which would go to show that infact Mostt. Gujja was not alive at that time.
14. The discussions aforesaid answer the second and fourth issue which has been framed by this Court that infact since the names of Abdul Hamid and Mostt. Gujja were not recorded in the municipality, it would be presumed that they were not alive and, therefore, they had taken no steps in that direction.
15. Lastly, it would be relevant to refer to the proceedings under Section 145 of the Code of Criminal Procedure which is the order sheet of Misc. Case No. 457 of 1980 (Exhibit-11). The Courts below have held on the basis of Exhibit-1 that Abdul Hamid appeared before the Court and filed his haziri and vakalatnama which would indicate that Abdul Hamid was alive in 1980 and, therefore, he had transferred his share of the suit property in favour of the defendants. On the other hand, learned Counsel for the appellant had taken me to the order sheet which indicate that all parties i.e. the defendants and others appeared during the proceeding but at no stage has it been recorded that Abdul Hamid appeared in the 145 proceeding which would be apparent on perusal of Exhibits 6 and 6a, and as such, the Courts have wrongly held that Abdul Hamid was alive on the basis of the fact that Courts wrongly presumed that he had appeared during the proceedings of Misc. Case No. 457 of 1980.
16. Regarding the rent receipts provided on behalf of the plaintiff to show that they were in possession. It may be stated here that those rent receipt have been issued after the sale deeds were executed by someone posing himself to be Abdul Hamid and Mostt. Gujja. Even the defendants witnesses have stated that Mostt. Gujja had predeceased her husband and in no circumstances, this Court can hold that she was alive and executed a sale deed in favour of the defendant No. 2 with respect to her alleged two annas share. I may mention here that the Courts have presumed that there was a partition between the two brothers and their mother. This is nobody's case that there was a partition and that the two brothers came in separate share of their portions of land and, therefore, this observation of the Courts has only been considered to be rejected. Learned Counsel appearing on behalf of respondents has submitted that this Court ought not consider the evidence in view of the well settled law which has recently been reiterated in the case of Narayahnan Rajendran and Anr. v. Lelishmy Sarojini and Ors. reported in 2009 AIR SC WEEKLY 2357. This Court finds that issue No. 2 has been framed with respect to the date of death of Mostt. Gujju and, therefore, this Court has referred to the relevant facts regarding the date of death of Mostt. Gujju.
17. On the basis of the aforesaid discussions, this Court finds that (a) Mostt. Gujja predeceased her husband, (b) the oral gift was validly made in favour of Abdul Samad, (c) there is no evidence to show that Abdul Hamid was alive or was present in 1980 when the sale deeds were executed in favour of the defendants and finally (d) on the basis of the fact that the name of plaintiffs late husband was entered in the municipal corporation in the year 1985 at the time of final publication can not be a circumstance to reject the case of the plaintiff.
18. In effect, therefore, the plaintiffs claim is allowed and it is held by this Court that the plaintiff has the title over the suit lands and is entitled to the possession of the suit premises and that the sale deeds executed by Abdul Hamid dated 23.06.1980 and the sale deed executed in favour of Sushil Rajak are void ab initio as their vendor were not alive or present to execute the sale deeds.
19. In the result, the judgments dated 18.01.1997 and 19.09.1995 passed in Title Appeal No. 94 of 1995 and Title Suit No. 98 of 1988 respectively are set aside and the appeal is allowed.