# Nageshwar Prasad & Anr. Plaintiffs/ v. Santosh Kumar Defendant/

- **Citation:** (2019) 2 ILRA 710
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-30
- **Case number:** Second Appeal No. 1052 of 1991
- **Bench:** Harsh Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nageshwar-prasad-anr-plaintiffs-v-santosh-kumar-defendant-44734
- **Pages:** 9

## Headnote

A. Registration of Births and Death Act, 1969 -
Section 17 - read with Indian Evidence
Act,1872 - Section 76 - Generally Certified
copies
of
public
documents
carries
presumption of correctness of its entries - but if
there is tampering and overwriting there can
be no presumption of genuineness and
correctness of entries of "Birth Register".

Since the very basis of entry of Birth Register
about death of Nawal Kishor on 27.09.1984 is
not proved in view of tampering in 'Death
Certificate' the presumption of correctness of
certified copy of 'Birth Register' duly issued under
section 17 (2) of Birth Act may not be drawn
under Section 76 of Evidence Act. (Para 17)

B. Practice and Procedure - Plaintiff's
application - for obtaining report of
fingerprint and handwriting expert - for
comparison of thumb impressions of
Nawal Kishor over the sale deed in
favour of defendant, with his thumb
impression over other exemplar sale
deed filed by plaintiff - Rejected - Held -
No illegality as No relief for cancellation
of sale deed was sought and despite
specific plea about execution of sale
deed on 19.10.84 by Nawal Kishor in
favour
of
defendant
in
written
statement, there are no pleadings by
plaintiff by amendment of plaint or by
filing replication, that sale deed has been
obtained by impersonation after death of
Nawal Kishor. (Para 19)

Second Appeal Dismissed (E-5)

## Text

710 INDIAN LAW REPORTS ALLAHABAD SERIES

34. No order as to costs.
----------

(2019)10ILR A 710

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.08.2019

BEFORE

THE HON'BLE HARSH KUMAR, J.

Second Appeal No. 1052 of 1991

Nageshwar Prasad & Anr.
 ...Plaintiffs/Appellants
Versus
Santosh Kumar ...Defendant/Respondent

Counsel for the Appellants:
Sri R.N. Upadhyay, Sri A.K. Bind, Sri A.N.
Verma, Dr. Madhu Tandon, Sri G.N. Verma,
Sri H.N. Shukla, Sri H.O. Khare, Sri R.K. Bind,
Sri Rahul Mishra, Sri S.K. Yadav, Sri S.K.
Tyagi, Sri S.R. Yadav, Sri U.N. Shukla

Counsel for the Respondent:
Sri Sankatha Rai, Dr. Vinod Kumar Rai, Sri
Siddharth Niranjan

A. Registration of Births and Death Act, 1969 -
Section 17 - read with Indian Evidence
Act,1872 - Section 76 - Generally Certified
copies
of
public
documents
carries
presumption of correctness of its entries - but if
there is tampering and overwriting there can
be no presumption of genuineness and
correctness of entries of "Birth Register".

Since the very basis of entry of Birth Register
about death of Nawal Kishor on 27.09.1984 is
not proved in view of tampering in 'Death
Certificate' the presumption of correctness of
certified copy of 'Birth Register' duly issued under
section 17 (2) of Birth Act may not be drawn
under Section 76 of Evidence Act. (Para 17)

B. Practice and Procedure - Plaintiff's
application - for obtaining report of
fingerprint and handwriting expert - for
comparison of thumb impressions of
Nawal Kishor over the sale deed in
favour of defendant, with his thumb
impression over other exemplar sale
deed filed by plaintiff - Rejected - Held -
No illegality as No relief for cancellation
of sale deed was sought and despite
specific plea about execution of sale
deed on 19.10.84 by Nawal Kishor in
favour
of
defendant
in
written
statement, there are no pleadings by
plaintiff by amendment of plaint or by
filing replication, that sale deed has been
obtained by impersonation after death of
Nawal Kishor. (Para 19)

Second Appeal Dismissed (E-5)
(Delivered by Hon'ble Harsh Kumar, J.)

1. The instant second appeal has
been filed against impugned judgment
and decree dated 13.2.1991 passed by
Additional District Judge, Allahabad in
Civil Appeal No.267 of 1987, arisen out
of Civil Suit No.770 of 1986 "Nageshwar
Prasad and another Vs. Santosh Kumar".

2. The appeal was admitted vide
order dated 10.4.2007 on following two
substantial questions of law:-

"1.Whether the Courts below having
admitted three documents namely, Papaer
No.10/Ga, 15/Ga and 16/Ga by written
orders of Sri Chandra Prakash, XIth
Additional District Judge, Allahabad
dated 18.04.1999 and the said documents
were 'Janm Evam Mrityu Register'
regarding
family
of
Nawal
Kishor
deceased the date of death is shown as
27.09.1984, Mst. Sonpatti, Widow of
deceased Nawal Kishor. The second is the
'Kutumb Register' of Nawal Kishor which
shows Sonpatti is his widow, Gulab Kali
W/o
Nageshwar
Prasad
(Appellant),
Phool Kali W/o Prem Shanker, Smt. Anar
2 All. Nageshwar Prasad & Anr. Vs Santosh Kumar
711
Kali W/o Santosh who admittedly are
three daughters of Nawal Kishor. The
third documents is the family register of
Trivedi Prasad who appeared as witness
for Defendant. The name of witness was
given by him was Ram Baran in fact he
was not Ram Baran but in fact he was
Trivedi Prasad R/o Village-Sansarpur,
Tehsil-Koraon, District-Allahabad. The
family register of Ram Baran witness the
question and answering regarding him
obtained by the Appellant and reply given
by the department from which it is
admitted that witness who said that his
name is Ram Baran S/o Jagat Dhari born
on 25.02.1954 and is illiterate. In fact his
name is Trivedi Prasad mentioned above.
It has been filed to say that Ram Baran
who was a witness to the sale deed of the
Defendant, in fact never signed before the
Registrar as witness and that said Ram
Baran is not the son of Jagat Dhari
instead he dubbed the Court. In fact his
name is Trivedi Prasad S/o Jagat Dhari.
The above said documents have not been
considered in the judgment of the Lower
Appellate Court, and whether the Lower
Appellate Court were justified in ignoring
the above said material documentary
evidence?

2. Whether the Courts below were
justified in accepting the sale deed which
was not proved according to law in as
much as none of the marginal witnesses
have proved the said sale deed"

3. During hearing, the parties
counsel submitted that the substantial
questions of law framed earlier on
10.04.2007, at the time of admission of
appeal
are
very
lengthy
and
also
ambiguous to some extent. It was found
appropriate
to
reframe
substantial
questions of law for just and appropriate
disposal of appeal and upon submissions
made by parties counsel following three
substantial questions of law were framed,
replacing
the
earlier
framed
two
substantial questions of law:-

"1.Whether the courts below acted
wrongly and illegality in disbelieving
death certificate of Nawal Kishore as well
as entries in the Birth and Death Register
and Family Register with regard to his
death, from which it is fully proved that
Nawal Kishore had died on 27.09.1984.

2. Whether the lower appellate court
acted wrongly in not relying on the
additional evidence filed under Order XLI
Rule 27 of CPC per list 11/C as paper
No.12C, 13C and 14C viz., (i) copy of
Family Register, (ii) question-answer
regarding Ram Baran and (iii) Life
Insurance Policy of plaintiff appellant no.
2.

3. Whether the courts below acted
wrongly and illegally in relying on the
sale deed dated 19.10.1984 in favour of
defendent-respondent, though it was not
proved in accordance with law."

4. The brief facts relating to the case
are that plaintiffs-appellants Nageshwar
and Gulabkali (hereinafter referred as
plaintiffs) filed Civil Suit No.770 of 1986
against
defendant-respondent
Santosh
Kumar (hereinafter referred as defendant)
for obtaining a decree of permanent
injunction restraining the defendant from
interfering in peaceful possession of
plaintiffs over land in suit Plot No.287,
area, 11 Bigha, 17 Biswa and 13 Dhur
situated in Mauja Bhaluha Tappa Manda,
Pargana-Kheragarha, District-Allahabad,
with the allegations that Nawal Kishor
son of Ram Sunder the original tenure
holder of land in suit, died on 27.9.1984
leaving behind him his widow Smt.
Sonapatti as his legal heir who succeeded
712 INDIAN LAW REPORTS ALLAHABAD SERIES
him and became owner/bhumidhar in
possession of land in suit and executed
two registered sale deeds of land in suit in
favour of plaintiffs on 5.6.1985, hence
plaintiffs
are
owners/bhumidhars
in
possession of the property in suit. It was
also contended that on 4.8.1986, without
any right, title or interest defendant
attempted to take forcible possession over
the property in suit, hence, arose cause of
action for filing suit for injunction.

5. The sole defendant filed written
statement denying all the allegations of
plaint and contended that Nawal Kishor
was Bhumidhar in possession of the land
in suit till 19.10.1984, when he executed a
registered sale deed of land in suit in
favour of defendant for a valuable
consideration of Rs.40,000/- and handed
over actual physical possession over the
land to defendant; that Nawal Kishor had
three daughters out of whom Ist the eldest
one Gulabkali, the plaintiff no.2 was
married to plaintiff no.1 Nageshwar
Prasad, IInd one Phoolkali was married to
Prem Shankar and IIIrd the youngest one
Anarkali was married to defendant; that
Nawal Kishor died much after execution
of
the
registered
sale
deed
dated
19.10.1984 in favour of defendant and
plaintiff no.1 has dishonestly got executed
two sale deeds from his mother-in-law
Smt. Sonpatti on 5.6.1985, in favour of
himself and his wife, which are without
consideration, illegal, ineffective and
without authority as Smt. Sonpatti never
succeeded land in suit and never became
bhumidhar in possession.

6. On parties' pleadings, learned trial
Court framed as many as five issues viz.
"(1) whether suit is under valued and
Court fee paid is insufficient, (2) whether
suit is barred by provisions of Section 331
of U.P. Z.A. & L.R. Act, (3) whether
plaintiffs are owners in possession of the
disputed property, (4) whether Nawal
Kishor died on 27.9.1984 as alleged in
para 2 of plaint, and (5) to what reliefs, if
any, are the plaintiffs entitled"

7. After taking evidence of parties,
trial Court decided issue no.1&2 in
negative in favour of plaintiffs and
holding that plaintiffs have failed to prove
actual date of death of Nawal Kishor or
his death having taken as copy of Birth
Register having not been countersigned as
per provisions of Section 109-A of
Panchayat Raj Act, is inadmissible in
evidence and place on 27.9.1984, decided
issue no.4 in negative against the
plaintiffs. On issue no.3, trial Court came
to the conclusion that plaintiffs have
failed to prove their right, title and
possession over land in suit and deciding
issue no.3 in negative against the
plaintiffs, dismissed plaintiffs' suit for
injunction.

8. Feeling aggrieved, plaintiffs
preferred Civil Appeal No.267 of 1987
before District Judge, Allahabad which
was dismissed by XIth Additional District
Judge, Allahabad by impugned judgment
and decree dated 13.2.1991, hence, the
plaintiffs have approached this Court by
way of instant second appeal which has
been admitted on 10.4.2007 on two
substantial question of law mentioned
above, which were replaced with three
substantial questions of law reframed
during hearing of appeal on 5.8.2019.

9. Heard Shri Rahul Mishra,
Advocate for appellants and Shri Dharam
Pal Singh, Senior Counsel assisted by Dr.
Vinod Kumar Rai for respondent at length
on substantial questions of law framed
2 All. Nageshwar Prasad & Anr. Vs Santosh Kumar
713
and reframed and perused the record as
well as lower court record summoned in
appeal.

10.

Learned
counsel
for
plaintiff/appellant submitted that trial
Court as well as lower appellate Court
have acted wrongly and illegally in not
relying on public documents viz. the copy
of "Birth and Death Register" (hereinafter
referred as "Birth Register") as well as
copy
of
Family
Register
duly
corroborated by death certificate issued
by medical officer at the time of death of
Nawal Kishor; that duly attested true
copies of "Birth Register" and "Family
Register" of Nawal Kishor on record
show
that
Nawal
Kishor
died
on
27.9.1984 and the entry about his death
was
made
in
"Birth
Register"
on
5.10.1984; that copy of "Birth Register"
issued under provisions of Section 17 of
Registration of Births and Death Act,
1969, hereinafter referred as "Birth Act",
was a public document which carries
presumption of correctness of its entries
under provisions of Section 76 of Indian
Evidence Act; that all the witnesses of
plaintiff consistently stated on oath that
Nawal Kishor died on 27.9.1984; that
there is no iota of evidence to the
contrary, to disbelieve the uncontroverted
on oath statements of plaintiffs' witnesses
and for believing that Nawal Kishor died
after 19.10.1984; that the defendant who
was none other than son-in-law of Nawal
Kishor could not dare to give any other
specific date of death of Nawal Kishor;
that the learned courts below acted
wrongly and illegally in disbelieving the
entry of "Birth Register" regarding death
of Nawal Kishor on 27.9.1984 merely on
the basis of copy of application paper
no.49(c)
dated
18.3.1987
(filed
by
defendant) allegedly given by village
Pradhan Tribhuvan Singh at P.S. Koraon
with averments that his signatures were
obtained by Ram Kishor, Lekhpal, Ram Ji
Tiwari, Secretary, Nyay Panchayat and
Prem Shankar Tiwari on 20.2.1987 on
certain blank papers (at the time of
obtaining signatures on official papers in
ordinary
course
of
business)
and
suspecting that above blank papers may
be used to show death of Nawal Kishor as
on 27.9.1984 instead of 27.10.1984; that
defendant could not dare to produce
Tribhuwan Singh or any other person to
witness box to prove paper no.49(c) and
the same is inadmissible in evidence; that
courts below acted wrongly in relying on
paper no.49(c) and in discarding the
public documents filed by plaintiffsappellant; that the contention of defendant
about execution of sale deed by Nawal
Kishor on 19.10.1984 in favour of
defendant is absolutely false and incorrect
as Nawal Kishor was not at all alive on
19.10.1984 and sale deed appears to have
been
obtained
by
defendant
by
impersonating some other person in place
of
Nawal
Kishor
(deceased);
that
undisputedly
Gulabkali,
the
eldest
daughter of Nawal Kishor, is wife of
plaintiff-appellant no.1 and the courts
below acted wrongly and illegally in
disbelieving the plaintiffs' case on mere
slip of tongue by PW-3 Smt. Sonpatti
wherein in place of Gulabkali she stated
that Phoolkali is married to plaintiff
Nageshwar; that in para 17 of written
statement denying the execution of
impugned sale deeds dated 6.8.1985 by
Smt. Sonpatti in favour of plaintiffappellant Nageshwar and his wife, the
defendant has specifically stated that
plaintiff no.2 Smt. Gulabkali is wife of
plaintiff no.1 Nageshwar; that it is fully
proved from the copies of family register
on record that Nawal Kishor (deceased)
714 INDIAN LAW REPORTS ALLAHABAD SERIES
left behind him his widow Smt. Sonpatti
and three daughters Gulabkali (eldest),
Phoolkali
(middle)
and
Anarkali
(youngest) who were married respectively
to Nageshwar Prasad (plaintiff no.1) Prem
Shankar (not party to suit) and Santosh
Kumar (defendant); that it was fully
proved from the evidence on record that
plaintiffs were bhumidhars in possession
over the property in suit by virtue of
registered sale deeds dated 5.6.1985
executed by Smt. Sonpatti in their favour,
after death of Nawal Kishor, her husband;
that impugned judgments and decrees
passed by two courts below are liable to
be set aside and by allowing present
appeal, suit of plaintiffs for a decree of
permanent injunction is liable to be
decreed with costs throughout.

11. Per contra, learned counsel for
defendant
supported
the
concurrent
findings of fact recorded in impugned
judgments and decrees passed by two
courts below and contended that learned
courts below have rightly disbelieved the
contention of plaintiffs regarding death of
Nawal Kishor on 27.9.1984; that as per
copy of "Birth Register" paper no.18 C on
record issued on 11.7.1985, the entry
about death of Nawal Kishor was made
on 5.10.1984 regarding his death on
27.9.1984; that in villages where people
do not care for getting the death or birth
registered, such a prompt registration of
death of Nawal Kishor, which is in
contradiction with oral evidence, creates
great suspicion on the correctness and
genuineness of above entry; that as per
plaint case, on death of Nawal Kishor, the
medical officer issued a death certificate
paper no.17-A on lower court record,
wherein there is deliberate overwriting
and tampering over date 27.9.84 wherever
it has been mentioned, at all the three
places, in the digits of month and year and
it is crystal clear that date of death of
Nawal
Kishor
27.01.85,
has
been
tampered by overwriting and converting
01 to 9 and 85 to 84, so that it may appear
and may be read as 27.9.84 i.e. prior in
time to the date of execution of impugned
sale deed dated 19.10.84; that entry of
date of death in "Birth Register" is alleged
to
have
been
made
on
written
request/application, but neither Sonpatti
nor any other person could dare to state
that he/she had sent written information of
death of Nawal Kishor to the authorities
concerned,
rather
Sonpatti
in
her
statement on oath before Court has stated
that she did not make any written
application in this regard, as has been
observed by Courts below; that it is
proved from the evidence on record, that
after obtaining signatures of Tribhuwan
Singh the then village Pradhan over blank
papers by Secretary, Nyay Panchayat,
Ram Ji Tiwari, Lekhpal, Ram Kishor and
Prem Shankar Tiwari, in collusion with
plaintiffs, by misusing that paper, false
entry has been got made in "Birth
Register" in back date by mentioning date
of death of Nawal Kishor as 27.9.1984;
that
amongst
above
persons,
Prem
Shankar Tiwari was in collusion with
plaintiffs is being none other than
husband of Phoolkali, sister of plaintiff
no.2; that there is presumption of
genuineness
and
correctness
about
execution of registered sale deed dated
19.10.1984 by Nawal Kishor in favour of
defendant-respondent
unless
proved
otherwise; that copy of "Family Register"
showing death of Nawal Kishor on
27.9.1984
as
well
copy
of
"Birth
Register" are copies of forged and
fictitious records/entries and are not
admissible in evidence; that since there is
tampering and overwriting in dates
2 All. Nageshwar Prasad & Anr. Vs Santosh Kumar
715
mentioned
in
'Death
Certificate'
of
deceased, paper no.17A filed by plaintiffs
there
can
be
no
presumption
of
genuineness and correctness of entries of
"Birth Register"; that entry of the name of
plaintiff no.1 Nageshwar in the "Family
Register" of Nawal Kishor (deceased)
creates doubt over its genuineness as
name of Nageshwar, the son-in-law
(DAMAD) of Nawal Kishor (deceased)
may not find place in the family register
of his father-in-law Nawal Kishor; that
the concurrent findings of fact recorded
by two courts below may not be interfered
with in this second appeal, in absence of
any illegality and perversity; that no
substantial question of law is involved or
arises in this second appeal and the
substantial questions of law framed and
reframed are liable to be decided against
plaintiffs-appellants; that the appeal has
been filed with absolutely false and
incorrect allegations and is liable to be
dismissed with costs throughout.

12. Upon hearing parties counsel
and perusal of record as well as lower
court record summoned in appeal, I find
that as per plaintiff, erstwhile owner and
bhumidhar of land in suit Sri Nawal
Kishor died on 27.09.1984 and after his
death the land in suit succeeded by his
widow and was purchased from her by
plaintiffs through two registered saledeeds dated 05.06.1985. On the other
hand, defendant contends that Nawal
Kishor did not die on 27.09.1984 rather
he executed a registered sale deed of land
in suit on 19.10.84 in favour of defendant
for a valuable consideration of Rs.
40,000/- and died thereafter, upon which,
in mutation proceedings his widow
Sonpatti filed reply admitting execution
of sale deed dated 19.10.1984 while the
eldest daughter and son-in-law of Nawal
Kishor, in order to usurp the land in suit
obtained two sale-deeds from Smt.
Sonpatti (widow of Nawal Kishor) and
got recorded a false and forged entry of
death of Nawal Kishor on 27.09.1984 in
'Birth
Register'
in
order
to
avoid
registered sale deed dated 19.10.84 in
favour of defendant and since Nawal
Kishor had sold his land in suit in his
lifetime, so the plaintiffs did not get any
right, title or interest in the land in suit
and the sale deeds obtained from Smt.
Sonpatti are wrong, illegal, without
consideration, without authority and null
and viod ab-initio.

13. The plaintiffs have filed original
"Death Certificate" of Nawal Kishor
paper no.17-A issued by Dr. A.K. Mishra,
MBBS, I/c Medical Officer of Primary
Health Centre Korao, District Allahabad,
certifying death of Nand Kishore due to
"Acute
respiratory
failure
due
to
pulmonary oedema" at Mauja Bhaluha
Tehsil Meza. The copy of Birth Register
18c on trial Court shows that entry of
death of Nawal Kishor on 27.9.1984 has
been made on 05.10.1984 on the basis of
written report, but there is no evidence on
record
to
show
that
any
written
information was ever given to authorities
concerned regarding death of Nawal
Kishor on 27.9.84 by his widow Sonpatti
or any other family member on 5.10.1984
or at any other date. In any case, the basis
of above entry in "Birth Register" or
"Family Register" is the death certificate
paper no. 17A issued by Dr. A.K. Mishra,
genuineness of which is of much
importance.

14. During arguments the learned
counsel for the respondent taken the Court
to records of trial court and paper no. 17A
'death certificate' filed by plaintiffs. In
716 INDIAN LAW REPORTS ALLAHABAD SERIES
above 'death certificate' date 27.9.1984
has appeared at 3 places; (i) on the left
lower side of certificate (ii) below
signatures of Medical Officer and (iii) in
the body of certificate. It is noteworthy
that at all the three places date '27' is clear
and untampered (without any tampering
or overwriting thereon) but in the digits of
month '9' as well as second digit of year
'84', there is repeated overwriting and
deliberate tampering at all the three
places, which indicates that deliberate
tampering has been committed in above
'Death Certificate' in order to change the
actual date of death of Nawal Kishor.
From bare perusal of 'Death Certificate
paper' No. 17A, it is crystal clear that the
person who has committed tampering, has
tried his best that original digits may not
be visible at all. I find force in the
submissions made by learned counsel for
the
respondent,
that
above
'Death
Certificate' appears to have been issued on
27.01.1985, but by way of tampering two
digits of month "01" have been converted
to "9"and similarly by tampering in digit 5
in the year "85" it has been converted to
"84" so that it may be read as "8"4 and
date may be read as 27.9.84 instead of
27.01.1985. In the date mentioned below
signatures of Medical Officer, year 85 is
better visible in comparison to other two
places, because stroke of digit "5" is
visible at this place despite tempering.
Since the tampering in date of death in
"Death Certificate 17A" is visible by bare
eyes, the courts below rightly disbelieved
plaintiff's
case
and
considering
the
contradictory evidence of plaintiff rightly
held that plaintiffs failed to prove that
Nawal Kishor died on 27.9.84.

15. The 'Death Certificate 17-A' of
Nawal Kishor certifying his death on
27.9.84 may not be believed as (i) the
Medical Officer was not authorized to
issue 'Death Certificate', (ii) the Medical
Officer who issued certificate was not
produced to prove it, (iii) there is
tampering in date 27.9.84 at all the 3
places, (iv) there is no evidence on record
to show that Nawal Kishor deceased was
under treatment of Dr. A.K. Misra who
issued 17-A while plaintiff Nageshwar in
his on oath statement as PW1 as stated
'that 15-20 days before death Dr.
Achyutanand Pandey attended Nawal
Kishor and on death day also he was
attended by Dr. Pandey'. In view of above
facts on record, whatever may be the date
of death of Nawal Kishor, but in view of
tampering in date of death mentioned in
'Death Certificate 17-A', there is sufficient
reason to disbelieved his death on
27.9.1984.

16. It is also pertinent to mention
that in copy of family register of Nawal
Kishor 43C on trial Court record or 12C
filed in first appeal, it has also been
mentioned that he died on 27.09.1984.
The above entry has also no evidentiary
value as (i) the entry about death of
Nawal Kishor in the family register is not
primary entry and (ii) in copy of family
register paper no. 43-C on lower court
record or 12C filed during first appeal,
name of Nageshwar also finds place as
member of the family though admittedly
he is son-in-law (DAMAD) of Nawal
Kishor, who may not be considered to be
member of family of his father-in-law.

17. In view of the above, since the
very basis of entry of Birth Register about
death of Nawal Kishor on 27.09.1984 is
not proved in view of tampering in 'Death
Certificate' the presumption of correctness
of certified copy of 'Birth Register' duly
issued under section 17 (2) of Birth Act
2 All. Nageshwar Prasad & Anr. Vs Santosh Kumar
717
may not be drawn under Section 76 of
Evidence Act while trial Court has held
that it has not been issued in accordance
with provision of Section 109 A of
Panchayat Raj Act.

18. The Court is of considered view
that there is no incorrectness or perversity
in concurrent findings recorded by courts
below, in holding that plaintiffs failed to
prove death of Nawal Kishor on 27.09.84,
before execution of sale deed dated
19.10.84 in favour of defendant. There is
no
cogent,
reliable
or
independent
evidence on record so as to believe that
Nawal Kishor died on 27.09.1984 or died
before
19.10.84.
The
argument
of
plaintiffs that the defendant who is
DAMAD of deceased did not give any
specific date of death of Nawal Kishor so
date of death given by plaintiff must be
accepted, has no force rather Court finds
force in arguments of learned counsel for
defendant that Nawal Kishor appears to
have died at some time in the year 85 or
so. Learned trial court rightly disbelieved
the contention of plaintiffs about death of
Nawal Kishor on 27.09.1984 for not
producing Medical Officer in evidence
and upon finding the false and forged
entries in Birth register and Family
register to be doubtful.

19. I do not find any force in the
arguments advanced by learned counsel
for the appellant that lower appellate court
acted wrongly in not allowing appellant's
application
for
obtaining
report
of
fingerprint and handwriting expert for
comparison of thumb impressions of
Nawal Kishor over the sale deed dated
19.10.1984 in favour of defendant, with
his thumb impression over other exemplar
sale deed filed by plaintiff in view of the
fact that no relief for cancellation of sale
deed was sought and despite specific plea
about execution of sale deed on 19.10.84
by Nawal Kishor in favour of defendant
in written statement, there are no
pleadings by plaintiff by amendment of
plaint or by filing replication, that sale
deed has been obtained by impersonation
after death of Nawal Kishor.

20. The two sale deeds were
obtained by plaintiffs from Sonpatti on
05.06.85 each of which is alleged to be
executed for a sale consideration of Rs.
40,000/- paid by each plaintiff, however,
in contradiction to above plaintiff no.1 as
P.W.1 has stated on oath that the sale
consideration of Rs. 48,000/- was paid by
each plaintiff which indicates that sale
deeds were obtained without payment of
any consideration. Since Nawal Kishor
had sold land in suit to defendant during
his lifetime, so on his death the land in
suit could not have devolved upon his
widow and since she had no right title or
possession over land in suit, the sale
deeds dated 05.06.1985 obtained by
plaintiffs are without authority wrong,
illegal and null and void ab-initio and
plaintiffs did not acquire any right, title or
possession over the property in suit and
had no locus standi to file suit and obtain
a decree for injunction.

21. Learned counsel for appellants
also addressed the Court on substantial
questions of law initially framed vide
order
dated
10.4.2007
apart
from
questions framed during arguments on
5.8.2019. He pointed out that paper
nos.10-Ga, 15-Ga and 16-Ga have been
wrongly
mentioned
in
substantial
questions
of
law
no.1
framed
on
10.4.2007 and in fact above documents
are Janm and Mrityu Register and
Kutumb
Register
respectively
paper
718 INDIAN LAW REPORTS ALLAHABAD SERIES
no.18-C and 43-C and another family
register paper no.13-C. Referring the
family register 13-C of Mantoria as well
as Triveni Prasad and in view of questionanswer filed during first appeal, he
contended that D.W.-2 Ram Baran who
was examined as marginal witness of sale
deed dated 19.10.1984 by Naval Kishore
in favour of defendant Santosh Kumar,
was in fact Triveni Prasad and so the sale
deed in favour of defendant was not duly
proved by its marginal witness.

22. The above contention has no
force and above paper "Question-Answer"
has no evidenciary value as it was never
suggested by plaintiffs to D.W.-2 Ram
Baran, in his lengthy cross examination,
that he is Triveni Prasad and not Ram
Baran or is giving false evidence by
impersonating himself as Ram Baran.

23. The Courts below rightly held that
plaintiffs failed to prove that Naval Kishore
died on 27.9.1984 prior to execution of sale
deed dated 19.10.1984 of land in suit in favour
of defendant, or that upon death of Naval
Kishore the land in suit devolved on his
widow Smt. Sonpatti and she had any right,
title or authority to execute valid sale deeds in
favour of plaintiff and the above sale deeds
were for valuable consideration. The findings
of courts below are well considered and based
on correct and proper appreciation of evidence
on record and cogent reasonings and in
recording concurrent findings. The Court is of
considered view that the Courts below have
not committed any error, mistake or perversity
in disbelieving the contention of plaintiffsappellants regarding death of Nawal Kishor
on 27.09.1984 and did not acted wrongly or
illegally in disbelieving the Death Certificate
as well as entries of 'Birth Register' as well as
'Family Register'. The lower appellate Court
did not ignore any material documentary
evidence on record of trial Court or filed in
appeal and committed no mistake in relying
the sale deed 19.10.1984 in favour of
defendant which was fully proved in
accordance with law.

24. The Court is of the considered
view that there is no illegality, irregularity,
incorrectness or perversity in the concurrent
findings recorded by both the courts below.
The substantial questions of law framed and
reframed are decided in negative against
plaintiffs. No other substantial question of
law arises or was raised.

25. The appeal is devoid of merits
and is liable to be dismissed.

26. The appeal is dismissed with
costs throughout. The impugned judgment
and decree are affirmed.

27. Interim orders, if any, stand
vacated.

28. Let the lower court record be
transmitted back to the court below along
with a copy of this judgment, for
necessary action, after preparation of
decree in the appeal.
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(2019)10ILR A 718

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.08.2019

BEFORE

THE HON'BLE J.J. MUNIR, J.

Second Appeal No. 1392 of 1998

Ram Nihore & Ors. ...Appellants
Versus
Aiyab Lal ...Respondent