2002 Supreme(SC) 1274

2003(1) Supreme 4
SUPREME COURT OF INDIA
(From Madhya Pradesh High Court)
Doraiswamy Raju & Shivaraj V. Patil, JJ.
Mahila Bajrangi (dead) through LRs. & Ors. -Appellants
versus
Badribai w/o Jagannath & Anr. -Respondents
Civil Appeal No. 4594 of 1995
Decided on 19-12-2002
Counsel for the Parties :
For the Appellants : S.K. Gambhir, Sr. Advocate and H.K. Puri, Advocate.
For the Respondents : U.N. Bhachawat, Sr. Advocate, Alok Bhachawat, Ms. Anjali Doshi, Ms. Ruchi Kohli and Sushil Kumar Jain, Advocates.

IMPORTANT POINT
Findings recorded by Division Bench as no proof of marriage of Gopali with G (Gendilal) as well as the parentage of Bajrangi (original plaintiff) as their daughter is not shown to suffer from any serious infirmity or vitiated by perversity to call for any interference by Apex Court.

Headnote:(i) Civil Procedure Code, 1908-Explanation (viii) to Section 11-Res judicata-Revenue authorities deciding in Mutation proceedings that Jagannath was not legally adopted son of G whereas Gopali and Bajrangi were G s wife and daughter-Plea raised for first time in a matter of declaration of title and recovery of possession-Whether such a decision of revenue authorities would constitute res judicata? (No).

       Held : Explanation (viii) to Section 11 CPC on which strong reliance has been placed, in addition to certain judgments brought to our notice can be of no assistance whatsoever to the appellants in this regard. The said Explanation stipulate that an issue heard and finally decided though by a court of limited jurisdiction, which the said Court is competent to decide such an issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit in which such issue has been subsequently raised. Merely because in exercising powers under Section 110 of the Code for mutation of acquisition of rights in the field books and other relevant land records, the Tehsildar was obligated to afford reasonable opportunity of being heard to the persons interested and hold further inquiry as may deem necessary into the claim, before making necessary entries or that some witnesses were examined by such authority, though not substantiated that he had any power to administer oath or compel and enforce attendance of witnesses, it cannot be elevated to the status of court and its orders credited with the force and efficacy of a decision of a Court of justice in a judicial proceeding. Such entries made in land records even as per the Code, shall be presumed to be correct only until the contrary is proved. Section 111 of the Code provides that the Civil Court shall have jurisdiction to decide any dispute to which the State Government is not a party relating to any right, which is recorded in the record of rights. Consequently, it could not legitimately be claimed that the Tehsildar or authorities exercising powers of mutation (original, appellate or revisional) have been accorded the status of Civil Courts or Courts of exclusive jurisdiction and for that matter, to use such orders as basis or source for asserting a claim of res judicata before a competent Civil Court in a subsequent suit involving adjudication of title to the immovable property. That mutation proceedings before Revenue Authorities are not judicial proceedings in any Court of law and does not decide questions of title to immovable property is a trite position and principle of law vide - (Thakur) Nirman Singh & Ors. vs. Thakur Lal Rudra Partab Narain Singh & Ors. (AIR 1926 PC 100). The decision reported in Rajlakshmi Dasi & Others vs. Banamali Sen & Ors. (1953 SCR 154) rendered in the context of dealing with the efficacy of a decision relating to apportionment of compensation under the Land Acquisition Act among claimants can be of no assistance to the case on hand, viewed in the light of the very observations contained in the said decision of this Court itself, that the claim to compensation made by the respective parties was founded on the assertion of their respective titles and that the Land Acquisition Court had thus jurisdiction to decide the question of title of the parties in the property acquired and that title could not be decided except by deciding the controversy between the parties about the ownership. Per contra, the Revenue Authority ordering mutation of revenue records cannot be Protanto held to be a Civil Court of concurrent and competent jurisdiction to adjudicate questions of title to immovable property. That apart, it is always the decision on an issue that has been directly and substantially in issue in the former suit between the same parties which has been heard and finally decided that is considered to operate as res judicata and not merely any finding on every incident or collateral question to arrive at such a decision that would constitute res judicata. (Para 6)

       (ii) Evidence Act, 1872-Sections 32 and 33-Presumption of marriage-Suit for declaration of title and recovery of possession-Dismissed by trial Court, decreed by Single Judge in appeal but D.B. in LPA reversed Single Judge and restored trial Court holding that Bajrangi plaintiff was not daughter of G and Gopali-Statement of Gopali recorded in Mutation proceedings-Admissibility in evidence as presumption of valid marriage-Rejected by D.B.-Whether perverse? (No)-Result-Appeal dismissed-Dismissal of suit in entirety upheld. (Para 9)

       Held : Sections 32 and 33 of the Evidence Act are considered to be exceptions to the general principle that the best evidence should be directly let in, during the course of trial to render it admissible in evidence. Section 32 renders statement of relevant facts made by a person, who is dead, or who cannot be found or who has become incapable of giving evidence, etc., admissible in evidence as to the relevant facts when it relates to the existence of any relationship by blood, marriage or adoption between persons as to whose relationship the person making the statement had special means of knowledge, and when the statement was made before the question in dispute raised. Section 33 provides the conditions necessary to be satisfied to admit as secondary evidence testimony given by a witness in a former judicial proceeding or before any person authorized by law to take it for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, etc. It was also contended that the admission of facts in those statements would be sufficient per se to prove the claims made in evidence, as an admission. The statement as to any fact in issue or relevant fact to be admissible as an admission must be such as are relevant and may be proved against the person, who makes them or his representative in interest and not on behalf of the person, who makes them, unless when it is of such a nature that if the persons making it were dead, it would be relevant as between third person under Section 32. So far as the case on hand is concerned, it cannot be said that the mutation proceedings before the Tehsildar under the code was a judicial proceeding or that it was shown to have been made before a person authorized by law to take evidence. Even that apart, the statements during the mutation proceedings were all after the disputes arose between parties when Gendilal died on 8.1.1966 and being self-serving claims and assertions in support of the very claims of the person making it which are seriously disputed, in the absence of any independent corroboration cannot be taken to be conclusive evidence sufficient in law to substantiate those facts sought to and necessitated, to be proved by the plaintiff to claim the relief. By the same standards, which the appellants seek to apply to the appreciation of their case if the materials produced on behalf of the first defendant are also adjudged the entries in the School Admission Register and School Leaving Certificate made long before even any dispute between parties arose, pertaining to Jagannath, describing late Gendilal as the father, cannot be brushed aside as of no significance. Dehors the admissibility or otherwise of a particular piece of evidence, the question of probative value of the material is as much relevant and necessary to be considered before the same being accepted as a legal piece of evidence sufficient in law to constitute proof of the fact sought to be established. The learned Trial Judge as well as the Division Bench, in our view, have properly kept into consideration these vital aspects in appreciating the materials on record and we could find no serious infirmity in the manner of their appreciation or the reasonableness of the conclusions arrived at thereon. The learned Single Judge has, in our view, omitted to keep into account these vital aspects and committed a grave error in taking these statements to be conclusive evidence and sufficient in law by themselves to establish the factum of marriage of Gopali with Gendilal as well as the parentage of the original plaintiff. Apart from all these aspects, the evidence on record that Gopali was earlier married to another person and that even when she joined Gendilal, the original plaintiff Bajrangi was already a child, would militate against the normal presumption that would be available to be drawn on account of long cohabitation, as also the parentage of the original plaintiff. Consequently, we are of the view that the findings recorded by the Division Bench in this regard are not shown to suffer any serious infirmity or vitiated by perversity to call for our interference in this appeal. (Para 8)

       Held consequently : For all the reasons stated above, we see no merit whatsoever in the above appeal and the same fails and shall stand dismissed with no order as to costs. (Para 10)