In the absence of documentary evidence, courts should take judicial notice of the fact that majority of the population in India are illiterate and that it is too much to expect from a villager to produce documentary evidence in support of their birth in India.

Headnote:
CITIZENSHIP - CITIZENSHIP ACT, 1955 - SECTION 2, 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24 - ILLEGAL MIGRANTS (DETERMINATION BY TRIBUNALS) ACT, 1983 - SECTION 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24 - SUIT FOR DECLARATION OF CITIZENSHIP - BURDEN OF PROOF - DOCUMENTARY EVIDENCE - JUDICIAL NOTICE - ILLEGAL MIGRANTS (DETERMINATION BY TRIBUNALS) ACT, 1983 - REFERENCE TO TRIBUNAL.
Fact of the Case:

Plaintiffs filed a suit for a declaration that they were citizens of India and for a permanent injunction restraining the defendants from deporting them from India on the allegation that they were Bangladesh Nationals. The plaintiffs claimed that their father came from Maymenshing district of united Bengal in 1943 and settled in Assam (India) in the Nowgong District, acquired landed property, built a permanent residence, and that they were born in India. The defendants denied the averments made in the plaint, stating that the plaintiffs were foreign nationals who infiltrated into India after independence and had no landed property or permanent residence in India.
Finding of the Court:

The trial court dismissed the plaintiffs' suit, holding that they failed to prove by cogent evidence that they were born in India or came to India and settled in India before partition. The appellate court affirmed the trial court's decision.
Issues: 1. Whether the plaintiffs were citizens of India. 2. Whether the plaintiffs had a cause of action to file the suit. 3. Whether the suit was barred by limitation. 4. Whether the plaintiffs were entitled to a decree of declaration and permanent injunction.
Ratio Decidendi: 1. The initial burden was on the plaintiffs to establish their case for a decree of declaration that they were citizens of India. 2. In the absence of documentary evidence, the courts below should have taken judicial notice of the fact that majority of the population in India are illiterate and that it was too much to expect from a villager to produce documentary evidence in support of their birth in India. 3. The plaintiffs' statement made on oath that they were born in India and were permanent residents, coupled with the fact that they had children born in India, should have been accepted by the courts below in the absence of any evidence or material to the contrary. 4. The Illegal Migrants (Determination by Tribunals) Act, 1983, which was enacted during the pendency of the appeal, provides for a fair determination of the question whether a person is an illegal migrant. 5. The plaintiffs' case should be looked into and judged as per the provisions of the Citizenship Act as amended in 1986 and the provisions of the Illegal Migrants (Determination by Tribunals) Act, 1983.
Final Decision: The appeal was allowed. The suit was treated as closed, and the defendants were directed not to deport the plaintiffs unless they were determined to be illegal migrants by the Tribunal constituted under the Illegal Migrants (Determination by Tribunals) Act, 1983.

This second appeal by the plaintiffs is directed against the judgment and decree dated 13.5.81 passed by the learned Asstt. District Judge No. 2, Nowgong in Title Appeal No. 2 of 1980 affirming the judgment and decree dated 13.6.78 passed by the learned Munsiff, Nowgong in Title Suit No. 132 of 1977. The learned Munsiff, by the judgment dated 13.6.78 dismissed the plaintiffs' suit.

2. The plaintiffs instituted Title Suit No. 132/77 in the court of learned Munsiff, Nowgong for a decree of declaration that they were citizens of India and for permanent injunction restraining the defendants from deporting them from India on the allegation that they were Bangladesh Nationals. Plantiff's case was that the father of plaintiff No. 1 and 2 originally came from Maymenshing district of united Bengal in the year 1943 and settled in Assam (India) in the Nowgong District and acquired landed property and built permanent residence there. The plaintiff Nos. 1 and 2 are brothers and were born in India and that plaintiff No. 1 married plaintiff No. 3 in the year 1966. The plaintiff No.1 was educated in the Borbeel Chacharigaon L. P. School in the year 1954 and plaintiff No. 4 to 9 are the chileren of plaintiff No. 1 and 3 born in India. Plaintiff's further case was that on 29.1.76 local police raided their house suspecting them as Bangladesh Nationals and being apprehensive of deportation by the police plaintiffs issued a statutory notice u/s 80 CPC on the defendant and thereafter instituted the suit for decree of declaration that they were citizens of India and for permanent injunction restraining the defendant from deporting them from India. The defendants contested the suit denying the averments made in the plaint by filing written statement which was verified by the then Additional Deputy Commissioner, Nowgong. The defendants also raised various legal pleas, namely-the suit was not maintainable for want of cause of action, the suit was barred by limitation etc. In paragraph 7 of the written statements it has specifically been stated on behalf of the defendants that the plaintiffs are foreign national who infiltrated into India (Assam) long after independence, and that they got no landed property of permanent residence in India. They are neither voters nor have they registered their names in the NRC of 1951. On the pleadings, the learned Muasiff framed the following issues-

1) Is there any cause of action?

2) Is the suit bad for non compliance of the provisions of notice under Section 80 C. P. C.?

3) Are the plaintiffs citizens of India?

4) To what relief, if any are the plaintiffs entitled?

3. In the hearing, the plaintiffs examined 3 witnesses's including plaintiff No. 1 as P. W 1. The defendant did not adduce any evidence. The learned Munsiff on appreciation of the evidences on record, decided the Issue Nos 1 & 2 in favour of the plaintiff, but decided Issue Nos. 3 & 4 against the plaintiffs holding that plaintiffs could not prove by adducing cogent evidence that they were born in India or they came to India and settled in India before partition. The learned Munsiff, however, concluded that plaintiffs came to India after the Constitution of India came into force. On the basis of the finding, the learned Munsiff dismissed the plaintiff's suit by the judgment dated 13.6.78. The plaintiffs impugned the judgment and decree passed by the learned Munsiff in Title Appeal No. 2/80 in the court of learned Asstt District Judge, Nowgong. The learned Asstt District Judge by the impugned judgment and decree passed on 13.5.81 dismissed the appeal of the plaintiffs and affirmed the judgment and decree passed by the learned Munsiff, Nowgong. The learned Asstt District Judge also held that the plaintiffs have failed to prove by documentary evidence that they were born in India or they have landed property in India.

4. I have heard Mr. S. A. Laskar, learned counsel for the appellant and Mr. Sk. Chand Mohammed, learned counsel for the defendant respon

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1990 Supreme(Gau) 208

GAUHATI HIGH COURTS.K.Homchaudhuri, J.Abdul Mannan & Others -AppellantVersusUnion of India, New Delhi & Ors. -RespondentSecond Appeal No. 120 of 1981Decided On : 17-09-1990

In the absence of documentary evidence, courts should take judicial notice of the fact that majority of the population in India are illiterate and that it is too much to expect from a villager to produce documentary evidence in support of their birth in India.

GAUHATI HIGH COURT
S.K.Homchaudhuri, J.
Abdul Mannan & Others -Appellant
Versus
Union of India, New Delhi & Ors. -Respondent
Second Appeal No. 120 of 1981
Decided On : 17-09-1990