Full Judgment Text
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PETITIONER:
DHAN SINGH
Vs.
RESPONDENT:
NAGINA (Kuldip Singh, J.)
DATE OF JUDGMENT03/01/1994
BENCH:
KULDIP SINGH (J)
BENCH:
KULDIP SINGH (J)
AGRAWAL, S.C. (J)
CITATION:
1994 SCC (2) 493 JT 1994 (1) 654
1994 SCALE (1)608
ACT:
HEADNOTE:
JUDGMENT:
ORDER
1. Heard learned counsel for the parties. Special leave
granted.
2. This appeal arises against the order of the Orissa
Administrative Tribunal, Bhubaneswar in OA No. 858 of 1989
dated June 22, 1992. The respondent joined the service as a
Cook in CDMO Cuttack on February 9, 1962. Thereafter he was
promoted as Disinfector and Senior Helper. He attained the
age of superannuation on May 31, 1989. Before his
retirement when the notice of retirement was given, he filed
an application on April 24, 1989 stating that his correct
date of birth is June 27, 1934 and therefore he cannot be
retired. Since his representation was not accepted, he
filed OA No. 858 of 1989 before the tribunal. The tribunal
observed that his correct date of birth is June 27, 1934 and
not May 18, 1929 as entered in the service register and
therefore the respondent is entitled to be in service till
the age of 60 years. Thus this appeal by special leave.
3. Rule 65 of the Orissa General Financial Rules provides
thus
"Every person on entering government service
shall declare his/her date of birth which
shall not differ from any such declaration
expressed or implied for any public purpose
before entering service. The date of
birth shall be supported by documentary
evidence such as Matriculation Certificate,
Municipal Birth Certificate and entered in
his/her service record. No alteration of the
date of birth of government servant shall be
made except in case of clerical error without
prior approval of the State Government. An
application for effecting a change in the date
of birth shall be summarily rejected if :
(a) filed after five years of entry into
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government service,
(b) the change would so lower the
applicant’s age that he/she would have been
ineligible to appear in any of the academic or
recruitment examinations in which he/she had
appeared or for consideration for appointment
to any service or post under the Government."
4.A reading of these rules clearly shows
that every person on entering government
service shall declare his/her date of birth
which shall not differ from any such
declaration expressed or implied for any
public purpose before entering service. The
date of birth shall be supported by
documentary evidence such as Matriculation
Certificate, Municipal Birth Certificate and
entered in his/her service record. No
alteration of the date of birth of government
servant shall be made except in case of
clerical error without prior approval of the
State Government. An application for
effecting a change in the date of birth shall
be summarily rejected if filed after five
years of entry into government service, etc.
From what has been stated in paragraph 7 of
the order of the tribunal, it would appear
that the respondent became aware of the entry
in the service register in the year 1970.
493
Admittedly, no action has been taken within five years
thereafter. Under those circumstances, Rule 65 as referred
to above is clear that his claim for alteration shall be
summarily rejected without any further inquiry. Now the
respondent sought to place reliance on School Certificate in
which the date of birth was entered as June 27, 1934.
Obviously, he must have had the knowledge of the School
Certificate but he failed to produce it when he entered into
the service or had knowledge of the entry made in the
service register as May 18, 1929 as early as 1970. Under
these circumstances, the tribunal committed a manifest error
in correcting the date of birth. Rule 65 is mandatory and
the tribunal had not given due consideration to it. The
appeal is allowed. No costs.
DHAN SING V. NAGINA (Kuldip Singh, J.)
The Judgment of the Court was delivered by
KULDIP SINGH, J.- This appeal is a sequel to a suit for
possession by redemption of agricultural land measuring 268
kanals 6 marlas, situated at
From the Judgment and Order dated November 26, 1985 of the
Punjab and Haryana High Court in Regular Second Appeal No. 5
of 1977
494
Village Haibatpur, Tahsil and District Kamal (Haryana),
instituted by the appellant-plaintiff in the year 1970. The
suit was decreed by the trial court. The lower appellate
court, however, set aside the judgment of the trial court
and dismissed the suit. The High Court, in second appeal,
declined to interfere with the findings of the lower
appellate court. This appeal by way of special leave is by
Dhan Singh appellant-plaintiff.
2. One Surjit Singh was the owner of land in dispute.He sold
122 bighas 15 biswas (including the land in dispute) of
agricultural land, a house and a bara to Nagina and Sher
Singh, respondents-defendants for a sum of Rs 2500 on July
9, 1945. Dhan Singh, a collateral of Surjit Singh,
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challenged the sale by way of a reversionary-suit. In the
said litigation the High Court in second appeal by its
judgment dated July 17, 1951 came to the conclusion that the
part of the land sold by Surjit Singh was ancestral land and
in respect of the said land there was no evidence to show
that it was an act of good management. The High Court in
its judgment dated July 17, 1951 held as under :
"As half of the consideration should be held
to be for ancestral land which would come to
Rs 590 I, therefore, hold that the suit should
be dismissed in regard to one-half of the land
and with regard to the other half, the sale
should be converted into a mortgage, in that
the plaintiff will be entitled to get the land
after the death of alienee on payment of Rs
590."
3.It is obvious from the above-quoted judgment of the
High Court that the part of the sale was held to be not for
legal necessity and, as such, to safeguard the interest of
reversioners, the same was converted into mortgage and the
right of the vendees to get the amount of Rs 590 back was
preserved. What was done by the High Court was most
equitable under the circumstances.
4.Dhan Singh instituted the present suit for possession
by way of redemption on the ground that Surjit Singh was not
being heard of for the last more than 7 years and, as such,
was presumed to be dead. He claimed redemption and
possession on the basis of the High Court judgment dated
July 17, 1951 (quoted above).
5.Although the suit instituted by Dhan Singh was for
possession by way of redemption of the land in dispute but
the lower appellate court and the High Court came to the
conclusion that the suit was a simple suit for possession.
The contention of the appellant that the suit was for
redemption of mortgage and, as such, the limitation for
filing the suit was 30 years, was rejected. The appellant
was non-suited on the short ground that the suit filed by
him being a suit for simple possession, it was barred by
limitation. The lower appellate court gave its findings on
the following reasoning :
"The learned lower court, as well as the
learned counsel for the parties, are in error
in believing that technically there was a
mortgage and that a suit for redemption was
maintainable. I hold that the present suit
was one for possession on the basis of a
declaratory decree obtained
495
by the plaintiff under the customary law and I
hold further that for the purpose of
limitation Article 2 of the Schedule to the
Punjab Limitation (Custom) Act will apply
to the present case. According to Article
2(b) the period of limitation for bringing a
suit for possession is three years, if a
declaratory decree has already been obtained
and the period begins to run from the date on
which the right to sue accrues or the date on
which the declaratory decree is obtained,
whichever is later.
It is undisputed that the right to sue in the
present case will arise on the death of
the vendor because it is the death of the
vendor which could give to the plaintiff a
right to bring the suit for possession based
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upon the declaratory decree which had been
granted in his favour by the Hon’ble High
Court. Therefore, the question arises as to
when the death of the vendor took place and
whether taken from that date the suit was
brought within three years."
The lower appellate court further held as
under:
"Since in this case it would be presumed that
the vendor was dead is the year 1962-63
which presumption has to be drawn as per
evidence led by the plaintiff himself, it
is clear that the suit was not brought within
three years of that period and it was clearly
time barred. I have already held above that
by no stretch of imagination this suit can be
treated as a suit for redeeming the
property. This suit cannot be called legally
as a suit for redemption of the property. It
is a suit plainly for possession of the
land subject to the condition that the
plaintiff will have to pay Rs 590 to the
vendees as has been held by the Hon’ble High
Court in its judgment Exbt. P-3."
6. The High Court upheld the findings of the lower appellate
court in following words :
"Lastly, the learned counsel for the appellant
argued that in the earlier litigation the
High Court had converted the sale effected by
Surjit Singh into a mortgage on July 17,
1951 and the present suit for redemption of
that mortgage is within limitation and 30
years’ period is prescribed under the
Limitation Act, 1963 for such suits. His
argument was that Surjit Singh would be
presumed to be dead in view of Section 108
of the Evidence Act as he was not heard of for
the last 15 or 16 years prior to the filing
of the suit by the persons who were expected
to know about him and the plaintiff being
his heir has a right to redeem. am of the
opinion that argument has no force. This Court
in the earlier litigation converted the sale
into a mortgage in the notional sense i.e. Dhan
Singh plaintiff was allowed to get the
property on payment of Rs 590 after the
death of the alienor. Though the present suit
has been framed as if it is a suit for
redemption but actually it will be deemed to be
a suit by the reversioner for possession of
the land which had been alienated and which
alienation has been successfully challenged
under custom. The period of limitation
for such suits will be governed by Punjab
Limitation (Custom) Act."
496
7.The short question for our consideration is whether the
suit filed by the appellant was a suit for redemption or a
suit for possession simpliciter. Mr Vikram Mahajan, learned
counsel for the appellant, vehemently contended that the
High Court by its judgment dated July 17, 1951 specifically
converted the sale into a mortgage. According to him even
if it is assumed that the said conversion was in the
notional sense, a litigant cannot be penalised for
understanding the simple language of the judgment and acting
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upon the same. We see considerable force in the contention
of the teamed counsel. We may, at this stage, refer to the
reasoning of the trial court which is in the following words
:
"From this judgment, one can clearly gather
that half of the sale was converted into the
mortgage. The learned counsel for the
defendant has urged that such a conversion of
sale into the mortgage is not permissible and
such a judgment is not binding upon the
defendants. The argument is not tenable
because a perusal of the judgment would
indicate that the sale not held entirely to
have been made for legal necessity and,
therefore, to safeguard the interest of the
reversioners, the sale to the extent of half
was converted into the mortgage and the rights
of the vendees to get the amount of Rs 590
back were preserved in lieu of the return of
the property which was the most equitable
relief. In these circumstances, there is a
further followed authority which is Hardev
Singh v. Dr Sharan Singh’ wherein it was held
that where the sale was not for legal
necessity, it would be converted to a
mortgage. So, the mortgage stands as alleged
by virtue of the judgment referred to above
and I uphold the contention of the learned
counsel for the plaintiff that the order of
the Hon’ble High Court amounts to a creation
of a mortgage."
8.We are of the view that the respondents being parties
to the earlier suit the decision of the High Court in the
said suit was binding on them. It was not open to the
appellate court and the High Court in the subsequent suit to
proceed on the basis that the sale of half of the property
was not converted into mortgage as a result of the earlier
judgment of the High Court. We, therefore, set aside the
findings of the lower appellate court and of the High Court
on the said issue.
9.On the question of relief, we are of the view that in
the facts and circumstances of this case, the ends of
justice would be met if the appellant is permitted to take
possession of only half of the land in dispute from the
respondents. On September 29, 1993, this Court passed the
following order:
"The appeal is adjourned to October 12, 1993, to enable the
parties to probe the possibility of settlement."
10.Thereafter, the arguments were heard on October 27,
1993, and this Court passed the following order:
1 AIR 1952 Pep 87
497
"We have heard arguments from both sides. Mr
V.C. Mahajan, learned senior counsel appearing
for the appellant states that his offer of
leaving half the land to the respondents is
still open. Mr Kirpal Singh, learned counsel
appearing for the respondents has not been
able to have any response from his clients.
We give him more time to contact his clients.
List the matter in Chambers on November 18,
1993 at 1.40 p.m."
11.Even on November 18, 1993, when we heard
the arguments finally, the learned counsel for
the respondents was unable to contact his
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clients. Keeping in view the fact that the
respondents are in possession of the land for
the last about 50 years and also the fair
concession made by Mr V.C. Mahajan, under
instructions from his client, we direct that
the appellant shall be entitled to possession
from the respondents of half of the land in
dispute. Any construction on the land or any
wells etc. sunk by the respondents on the land
shall remain in possession of the respondents.
We direct the Tahsildar, Kamal, either himself
or through a subordinate officer, to have the
land in dispute distributed half and half in
terms of our judgment.
12.We allow the appeal, set aside the
judgment of the lower appellate court and the
High Court and decree the suit of the
appellant modifying the judgment of the trial
court to the above extent. The parties shall
bear their own costs.
498