N.N.TIWARI, J. - (1.) THIS Second Appeal by the defendant/appellant/appellants is against judgment and decree of affirmance dated 30.7.1999 passed by the 3rd Addl. District Judge, Dhanbad upholding the judgment and decree of the trial Court. The plaintiff filed Title Suit No. 57/97 praying for declaration that his date of birth recorded in the Matriculation Certificate, as 17.7.1944, is correct and genuine and the date of birth entered in the Service Book is incorrect and be corrected as 17.7.1944.
(2.) THE plaintiffs case is that he had passed matriculation examination from Bihar School Examination Board in the year 1961 and in the certificate his date of birth was recorded as 17.7.1944. On the basis of the said matriculation certificate, he was appointed in Katras Chaitudih Colliery as Miner/Loader. When the coal mines were nationalized, records were prepared and in the service book of the petitioner his year of birth was mentioned as 1937 although in the service book his qualification has been shown as matriculate. The grievance of the plaintiff was that his date of birth was recorded in the matriculation certificate has been ignored and imaginary and arbitrary date of birth was mentioned in his service book. The plaintiff on the basis of said wrong entry of his date of birth was asked to retire prior to his reaching the age of superannuation.
(3.) THE defendant appeared and contested the suit stating inter alia that the plaintiff had himself mentioned his date of birth as 1937 and the same was recorded in the statutory Form B register, prepared and maintained under the provisions of Sec. 48 of the. Mines Act. The plaintiff had not produced the matriculation certificate at the time of his appointment. The name of the petitioner is Dwarika Dusadh but the certificate is in the name of Dwarika Ram and thus there is difference in the name. Moreover, Sec.38 of the Specific Relief Act. cannot, be invoked at the fag end of his service and that the plaintiff has since been retired from the service, the suit has become infructuous.;