Mangilal And Ors. v. Bhagirath And Ors. — 1997 DIGILAW 16 (MP)

JUDGMENT A.R. Tiwari, J. 1. Three out of seven defendants have filed this Second Appeal under Section 100 of the Code of Civil Procedure against the judgment and decree dated 9.5.80 rendered by the Additional Judge to the Court of District Judge, Shajapur in Civil Regular Appeal No. 101-A/78 thereby dislodging the judgment and decree dated 6.4,77 passed by Civil Judge, Class II, Shajapur, Camp Sarangpur and decreeing the suit of the plaintiff i.e. Respondent No. 1. 2. Briefly stated, the facts of the case are that Dunga was the father of Dula and Maniram. Dula had two sons Isariya and Daya. Maniram was issueless. After the death of Dunga, partition took place between Dula and Maniram. They came into a exclusive possession of their respective shares. Respondent No. 1 (plaintiff) is the son of Daya, natural son of Dula and grand-son of Dunga. He filed the suit for declaration of his share in the property of Dula. The respondents contested the suit with specific plea that Daya had gone in adoption to Maniram as his son and as such he had no right, title or interest in the property allotted to Dula on partition. It was thus, pleaded that consequently plaintiff, son of Daya has no right, title or interest to obtain declaration. Daya came in possession of the property of Maniram and after the death of Daya, Bhagirath-respondent No. 1 came in possession. The Trial Court framed material issues No. 5(a) and (b) on the point of adoption and title and answered both the issues against respondent No. l. the Trial Court, thus, dismissed the suit. The respondent No. 1 then filed the aforesaid first appeal which was allowed with declaration that respondent No. 1 has Vi share as Bhumiswami in Survey No. 2065 area 11 Bighas and two Biswas situated in Village Lima Chokan, Tahsil Sarangpur. Aggrieved by this judgment the three defendants have filed this Second Appeal. 3. This appeal was admitted for final hearing on 19.9.1980 on the under noted substantial question of law : "Whether in the facts and circumstances of the case, the findings of two Courts below regarding plaintiffs' entitlement to half share in the suit land is without any evidence and is not in accordance with law ?" The application for stay against mutation was, however, rejected on 29.7.81. 4. I have heard Mr. 4. I have heard Mr. Ashok Kutumbale, learned Counsel for the appellants, Mr. Sandeep Shukia, learned Counsel for respondent No. 1 and Mrs. Vinita Phaye, learned Panel Lawyer for Respondent No. 6. None appeared for Respondents No.2 to 5. 5. The objects of adoption are two-fold- (1) the first was religious, to secure spiritual benefit to the adopter and his ancestors, by having a son for the purpose of offering funeral cakes and libations of water to the means of the adopter and his ancestors; (2) the second was secular, to secure an heir and perpetuate the adopter's name. The requisites of a valid adoption are provided by Section 6 of the Hindu Adoptions and Maintenance Act, 1956. On consideration of the evidential material, the Trial Court found the adoption as proved and held in consequence that Daya had no right, title or interest in the property of Dula. 6. It is admitted before me by the Counsel for the respondent No. 1 (plaintiff) that if the findings on Issue No. 5(a) and (b) are restored, then, the unevitable consequence would be dismissal of the suit and restoration of the judgment and decree passed by the Trial Court. 7. The trial Judge cannot be treated as infallible but before the finding of fact recorded by him can be set aside, it must be established that the finding is unsound, perverse or has been based on grounds which cannot be termed as satisfactory. In AIR 1974 Supreme Court 405, Baburao Bagaji and Ors. v. Govind and Ors., it is held as under : "Before a finding of fact by a Trial Court can be set aside it must be established that the trial Judge's findings were clearly unsound, perverse or have been based on grounds which are unsatisfactory by reason of material inconsistencies or inaccuracies." xxx xxx xxx xxx 8. The reasons in support of the findings on Issues No. 5(a) and (b) are contained in paragraphs 6 to 12 of the judgment of the Trial Court. It was clearly established that Daya, after the alleged adoption, used to cultivate the land of Maniram and after the death of Maniram, the name of the plaintiff is mutated on the land of Maniram. It was clearly established that Daya, after the alleged adoption, used to cultivate the land of Maniram and after the death of Maniram, the name of the plaintiff is mutated on the land of Maniram. The reasons noted in paragraph No. 8 of the impugned judgment are not properly dislodged by the First Appellate Court, the Appellate Court, in para No. 12, has commented that proper evidence has not been led on the plea of adoption, but halts at that and does not make any proper effort to displace the reasons chronicled by the Trial Court. The approach cannot be conjectural. The objects of adoption and legal position have also not been kept in mind. 9. One more point stares in the face. While reversing the finding with regard to adoption, the First Appellate Court has not considered whether in that case the appellants may also be entitled to share in the land at Village Khercha Khedi. After consideration of para No. 12 of the First Appellate Court's judgment as also the legal position with regard to adoption. I am satisfied that this is a fit case where the judgment and decree of the First Appellate Court merit to be mortalised with directions for remittal to consider the reasons of the Trial Court properly and reach the conclusion on reappraisal of the evidence and render judgment and decree afresh after hearing all sides. 10. As prayed by both the sides, the matter therefore, needs to be remanded. 11. Law and justice are not distant neighbours. The findings of the Trial Court should receive proper consideration by the Appellate Court. In my view, the reasons contained in paragraph No. 12 need be reconsidered in the light of the reasons contained in paragraphs No. 6 to 12 of the Trial Court's judgment. The finding of the First Appellate Court is not in accordance with law. 12. In the result, I allow this appeal in part, set aside the judgment and decree of the First Appellate Court and remand the case to the First Appellate Court with direction to restore the aforesaid Civil Regular Appeal No. 101-A/78 under its original number and to decide the appeal afresh after hearing all sides with due focus on the reasons assigned by the Trial Court and with proper attention to the legal position with regard to the valid adoption. The appellants and respondent No. 1 as also respondent No. 6 through their Counsel are directed to appear before the First Appellate Court on 24.2.1997 to take further orders in the matter. If necessary, summons be issued to respondents No. 2 to 5 by the First Appellate Court. 13. A decree be drawn up accordingly. As the matter is old, the First Appellate Court shall make an endeavour to decide the aforesaid appeal within a period of six months from 24.2.1997. 14. The parties are left to bear their own costs as incurred. Counsel's fee for each side shall be as per the schedule, if certified. 15. Records be returned immediately.