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2000 DIGILAW 168 (JK)

Gian Chand v. Mangi Ram

2000-08-24

O.P.SHARMA

body2000
Both these appeals are under section 100 of the Code of Civil Procedure. It is a case in which both the plaintiff as well as defendant in the suit are not satisfied with the judgment and have challenged the judgment and decree passed by the first appellate court of Addl. District Judge, Reasi. But while the defendant has challenged the judgment and decree of both the trial court as well as 1st. Appellate Court the plaintiff is aggrieved of the decree of the 1st. Appellate Court only. The facts of the case are that the plaintiff Mangi Ram adopted defendant Gain Chand as son. An adoption deed dated 22.01.1983 has also been executed. Soon after he filed suit for cancellation of the adoption deed on the ground that since defendant was already married at the time of adoption so his adoption was void-ab-initio. As a consequential relief he prayed that defendant be restrained from dispossessing the plaintiff from the house and the land owned by him. 2. The suit was resisted by the defendant on the plea that there was a custom in the Harijan Community permitting adoption of a married person. It was further pleaded that the defendant was adopted when he was a child and not after his marriage. On these pleadings following issues were framed by the trial court: 1. Whether the defendant can not become legally the adopted son of the plaintiff, if so, how? OPP 2 Whether the adoption deed in question is null and void, if so, how? OPP 3. Whether the giving and taking ceremony has not been performed? OPP 4. In case issue No.3 proved, whether as per custom prevalent in the community of the parties (sister™s son or a married person can be also taken in adopted? OPD 5. Whether the suit of the plaintiff is not maintainable, if so how? OPD 6. Whether the valuation of the suit has not been correctly fixed, if so, what is the correct valuation of the suit and court fee? OPD 7. Relief.� 3. OPD 5. Whether the suit of the plaintiff is not maintainable, if so how? OPD 6. Whether the valuation of the suit has not been correctly fixed, if so, what is the correct valuation of the suit and court fee? OPD 7. Relief.� 3. The suit was decreed by the court of Sub-Judge, Reasi vide its judgment and decree dated 30.12.1992 holding that the petitioner was married at the time of adoption and such a adoption was void-ab-initio because u/s 10 (iii) the defendant was married at the time of alleged adoption and there was neither any custom or usage applicable to the parties which permitted him to be adopted as a married person. The finding of the trial court on issue No. l has been affirmed by the 1st. Appellate Court of Addl. District Judge, Reasi by judgment and decree dated 30.12.1992. 4. However, while the Sub-judge decreed the suit as a whole directing the defendant not to interfere with the plaintiffs possession of the land, the 1st. Appellate Court while upholding that the adoption was invalid dismissed the suit on the ground that the plaintiff being out of possession suit for declaration and injuction was not maintainable without seeking relief of possession. So while the plaintiff challenged this part of the judgment in so far as the suit has been dismissed on the ground that declaration was not the relief, defendant challenges the judgment of both the trial court as well as 1st. Appellate Court on the ground that he was validly adopted as a child and it was the plaintiff who arranged his marriage after adoption. 5. So far as defendants appeal is concerned, the concurrent finding of the fact can be interfered only if it is based on no evidence or appreciation of the evidence is perverse by the courts of facts. It is admitted fact that the natural father of the defendant is Bijan who has appeared as his witness. It is in his statement that at the time he gave the defendant in adoption he was a married person and was also a father of his eldest daughter. Despite this he was not cross-examined by the defendant. It is admitted fact that the natural father of the defendant is Bijan who has appeared as his witness. It is in his statement that at the time he gave the defendant in adoption he was a married person and was also a father of his eldest daughter. Despite this he was not cross-examined by the defendant. This apart, the parties have examined number of witnesses to prove as to whether defendant was adopted before or after his marriage and this evidence has been appreciated by the two courts of facts both have come to the conclusion that at the time of his adoption he was a married person. It is thus not a case of no evidence. Even the natural father of the defendant has admitted that he was already married at the time of adoption, the question of perversity in the evidence also is an argument in despair and rejected accordingly. So concurrent finding of fact that the defendant was not capable of being adopted does not suffer from any legal infirmity. Appeal filed by the defendant, therefore, is liable to be dismissed and is dismissed accordingly. 6. This takes us to the plaintiffs appeal against the dismissal of this suit on the ground that relief of possession though available was not claimed by him. Learned Addl. District Judge was of the opinion that since on the day of the institutions of suit, the plaintiff was not in possession of the suit property. Therefore, suit for declaration simplicitor with the consequential relief of injuction was not maintainable in view of the proviso to section 42 of the Specific Relief Act. In support of this, Learned Appellate Court placed reliance on the decision of the Apex Court in Ram Saran v. Smt. Ganga Devi AIR 1972 SC 2685. However, before applying the law the question is whether defendant was in possession of any part of the property in his independent capacity or was cultivating any land as adopted son. So far as house is concerned, it is stated by the defendant in his statement recorded by the trial court on 14.09.1990 that the both of them are residing there. This fact, is however, denied by the plaintiff. Assuming that the statement made by the defendant is correct, the relief claimed by the plaintiff is only that defendant be restrained from dispossessing him from the house. This fact, is however, denied by the plaintiff. Assuming that the statement made by the defendant is correct, the relief claimed by the plaintiff is only that defendant be restrained from dispossessing him from the house. Since the plaintiff is not out of possession, relief of injuction as prayed with regard to the house could be granted on the basis of admission made by the defendant. 7. The next question is whether defendant-appellant is in possession of any part of the agricultural land owned by the plaintiff-respondent herein. As per entry reproduced in mutation No.355, plaintiff is recorded in possession through the defendant as his adopted son. This means the defendant was cultivating the land in his capacity as adopted son the plaintiff and not in his independent capacity. The Tehsildar while attesting mutation No.3 55 on 19.08.1989 has concluded that as adopted son, defendant has no right to be recorded in possession as long as adoptive father is alive and he therefore, by order dated 19.01.1989 directed the correction of the entry holding that the land details of which are given in mutation No. 355 of village Kanha Tehsil Reasi in fact is in occupation of the plaintiff and shall be so recorded. Since adoption is the basis of this entry, because as per record, the plaintiff was shown to be cultivating the land through his adopted son, once adoption goes the entry also goes. This is because the defendant had no independent status for cultivating the land and once his status as adopted son goes, the entry also goes. Moreover, just as son is not recorded in possession as long as father who is proprietor as defined in the Land revenue Act is alive for the same reason the adopted son cannot be shown in occupation of the land as long as adopted father is alive. This was, therefore, wrong entry and had been rightly corrected by the Tehsildar. The learned Appellate Court fell in error in holding that it was suit for possession. 8. There was a technical objection to the maintainability of the appeal filed by the defendant. According to Mr. Manhas, since the appeal was not accompanied by the decree of the trial court, therefore, it had to be dismissed on this ground only. Order 42 of the Code of Civil Procedure prescribes procedure for filing appeals from appellate decrees. 8. There was a technical objection to the maintainability of the appeal filed by the defendant. According to Mr. Manhas, since the appeal was not accompanied by the decree of the trial court, therefore, it had to be dismissed on this ground only. Order 42 of the Code of Civil Procedure prescribes procedure for filing appeals from appellate decrees. Rule 1 of O. 42 reads as under: (1) Procedure: - The rules of Order XLI shall apply, so far as may be, to appeals from appellate decrees. The appellant shall, in addition to the copies of the decree and judgment appealed from, also file a copy of the judgment of the Court of first instance.� 9. The contention of Mr. Mannas is that since O. 41 applies to these appeals also, therefore, fling of the copy of judgment and decree of the trial court is mandatory. This however, is not the correct position as is evident from the plain reading of the Rule. So while it is necessary to file copies of the decree and judgment of the appellate court, only copy of the judgment of the court of first instance has to be filed. So there is no requirement of filing copy of the decree of the court of first instance, so the appeal filed by the plaintiff does not suffer from any infirmity. In view of the above discussion appeal filed by the plaintiff is allowed, judgment and decree of 1st. Appellate Court is set-aside. Consequently, the judgment and decree of the trial court is restored without any orders as to costs.