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2004 DIGILAW 285 (PNJ)

Preet Kumar v. Surjan Dass (Dead) through LRs.

2004-03-10

VINEY MITTAL

body2004
JUDGMENT Viney Mittal, J. - The plaintiff has approached this Court through the present regular second appeal. He had filed a suit for possession of the land in dispute claiming half share in the total land measuring 24 kanals 4 marlas. It was claimed by the plaintiffs that they were four brothers, namely, Achhar Ram, Surjan Dass, Girdhari and Arjan Dass. Plaintiffs Maharaj Kishan and Basheshar Nath were the sons of Arjan Dass. Bhagwanti and Krishan Piari were the children of Achhar Ram. The plaintiffs claimed that Surjan Dass defendant No. 1 was adopted by Chint Ram in the year 1916. The aforesaid Chint Ram was the father-in-law of Surjan Dass. Subsequently, Girdhari Lal died in the year 1964. He died intestate. The plaintiffs claimed that on the death of Girdhari Lal, they were entitled to succeed to the share of Girdhari Lal in equal shares with the children of Achhar Ram and Surjan Dass had no right or interest to claim the estate of Girdhari Lal inasmuch as he had been earlier adopted by Chint Ram and as such had been transplanted from the original family to the family of Chint Ram. 2. The suit was contested by defendant No. 1. He denied the allegations contained in the plaint. He denied that he was ever adopted by Chint Ram. It was claimed that he was the son-in-law of Chint Ram. On that basis, it was claimed that being the brother of Girdhari Lal he was entitled to succeed to the estate of Girdhari Lal. An objection was also taken that Girdhari Lal having died in the year 1964 and the suit having been filed in the year 1975, the same was also barred by limitation. 3. The learned trial Court decreed the suit filed by the plaintiffs. 4. The matter was taken up in appeal by defendant No. 1. The learned first appellate Court re-appraised the entire evidence. On such re-appraisal, the learned first appellate Court found that there was no evidence to suggest that Surjan Dass had ever been adopted by Chint Ram or that he had ever been so treated by Chint Ram. It was also held that Chint Ram was father-in-law of Surjan. On that basis, the learned first appellate Court observed that it could not be held that he had been adopted by Chint Ram. It was also held that Chint Ram was father-in-law of Surjan. On that basis, the learned first appellate Court observed that it could not be held that he had been adopted by Chint Ram. The various documents produced by the plaintiffs, namely, mortgage deeds and sale deeds wherein Surjan Dass was described as son of Chint Ram were also taken into consideration but the learned first appellate Court held that the said fact by itself was not sufficient to prove that there was any adoption by Chint Ram. Certain observations made by the learned first appellate Court may be noticed as follows : "Chint Ram was the father-in-law of Surjan Dass. Case of Maharaj Kishan and Basheshar Nat plaintiffs is that Surjan Dass was adopted by Chint Ram after the death of his daughter i.e. Surjan Dasss wife. After the death of his daughter i.e. Surjan Dasss wife, Surjan Dass remarried and at that marriage Chint Ram played the role of a father. Chint Ram performed the marriage of Surjan Dass after the death of his daughter i.e. Surjan Dasss wife in a manner as if he were his father. In support of their case the plaintiff- respondents No. 1 and 2 have relied upon the admissions made by Surjan Dass that he is Pisar Mutbanna. Chint Ram contained in certain mortgage deeds/sale deeds on the record which are subsequent to the year 1916. They have also relied upon the jamabandi entries for the year 1922-23 (Ex.P8), 1942-43 (Ex.P9), 1950-51 (Ex.P10) Khatauni Ishtemalarazi (Ex.P11) to show that in these jamabandis Surjan Dass is recorded as Pisar Matbanna Chint Ram. I am unable to attach any importance to the admissions allegedly contained in these sale deeds/mortgage deeds because at none of these mortgage deeds/sale deeds Surjan Dasss signatures or thumb impressions appear barring Ex.PW1/D, mortgage deed where Surjan Dass signatures appear. No value can be attached to the jamabandi entries regarding Surjan Dass being a Pisar Matbanna or Chint Ram because in these jamabandis Surjan Dass figures either as mortgagee or vendee from Ananuldin and others who are executants of the said mortgage deeds and sale deeds, the mutations were sanctioned and the said mutations were incorporated in jamabandis. So the jamabandi entries recording Surjan Dass as Pisar Matbanna Chint Ram do not have any independent existence, apart from the recitals contained in the said mortgage deeds and sale deeds. So the jamabandi entries recording Surjan Dass as Pisar Matbanna Chint Ram do not have any independent existence, apart from the recitals contained in the said mortgage deeds and sale deeds. Furthermore if Surjan Dass had really been adopted by Chint Ram, he would not have given himself out as the son of Sadhu Ram even after the year 1916. In Tamasak Ex.D2 dated 28.4.25 executed by Ali Bakhsh and Naib Bakhsh in favour of Girdhari lal and Surjan Dass, Surjan Dass is described to be son of Sadhu Ram. In agreement (Ex.D3) dated 19.8.1920 executed by Karam Alahi etc. in favour of Girdhari Lal and Surjan Dass, Maharaj Kishan and Basheshar Nath, Surjan Dass figures as the son of Sadhu Ram. In the sale deed dated Ex.D4, dated 12.6.1924 executed by All Mohammad in favour of Girdhari Lal, Surjan Dass, Maharaj Kishan etc. (Ex.D4) Surjan Dass is described as the son of Sadhu Ram. In sale deed dated 11.6.21 executed by Mohammad Ali etc. in favour of Surjan Dass, Girdhari Lal, Maharaj Kishan etc. (Ex.D5), Surjan Dass is shown to be the son of Sadhu Ram. Not only this, in execution of a decree against Chint Ram, Chint Rams house was attached. Surjan Dass raised objections against attachment of that house under Order 21 rule 58 CPC in the year 1922. In these objections as is clear from (EX.D7) he described himself as son of Sadhu Ram. In execution case No. 8 of 1922 as is clear from Ex.D8 he described himself as son of Sadhu Ram. He filed execution application on 2.11.1925 against Aman-Ul-Din son of Faquir Chand as is clear from (Ex.D9). There he described himself as the son of Sadhu Ram. One Gujjar Mal son of Maula Mal, caste Ahluwalia, resident of Miani Afgana described Surjan Dass as the son of Sadhu Ram in a suit for recovery of money on Bahi account instituted by him against Girdhari Lal, Surjan Dass, son of Sadhu Ram on 27.3.1928. In the year 1940, Surjan Dass describing himself as the son of Sadhu Ram instituted an application for sale of the land in the Court of Revenue Assistant with powers of Collector Hoshiarpur as is clear from Ex.D.11. While attaching the attachment of house belonging to Chint Ram, Surjan Dass set up a Will. In the year 1940, Surjan Dass describing himself as the son of Sadhu Ram instituted an application for sale of the land in the Court of Revenue Assistant with powers of Collector Hoshiarpur as is clear from Ex.D.11. While attaching the attachment of house belonging to Chint Ram, Surjan Dass set up a Will. If Chint Ram had adopted Surjan Dass, he would not have executed any will in favour of Surjan Dass. In Karayanama (rent deed) Ex.D.1 of the year 1927 Surjan Dass described himself as the son of Pt. Sadhu Ram. In the year 1922 he challenged the attachment of a house belonging to his father-in-law under Order 21 rule 58 CPC in which also he described himself to be the son of Sadhu Ram laying claim to that house on account of will by Chint Ram, Surjan Dass had been obtaining the land on mortgage in conjunction with his brothers Girdhari Lal and Maharaj Kishan etc. in his native village from the persons belonging to his native village. He had been purchasing the land from them in his native village. It is in evidence that he had been living in village Kartarpur right since his marriage with Chint Rams daughter. He had been living at Kartarpur since the death of that daughter of Chint Ram. It appears that the people of his village took this impression that he is the Pisar-Matbanna of Chint Ram from the fact that he had been living there with him as Khana Damad. Putting his signatures upon any sale deed or mortgage deed by Surjan Dass through which he was a vendee or a mortgagee cannot operate as his admission that he is the Pisar-Matbanna of Surjan Dass. Admission if it is to operate as admission must have been made with the intention that it was an admission. At the time when Surjan Dass and others obtained the land on mortgage or sale there was no occasion for him to say that he was Pisar- Matbanna of Chint Ram. So much value cannot be attached to this admission as the learned counsel for respondents No. 1 and 2 wants me to attach." 5. In view of the aforesaid observations, the learned first appellate Court accepted the appeal filed by defendant No. 1 and accordingly dismissed the suit filed by the plaintiffs. 6. So much value cannot be attached to this admission as the learned counsel for respondents No. 1 and 2 wants me to attach." 5. In view of the aforesaid observations, the learned first appellate Court accepted the appeal filed by defendant No. 1 and accordingly dismissed the suit filed by the plaintiffs. 6. Plaintiff No. 1 has felt dis-satisfied and has approached this Court through the present regular second appeal. 7. I have heard Shri Mukul Aggarwal, the learned counsel for the appellant and Shri R.L. Gupta, the learned counsel appearing for legal representatives of Surjan Dass and with their assistance have also gone through the record of the case. 8. Shri Mukul Aggarwal, the learned counsel for the appellant has argued that in fact the documents on the record, namely, jamabandis for the year 1922-23 Ex.P8, 1942-43 Ex.P9, 1950-51 Ex.P10, khatauni Ishtemalarazi Ex.P11 show that in the aforesaid revenue records Surjan Dass is recorded as Pisar Matbanna. Reliance has also been placed by the learned counsel on the mortgage deed Ex.PW1/A and the sale deed Ex.PW1/B in which Surjan Dass is also described as Matbanna of Chint Ram. However, as has been observed by the learned first appellate Court as well, the aforesaid documents do not contain the thumb impression or the signatures of Surjan Dass. Accordingly, the said documents do not advance the case of the plaintiffs in any manner. As far as the jamabandis are concerned, the said jamabandis also do not prove that at any point of time Surjan Dass was ever adopted by Chint Ram. 9. On the other hand, defendant No. 1 has produced Tamasak Ex.D2, executed by Ali Bakhsh and Naib Bakhsh in favour of Girdhari Lal and Surjan Dass. In the aforesaid documents, Surjan Dass is described as son of Sadhu Ram. Similarly, in the agreement Ex.D3 executed by Karam Alahi etc. on August 19, 1920 in favour of Girdhari Lal, Surjan Dass, Maharaj Kishan and Basheshar Nath, Surjan Dass has been described as son of Sadhu Ram. Similar description is contained in the document Ex.D4 dated June 12, 1924. In the sale deed Ex.D5 dated June 11, 1921 again Surjan Dass is shown to be son of Sadhu Ram. The defendants have also proved that in execution of a decree against Chint Ram his house was attached. Surjan Dass raised objections against attachment order in the year 1922. In the sale deed Ex.D5 dated June 11, 1921 again Surjan Dass is shown to be son of Sadhu Ram. The defendants have also proved that in execution of a decree against Chint Ram his house was attached. Surjan Dass raised objections against attachment order in the year 1922. In the aforesaid objections also he had described himself as son of Sadhu Ram. All these documents and the other documentary evidence produced on record have duly been considered by the learned first appellate Court. After considering the entire documentary evidence on the record, the learned first appellate Court has rightly come to the conclusion that Surjan Dass was at no point of time shown to be adopted by Chint Ram. Even otherwise, I find that the evidence produced by the plaintiffs is not sufficient to give any finding with regard to the fact that Surjan Dass was ever adopted by Chint Ram. The said evidence cannot be said to be in conformity with Section 50 of the Indian Evidence Act. Surjan Dass is alive. None of the witnesses produced by the plaintiffs have deposed that they had ever treated him as the son of Chint Ram, having been adopted by him. In the absence of any such proof the evidence led by the plaintiffs cannot be treated to be sufficient for giving a finding of adoption. 10. No question of law, much less any substantial question of law, arises in the present appeal. In view of the aforesaid discussion, I do not find any merit in the present appeal and the same is accordingly dismissed. No costs. Appeal dismissed.