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2005 DIGILAW 2232 (RAJ)

Ramgopal v. Mst. Soni

2005-08-24

AJAY RASTOGI, V.K.BALI

body2005
Judgment V.K. Bali, J.- This appeal has been directed by the plaintiff who succeeded even though before the trial Court in proving that he was adopted son of Shri Narayan and Smt. Soni and thus was able to obtain decree of partition, lost his cause as the first appeal preferred by Smt. Soni against the Judgment and decree passed by the learned trial Judge was allowed by the learned Single Judge of this Court vide order dated 14th August, 1991. 2. Brief facts giving rise to the present appeal reveal that the plaintiff appellant filed suit for partition with regard to some immovable properties as detailed in the plaint. This suit was filed against Smt. Soni alleged to be adoptive mother of the plaintiff . The burden of the plaint was that he was natural son of one Shri Ladu but was given in adoption by his natural parents to the defendant and her husband late Shri Narayan on Mah Sudi Panchami Samvat 2020 and since then he was residing like son with the defendant and her late husband Shri Narayan his adoptive father, who died in 1977 and thereafter, relations between him and his adoptive mother got strained. It is in the circumstances as detailed above, that he filed a suit for partition claiming half share in the property left by his adoptive father Shri Narayan. 3. The suit of plaintiff was contested by Smt. Soni on a number of pleas, as would be reflected from the issues framed by the trial Judge. The crucial issues were with regard to adoption of the plaintiff by the defendant and her late husband on the day as mentioned in the plaint. The learned trial Judge discussed issues No. 1 and 2 together and on the basis of evidence led by the parties, returned the finding that the plaintiff was indeed adopted son of the defendant and her late husband. The suit for partition was decreed by Judgment and decree passed by the trial Judge on 14th August, 1984. Aggrieved thereby, Smt. Soni sole defendant filed an appeal before this Court, which was allowed by learned Single Judge of this Court vide Judgment dated 14th August, 1991. It is against this Judgment of the learned Single Judge that the present appeal has been filed. 4. Aggrieved thereby, Smt. Soni sole defendant filed an appeal before this Court, which was allowed by learned Single Judge of this Court vide Judgment dated 14th August, 1991. It is against this Judgment of the learned Single Judge that the present appeal has been filed. 4. Counsel for appellant vehemently contends that the first appellate Court did not give any specific reason for reversing the finding of the learned trial Judge and for that reason alone, the Judgment of the learned Single Judge needs to be set aside. For the aforesaid contention, the Counsel relies upon the Judgment of Supreme Court in the case of Radha Prasad Singh vs. Gajadhar Singh, AIR 1960 SC 115 and some other Judgment s on the same point. Learned Counsel for defendant-respondent, however, joins issue with the Counsel for appellant on the points mentioned above. 5. We have heard learned Counsel for parties and with their assistance examined the record of the case. 6. During the course of arguments, it could not be disputed and so is also the finding of the learned Single Judge that onus to prove that the plaintiff was adopted son of the defendant and her late husband, was upon the plaintiff . For so holding, learned Single Judge relied upon Judgment s of the Supreme Court in the case of A. Raghavamma vs. Chenchamma, AIR 1964 SC 136 , Kishori Lal vs. Mt. Chaltibai, AIR 1959 SC 504 and Mst. Bajji vs. Bhairon, 1957 RLW 254. 7. On appreciation of evidence, it was further found by the learned Single Judge that the plaintiff as per his own version was adopted at the time when his adoptive father was only 27 years of age. In that context, learned Single Judge held that it could not be accepted that a person would adopt anyone as his son. 8. Learned Single Judge also took into consideration non-production of documents which are normally prepared at the time of death ceremony of a person, in the present case on the death of adoptive father of plaintiff as also non-production of the witness who is said to have prepared the said document. Learned Single Judge also took into consideration various documents, in which the plaintiff was continued to be recorded as son of his natural father namely; Ladu. Learned Single Judge also took into consideration various documents, in which the plaintiff was continued to be recorded as son of his natural father namely; Ladu. The learned Single Judge referred to Exhibit A-1 death certificate, Exhibit A-2 Ration Card and Exhibit A-3 Voter list of Panchayat. As compared to the documentary evidence as mentioned above, in so far as plaintiff is concerned, he relied only on oral statements made by some of the witnesses, out of whom one was Sarpanch. 9. This Court is of the firm view that the learned Single Judge while reversing the finding on issues No. 1 and 2 as framed by the trial Court, has correctly appreciated the oral and documentary evidence that was available on records of the case. It is significant to mention that even though the plaintiff is stated to have been adopted by the defendant and her late husband in 1963 and suit was filed in 1979, in a period of 16 years the plaintiff could not prove his adoption by a single document. Documentary evidence as mentioned above, in our view, has rightly been preferred and given precedence over oral evidence led by the plaintiff . The case in hand involves only questions of fact and once this Court comes to the conclusion that the learned Single Judge has arrived at a correct finding after taking into consideration the entire evidence, there cannot be any scope for interference in second appeal. In so far as the contention of the learned Counsel for appellant that the learned Single Judge has not taken into consideration the findings recorded by the learned trial Judge while reversing his Judgment , is concerned, suffice it to State that the same is factually incorrect. The learned Single Judge decided the issue drawing correct inference from the age of adoptive parents and documentary evidence in preference to oral evidence. We do not find any infirmity or illegality in the Judgment of the learned Single Judge in the present appeal. Finding no merit in the appeal, it is dismissed.