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2006 DIGILAW 3054 (RAJ)

Kura adopted S/o Kalyan v. Ramkishan S/o Kalyan

2006-11-17

N.K.JAIN

body2006
Judgment Narendra Kumar Jain, J.-This is defendant’s second appeal under Section 100 of the Code of Civil Procedure (for short, ‘Civil Procedure Code’) directed against the Judgment and decree dated 23.07.1988 passed by the District Judge, Tonk, in Civil Regular Appeal No. 2/84 (74/86), whereby he dismissed the appeal of the defendant and affirmed the Judgment and decree dated 212.1983 passed by the Munsiff and Judicial Magistrate, Malpura, in Civil Suit No. 89/74, whereby the suit of the plaintiff-respondents for declaration and permanent injunction, was decreed. 2. This Court, while admitting the Second Appeal on 22.09.1988, formulated the following substantial questions of law:- “1. Whether on the basis of averments contained in the plaint the civil Court has jurisdiction to entertain the suit filed by plaintiffs and the said suit was not triable by Revenue Courts? 2. Whether the trial Court committed illegality and material irregularity in not taking on record the two documents which were writings in Bahis for Samvat Year 2017 and 2030 in the nature of admission of the plaintiff and when the said documents were produced at the very initial stage and for the purposes of cross-examination of the plaintiff and his witnesses.” 3. Briefly stated the facts of the case are that the plaintiff filed a suit for declaration and permanent injunction in the lower Court wherein it was pleaded that late Shri Kalyan was father of Plaintiffs No. 1, 3, 4, 5 and 6 and husband of Plaintiff No. 2, who died in Samvat Year 2017. The deceased left the property described in Schedule A and B appended with the suit. It was further pleaded that the plaintiffs are in possession of the entire property left by deceased but they have come to know that defendant Kura got the agriculture land, left by deceased Kalyan, mutated in this his name on 12.06.1964. It was pleaded that Kura was not legal heir of deceased Kalyan and he had no right to get the land, left by deceased Kalyan, mutated in his name, therefore, it was prayed that the plaintiffs be declared as legal heirs of deceased Kalyan and they are entitled to occupy the property described in Schedule A and B appended with the plaint and further that the defendant is not the legal heir of deceased Kalyan. 4. 4. The defendant Kura filed his written statement wherein it was pleaded by him that he was taken in adoption by deceased Kalyan in Samvat Year 2010 in the month of Kartik and he was living with deceased Kalyan as his son. He also pleaded that the land was rightly mutated in his name after the death of Kalyan. He admitted that the plaintiff Ramkishan and defendant Kura both are the owners of property left by deceased Kalyan, but other plaintiffs o not have any right whatsoever in the property left by deceased Kalyan. 5. The learned Lower Court, on the basis of the pleadings of the parties framed 13 issues, which have been reproduced in the Judgment s of both the Courts below. Both the parties led oral and documentary evidence. The learned lower Court, vide its Judgment and decree dated 212.1983, decreed the suit of the plaintiff and restrained the defendant from interfering with the possession of the property of the plaintiffs described in Schedule A and B of the plaint. The mutation entry dated 12.06.1964 (Exhibit-1) was also declared as null and void. The Plaintiffs No. 1 to 6 are legal heirs of deceased Kalyan, and defendant Kura is not his legal heir. In case defendant Kura is in possession of any of the property left by deceased Kalyan then his possession was declared as illegal. Being aggrieved with the same, an appeal was preferred by the defendant. 6. The learned first appellate Court, vide its Judgment and decree dated 23.07.1988, affirmed the finding of the lower Court in respect of all issues except Issue No. 12. So far as the Issue No. 12 is concerned, the learned first appellate Court reversed the finding of the lower Court and held that mutation entry can be declared as illegal by revenue Court only and not by the civil Court. However, it was observed that when the defendant has not been declared as adopted son of deceased Kalyan then the plaintiffs may move an applications and get the mutation entry corrected in the revenue record. In these circumstances, the present second appeal has been preferred by the defendant. 7. However, it was observed that when the defendant has not been declared as adopted son of deceased Kalyan then the plaintiffs may move an applications and get the mutation entry corrected in the revenue record. In these circumstances, the present second appeal has been preferred by the defendant. 7. The learned Counsel for the appellant challenged the finding of both the Courts below and contended that the defendant was taken in adoption by late Shri Kalyan which is proved from the evidence placed on the record and other documentary evidence which was placed on the record by him along with the application under Order 13 Rules 1 and 2 of the Civil Procedure Code, whereby he annexed two documents, but the learned lower Court wrongly rejected the application of the defendant vide order dated 212.1976. He also contended that in the facts and circumstances of the present case the civil Court had no jurisdiction to entertain, try and decide the present suit, therefore, his contention is that the Judgment and decree passed by both the Courts below be set aside and the suit of the plaintiffs be dismissed and both the questions formulated above be answered in favour of the defendant. 8. Per contra, learned Counsel for the plaintiffs-respondents contended that the second appeal was admitted and questions of law were formulated ex-parte, whereas both the questions do not arise in the facts and circumstances of the present case. He contended that in view of Sub-section 5 of Section 100 of the Civil Procedure Code he has a right to urge before this Court that the questions, so formulated, do not involve in the matter in the facts and circumstances of the present case. He also contended that the learned lower Court framed Issue No. 2 as to whether the defendant Kura is an adopted son of deceased Kalyan and whether he was taken in adoption according to the usage and customs prevalent in the community. The said issue could have been decided only by the civil Court and not by the revenue Court and it was the main issue in the facts and circumstances of the present case. The dispute was in respect of residential house and agriculture land, both, and in respect of legal heirs of deceased Kalyan. These questions could be tried and decided by civil Court only. The dispute was in respect of residential house and agriculture land, both, and in respect of legal heirs of deceased Kalyan. These questions could be tried and decided by civil Court only. So far as declaration of mutation entry as illegal is concerned, the first appellate Court itself has reversed the finding of the lower Court in respect of Issue No. 12. which was relating to revenue Court, therefore, the Question No. 1 formulated by this Court does not arise in the facts and circumstances of the present case. So far as Question No. 2 formulated by this Court is concerned, he contended that the order dated 212.1976, whereby the application filed by the defendant under Order 13 Rules 1 and 2 of the Civil Procedure Code was rejected by the lower Court, is concerned, the said order was not challenged by the defendant in the memo of first appeal. He further contended that, even during the course of arguments, the said order dated 212.1976 was not challenged by the defendant as the same does not find place in the Judgment and decree of the first appellate Court. Therefore, the said point cannot be allowed to be agitated before this Court directly, therefore, in these circumstances the second question also does not arise in the present case. He also contended that so far as other questions are concerned, the same relate to question of facts and there is concurrent findings of facts by both the Courts below in favour of the plaintiffs which can not be interfered with by this Court in second appeal under Section 100 Civil Procedure Code. Therefore, he contended that the second appeal of the defendant be dismissed with costs. 9. I have considered the submissions of the learned Counsel for both the parties. 10. This Court admitted the second appeal and formulated the substantial questions of law, as reproduced above, ex-parte on 22.09.1988 after hearing learned Counsel for the defendant-appellant. Sub-section 5 of Section 100 of the Civil Procedure Code makes it clear that the appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question. The respondent is, therefore, within his right to argue that substantial questions of law formulated in the case do not involve. 11. The respondent is, therefore, within his right to argue that substantial questions of law formulated in the case do not involve. 11. The Question No. 1 relates to jurisdiction of the civil Court to entertain, try and decide the present suit. I have considered the contents of the plaint and I find that the main controversy involved in the present suit was about the legal heirs of deceased Kalyan. Whether the plaintiffs were legal heirs of deceased Kalyan and defendant was not his legal heir, was the main question, which was to be tried in the present suit. The another question was as to whether the defendant Kura was adopted son of deceased Kalyan as he was taken in adoption by him. There is no dispute between both the parties that the aforesaid questions could be tried and decided only by the civil Court. This Court, while deciding Smt. Parwati & Ors. vs. Smt. Surji, S.B. Civil Reference No. 78 of 1979, vide order dated 12.07.2006, considered the question about jurisdiction of the Revenue and Civil Court and after considering various authorities on the point, held that the relevant factors for determination of the jurisdiction of the Civil or Revenue Court is the averment of the plaint and not alone the relief claimed in the plaint. It is relevant to mention that Issue No. 12 was about declaring the mutation entry as illegal, which could be decided only by revenue Court, and the first appellate Court itself has reversed the finding of the lower Court in respect of Issue No. 12 and held that the said entry can be corrected only by the revenue Court. The other issues were triable by the civil Court and in these circumstances I am of the view that the present suit has rightly been entertained, tried and decided by the Civil Court and the question No. 1 formulated above is answered accordingly. 12. So far as Question No. 2 formulated and reproduced above is concerned, I find that two documents, which were writings in Bahis for Samvat Year 2017 and 2030, were not taken on the record and the application filed by the defendant under Order 13 Rules 1 and 2 was rejected vide order dated 212.1976. The suit was ultimately decreed vide Judgment and decree dated 212.1983. The suit was ultimately decreed vide Judgment and decree dated 212.1983. The learned Counsel for the appellant admits that the order dated 212.1976 was not challenged by the defendant before the first appellate Court. There is no ground challenging the order dated 212.1976, in the memo of the first appeal. From the Judgment of the first appellate Court also it is clear that the said point has not been referred and considered in it, which shows that it was not agitated even during the course of arguments before the first appellate Court. In these circumstances, it is clear that the said question was abandoned by the defendant and thus he cannot be allowed to challenge the said order in this second appeal, therefore, the Question No. 2 formulated in the case does not arise in the facts and circumstances of the present case. It is relevant to mention that by producing these two documents the defendant wanted to prove that he was taken in adoption by deceased Kalyan. In this connection it is relevant to mention that Issue No. 2 was specifically framed in the case whether defendant Kura was taken in adoption by Kalyan, or not. Both the Courts below, after considering oral and documentary evidence, recorded the finding that the defendant was not taken in adoption and he was not the adopted son of Kalyan. The question of fact adoption is purely a question of and there is concurrent finding of fact by both the Courts below, which cannot be interfered with by this Court in second appeal under Section 100, Civil Procedure Code. 13. In view of the foregoing reasons, I do not find any merit in this second appeal and the same is accordingly dismissed, with no order as to costs.