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2011 DIGILAW 1002 (JHR)

Suresh Prasad v. Sudeshwar Prasad Pandit

2011-11-16

N.N.TIWARI

body2011
Order This appeal has been preferred by defendant - appellant. 2. The plaintiffs had filed Title Partition Suit No. 4 of 1999 claiming their 1/3rd share in the suit property. 3. The case of the plaintiffs was that Bhual Ram and Ram Naresh Ram were the own brothers. The plaintiff no.1Sudeshwar Prasad Pandit was the son of Ram Naresh Ram. When the said plaintiff no.1 was aged about one year, Ram Naresh Ram died leaving behind his elder brother - Bhual Ram. After the death of father - Ram Naresh Ram, the plaintiffs' mother became sick and her health deteriorated day by day due to sorrow and grief, after the demise of her husband. 4. When the plaintiff no.1 was aged about two years, Bhual Ram was issueless. The said Bhual Ram approached the widow of Ram Naresh Ram, namely, Indra Devi, natural mother of plaintiff no.1Sudeshwar Prasad Pandit and had expressed his desire to take the plaintiff no. 1 in adoption as his son. Indra Devi agreed to the said proposal. The said Bhual Ram, thereafter, adopted the plaintiff no.1 after observing and performing all the religious and customary rites of adoption including giving and taking ceremony. The same was followed by Puja and the feast in presence of the relatives and the family friends. Since thereafter the plaintiff no.1 was - treated as son of Bhual Ram. He was brought up under the care and protection of adoptive parents. After about six months, natural mother of plaintiff no. 1 expired. After about two years, the adoptive parents were blessed with a son. Two sons and three daughters were born subsequently. The plaintiff no. 1 - Sudeshwar Prasad Pandit was treated as eldest son of Bhual Ram. Bhual Ram purchased land measuring 10 kathas of plot no. 6164 (new) corresponding to plot no. 153 (old), Thana No. 1642 appertaining to khata no. 1 of village - Ulidih, .Mango Dimna Road andhad constructed a house consisting of 23 pucca rooms including time shop room. He also constructed a Well. 5 kathas of vacant land is still lying in the back side of the constructed house. The parties have also got some immovable property at their native place. Bhual Ram subsequently died leaving behind three sons and three daughters including plaintiff no.1. He also constructed a Well. 5 kathas of vacant land is still lying in the back side of the constructed house. The parties have also got some immovable property at their native place. Bhual Ram subsequently died leaving behind three sons and three daughters including plaintiff no.1. After the death of Bhual Ram, the defendant - appellant maliciously and forcibly tried to drive out the plaintiffs from the suit property. The dispute led to a proceeding under Section 144 Cr.P.C. and other criminal case. In view of the said dispute, the plaintiffs requested the defendant to partition the suit property. But his request was not heeded upon by the respondents. The plaintiffs, thereafter, filed the suit. The plaintiffs are entitled to get 1/3rd share in the suit property. 5. The defendant contested the suit and, inter alia, denied and disputed the plaintiffs' claim of adoption by Bhual Ram. It has been stated that plaintiff no. 1 is the son of late Ram Naresh Ram. He has no share in the property of late Bhual Ram. The claim of adoption is false and fabricated. Bhual Ram left behind his sons and daughters. The plaintiff no. 1Sudeshwar is not the legal heir or successor of Bhual Ram. During life time of Bhual Ram, the sons and daughters were separated. They have separate mess and residence. There is no unity of title and possession. The suit for partition is not maintainable and is liable to be dismissed. 6. The defendant nos. 2 & 4 filed separate written statement and supported the claim of plaintiff no. 1- Sudeshwar Prasad Pandit. They admitted that plaintiff no. 1 is the adopted son of their father late Bhual Ram. He was brought up by their father as his son. Plaintiff No.1 is one of the brothers of the defendants and all of them have been living jointly. The plaintiffs and the defendant have jointly inherited the suit property and each have got 1/6th share in the suit property. 7. On the basis of the said claims in pleadings, learned trial court framed several issues and one specific issue was framed as to whether plaintiff no. 1Sudeshwar Prasad Pandit was the adopted son of late Bhual Ram? 8. Learned trial court on discussion of the facts and evidences on record held that the plaintiff no. 7. On the basis of the said claims in pleadings, learned trial court framed several issues and one specific issue was framed as to whether plaintiff no. 1Sudeshwar Prasad Pandit was the adopted son of late Bhual Ram? 8. Learned trial court on discussion of the facts and evidences on record held that the plaintiff no. 1 was adopted as son by late Bhual Ram and he is entitled to get share in his property like other sons learned trial court answered almost all issues including Issue No. 3 in favour of the plaintiffs and decreed the suit. 9. The defendant preferred appeal against the said judgment and decree in the Court of learned District Judge, Jamshedpur being Title Appeal No. 33 of 2004. 10. The said appeal was transferred to the court of 2nd Additional Sessions Judge, Jamshedpur, who finally hard and decided the appeal. 11. Learned lower appellate court heard the parties and discussed and considered the facts and evidences on record. He dealt with the appeal issue - wise as framed by learned trial court. Learned lower appellate court after thorough appraisal of the evidences and materials on record, decided issue no. 3 specifically holding that the plaintiff no. 1-Sudeshwar Prasad Pandit is the adopted son of late Bhual Ram and that learned trial court had rightly held late Bhual Ram was the adoptive father of plaintiff no. 1- Sudeshwar Prasad Pandit. Learned lower appellate court further decided other issues in favour of plaintiffs and concurred with the finding of facts arrived at by learned trial court. Learned lower appellate court dismissed the appeal. 12. In this second appeal, the said judgment and decree of learned lower appellate court has been assailed on the ground that though there is concurrent finding of facts recorded by learned two courts, it failed to take into consideration that the evidence of such witness has also been taken into consideration, who was not born on the date of adoption. The evidence of adoption is insufficient, inasmuch as, learned courts below failed to take into consideration that there were other sons and daughters and there was no occasion for late Bhual Ram to adopt the plaintiff no. 1 as his son. Learned courts below without considering the same and a so without considering that other properties were also available for partition decreed the plaintiffs suit for partition. 13. 1 as his son. Learned courts below without considering the same and a so without considering that other properties were also available for partition decreed the plaintiffs suit for partition. 13. I have heard learned counsel for the appellant and the respondents. I have also perused the judgments and decree of learned courts below. 14. On perusal of the records and after hearing the submissions, I find that there was main contest on the claim of adoption of plaintiff no. 1. The other issues have not been seriously contested. Even the question of partial partition has not been seriously agitated in the appeal as is evident from the records. 15. So far as the claim of adoption of plaintiff no. 1- Sudeshwar Prasad Pandit is concerned, the same has been specifically discussed by framing a specific issue by learned trial court as issue no. 3. Both the parties led their evidences on the said issue. Learned trial court discussed the same in detail and after appraising the evidences and materials on record, held that the plaintiff no. 1 is the adopted son of late Bhual Ram. 16. Before learned lower appellate court, the said point was vehemently agitated by the appellant and the said court also has gone in detail for deciding the said issue. Learned lower appellate court has separately dealt with the said issue no. 3 in paragraph - 6 of the impugned judgment. In paragraph - 8, it recorded its conclusion as follows:- "Thus from the evidence of witnesses on behalf of the defendant no. 1 i.e. evidence of D.W. 1- Mohan Choubey who is aged about 50 years, D.W. 2 - Raj Kumar Sharma aged about 44 years and defendant no. 1- Suresh Pd. who is aged about 52 years it clearly comes out that before their birth, the adoption, as according to the plaintiffs, was taken place and they cannot be taken to be the eye witness of the adoption of the plaintiff no. 1. Further ground for denying the adoption by these witnesses is that the plaintiff no. 1 Sudeshwar Pd. took his share in the properties left by his natural father and so he cannot be defined as adopted son of Bhual Ram. 1. Further ground for denying the adoption by these witnesses is that the plaintiff no. 1 Sudeshwar Pd. took his share in the properties left by his natural father and so he cannot be defined as adopted son of Bhual Ram. It may be mentioned here that this part of the evidence speaks about the existence of certain documentary evidence but no documentary evidence is coming from the side of the defendant in order to show that the plaintiff no. 1- Sudheswar Pd. actually took the shares in the properties left by his father or dealt with that property, it has already been found while discussing the evidence of these D.Ws. that they are not competent to say on the point that defendant no. 1 is not the adopted son of the Bhual Ram as aforesaid. Therefore, it comes out that only the oral testimony of the D.Ws., it is fit to be accepted in the eye of law. There is no other evidence on behalf of the defendant to prove that plaintiff no. 1 is not adopted son of the Bhual Ram rather on behalf of the plaintiff, plaintiff no. 2 and other witnesses including P.W. 3 Ganouri Pandit, close relative of the plaintiffs and defendants, and also the defendant no. 3 Ram Swari Devi, sister of plaintiff and defendant both, are categorically saying that plaintiff no. 1 Sudheswar Pd. is the adopted son of Bhual Ram and they came to know about the adoption by Bhual Ram himself. Now on behalf of the plaintiffs, some documentary evidence has also been filed which are Ext. - 3, the Identity Card of plaintiff no. 1-Sudheswar Pd. issued by Jamshedpur Workers Collage, Sakchi in the year 1971 wherein the father's name of the aforesaid Sudheswar Pd. has been given as Shree Bhual Ram. The college leaving certificate Ext.- 4 has also been filed on behalf of the plaintiff which has been issued on 5.10.99 wherein Sudheswar Pd., the plaintiff no. 1 has shown to be the son of late Bhual Ram having date of birth in the year 1940 i.e. 21.7.40. The another document is the certificate issued by Bihar School Examination Board in favour of the plaintiff no. 1, Sudheswar Pd. wherein Sudheswar Pd. has been shown to be son of Bhual Ram and his date of birth has been given as 21.7.1940 the another document is Ext. The another document is the certificate issued by Bihar School Examination Board in favour of the plaintiff no. 1, Sudheswar Pd. wherein Sudheswar Pd. has been shown to be son of Bhual Ram and his date of birth has been given as 21.7.1940 the another document is Ext. - 5 the Will alleged to have been executed by Bhual Ram, as regards this Will, it is submitted on behalf of the defendant no. 1 appellant that the Will has not been probated. However, according to this Will, there is no question at present that whether any title has been passed by this Will or not but there is an assertion made by the aforesaid Shual Ram in that Will is that the aforesaid Sudheswar Pd. is his adopted son. To controvert, these documents, absolutely there is nothing on behalf the defendant. Now, during argument, Ld. Counsel appearing on behalf of the defendant no. 1 also has referred A.I.R. 1996 Punjab and Haryana 203 which reads as follows:- "(B) Hindu Adoption and Maintenance (78 of 1956) - Section 16 – adoption – proof -ceremony of giving and taking have to be proved - it has to be shown that after adoption, adoptee was treated as his son by adopter mere placing or registered adoption deed is not sufficient." Here in this case as discussed above, it is the case of the plaintiff in their plaint that after death of natural father of plaintiff no. 1- Sudheswar Pd. and while the mother of plaintiff no.1 was sick, the aforesaid Bhual Ram was issueless and as such Bhual Ram taking consent of his wife Hulashi Devi took plaintiff no. 1 in adoption and the natural mother of plaintiff no. 1 gave the plaintiff no. 1 in adoption to said Bhual Ram and necessary ceremonies for the adoption such as giving and taking in adoption, Puja was performed according to the Hindu rites and customs. P.W. 1- Dinesh Pd. Pandit one of the plaintiff has also said in his evidence in para 4 which has been discussed above that Shual Ram took the plaintiff no. 1 in his lap in token of adoption by performing all the ceremonies and Indra Devi, natural mother of the plaintiff no. 1 willingly gave her son, plaintiff no. 1, in adoption to said Shual Ram. 1 in his lap in token of adoption by performing all the ceremonies and Indra Devi, natural mother of the plaintiff no. 1 willingly gave her son, plaintiff no. 1, in adoption to said Shual Ram. The other witnesses examined on behalf of the plaintiff as discussed above are also saying in their respective evidence that they come to know about the fact from Bhual Ram itself and the defendant no. 3 the sister of plaintiffs and other defendant the sisters are also supporting this part of the case in her pleadings and as also in her evidence. There fore from the evidence available on the record though. it comes out that there is no eye witness on the point of ceremonies of giving and taking in adoption but there are evidence of the P.Ws. as also of D.W. 3, the other brother and sister of plaintiff no.1 except the appellant that Bhual Ram took Sudheswar Pd.. plaintiff no. 1 in adoption and also the documentary evidence, the certificate issued by the Examination Board in favour of the plaintiff no. 1- Sudheswar Pd. College leaving certificate of the aforesaid Sudheswar Pd. and I - Card of the College in favour of Sudheswar Pd., and also the Will executed by Bhual Ram in which there is assertion that Sudheswar Pd. is his adopted son All the evidences oral and documentary as. discussed above. clearly proves that after adoption. the adoptee was treated as his son by the adopter. The ceremonies of giving and taking in adoption has been proved by the plaintiff and it has been shown that after adoption, the adoptee Sudeshwar Pd. was treated as the son of his adopter Le. Bhual Ram and as such I find and hold that the Ld. Trial Court has rightly held in his judgment that Bhual Ram is adoptive father of plaintiff no. 1-Sudheswar Pd. and in the facts and circumstances of the case and evidence available on' the record and also come to a finding in favour of the plaintiff that plain~iff no. 1-Sudheswar Pd. is the adopted SO'l of Bhual Ram and accordingly this i sue is decided in favour of the plaintiffs' 17. 1-Sudheswar Pd. and in the facts and circumstances of the case and evidence available on' the record and also come to a finding in favour of the plaintiff that plain~iff no. 1-Sudheswar Pd. is the adopted SO'l of Bhual Ram and accordingly this i sue is decided in favour of the plaintiffs' 17. Learned lower appellate court has, thus, thoroughly discussed the facts evi~ dences and material on record and has rendered his own finding holding that Sudeshwar Prasad Pandit is the adopted 2012(3) JLJR Jharkhand Public Service ( son of late Bhual Ram. Learned lower appellate court upheld the judgment and decree of learned trial court by recording sound reasons. 18. The findings of learned courts below on the said issue and other issues are based on detail discussion and appreciation of evidences on record. The said concurrent finding of facts are binding on this Court in second appeal. 19. I find no error or illegality in the said findings and the judgments and decrees of learned courts below giving rise to any substantial question of law. 20. This appeal is, accordingly, dismissed. .