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2011 DIGILAW 1624 (ALL)

Ram Chandra (Since Deceased) and Others v. Khem Chand @ Prem Chand and Another

2011-07-07

SHISHIR KUMAR

body2011
Hon’ble Shishir Kumar,J.—Heard learned counsel for appellants and learned counsel appearing for Respondents. 2. This is a defendants’ second appeal arising out of suit filed for cancellation of sale deed executed by defendants in favour of defendant Nos. 2 and 3 on 18.1.1989. 3. The facts as stated in the plaint are that plaintiffs are Bhoomidhar of Plot No.146 measuring about 3.13.7 and they are in possession of the property in dispute. Defendant No.1 is the co-owner of the property in dispute. During consolidation Khasra No.124 measuring about 0.5.0 and agriculture land Khasra No.146, share of the parties are one half. During consolidation plaintiffs and Defendant No.1’s father and defendant Ram Chandra deceased son of Ganga Ram was owner in possession of the property in dispute in which Ram Chandra was adopted by Ganga Ram having a share of one half. Ram Chandra was the son of Baldeva but he was adopted in the year 1930 before consolidation operation. Due to this adoption, he does not remain brother of plaintiffs as well as he was having no share in the property of plaintiffs. In spite of aforesaid fact on 18.1.1989 defendant No.1 has executed a sale deed in favour of defendant Nos. 2 and 3 measuring 2.15.1 only to deprive plaintiffs from the property in dispute. 4. Defendants filed their written statement denying claim made in the plaint stating therein that sale deed dated 18.1.1989 is not void document. Disputed plot No.146, defendant No.1 was the owner and father of defendant No. 2 Ram Swaroop alias Supa and plaintiffs and defendant No.1 got the share in the property. Defendant No.1 was having 2/3rd share in the plot in dispute and after death of defendant No.1, he got 1/4th share in the property in dispute. After death of Baldeva, name of defendant No.1 has been entered in the revenue record and nobody has raised any objection at any point of time, therefore, suit is barred as there was an implied consent. Further submission has been made that defendant Nos. 2 and 3 are minor, therefore, same is barred by Order 32, Rule 3 of the Code of Civil Procedure. After execution of sale deed, possession is with defendant Nos. 2 and 3 and their names have already been recorded. 5. On the basis of pleadings of parties various issues were framed. Further submission has been made that defendant Nos. 2 and 3 are minor, therefore, same is barred by Order 32, Rule 3 of the Code of Civil Procedure. After execution of sale deed, possession is with defendant Nos. 2 and 3 and their names have already been recorded. 5. On the basis of pleadings of parties various issues were framed. One of the issue was whether sale deed dated 18.1.1989 is liable for cancellation. Whether suit is barred under Order 32 Rule 3 of the Civil Procedure Code and under Section 333 of the U.P. Zamindari Abolition and Land Reforms Act. Further Issue No.5 was framed that whether after adoption deed, defendants have lost right in the property belonging to their original father. Issue Nos. 1 and 5 were clubbed together and has been decided that defendant No.1 was having 2/3rd share in the property and plaintiffs are not able to prove from the record that after adoption deed, defendant No.1 has lost his share in the property in dispute as it was pleaded on behalf of defendants-appellants that partition has taken place prior to the date of adoption. After holding this finding trial court has dismissed the suit vide its judgment and order dated 24.7.2002. 6. Plaintiffs aggrieved by aforesaid judgment and order filed an appeal and the Appellate Court after holding that in view of Section 12 of the Hindu Adoption and Maintenance Act, 1956, as soon as a person is adopted, he will immediately lost right of the property belonging to his original father. Appellate Court has placed reliance upon a judgement reported in AIR 1967, page 1761, Sawan Ram v. Smt. Kalawati and others. Further finding has been recorded that as regards adoption is concerned that has been admitted but, in case, name of adopted son is recorded in the revenue record, that will not accrue a right that a person will have right in the property belonging to original father. Further finding has been recorded that only on the ground that name of defendant No.1 as it was recorded as co-owner in the property being son of Baldeva will not accrue right to him to have a share and to execute the sale deed to the extent of his share which he was having before the date of adoption. Further finding has been recorded that only on the ground that name of defendant No.1 as it was recorded as co-owner in the property being son of Baldeva will not accrue right to him to have a share and to execute the sale deed to the extent of his share which he was having before the date of adoption. Appellate Court on the issue raised on behalf of defendants regarding the fact that suit is barred under Section 331 of the Zamindari Abolition Act has held that present suit has been filed for cancellation of sale deed, therefore, jurisdiction is with the Civil Court and the Revenue Court will have no jurisdiction for the said purpose. After recording such finding appeal has been allowed vide its judgment and order dated 16.4.2011. Hence, the present second appeal. 7. Learned counsel for appellants submits that admittedly adoption deed has not been proved, a specific finding has been recorded by the trial court. Further name of defendant No.1 was recorded and at the time of consolidation nobody has raised an objection, as such, presumption will be that defendant No.1 was having share in the property in dispute. Therefore, as he was co-sharer in the property of Baldeva, who was the father of defendant No.1, therefore, he can execute the sale deed to the extent of his own share in favour of defendant Nos. 2 and 3. During consolidation no objection was raised as well as factum of adoption deed has never been proved as held by the trial court but the Appellate Court has not considered the same and held otherwise without any evidence. Further submission has been made that in a proceeding under Section 229-B it has been held by the Commissioner that appellants are bonafide purchaser of the property in dispute and their names have been recorded that has not been taken into consideration by the court below. 8. On the other hand, learned counsel for respondents submits that once in view of Section 12 of the Hindu Adoption and Maintenance Act, 1956, adoption is there, a person concerned will loose the share in the property belonging to his original father. Recording name in revenue record will not accrue a right. Further Lower Appellate Court has recorded a specific finding that at no point of time adoption made in the year 1930 has ever been challenged and disputed. Recording name in revenue record will not accrue a right. Further Lower Appellate Court has recorded a specific finding that at no point of time adoption made in the year 1930 has ever been challenged and disputed. Factum of adoption has virtually been admitted. In case, during consolidation an objection has not been taken that will not accrue right to a person who has already relinquished his share belonging to his original father. Lower Appellate Court has taken into consideration all these facts and has held that trial court has committed an error apparent on the face of record. 9. I have considered the submissions of parties and have perused the record. From the record, it does not appear that factum of adoption has been disputed, though during argument it was submitted that part of that argument has not been accepted being fact that no documentary or oral evidence has been led on behalf of defendants to prove that there was no adoption. Virtually parties have admitted the adoption. Therefore, in view of Section 12 of the Hindu Adoption and Maintenance Act, 1956, as soon as adoption is complete, the person who has been adopted will loose his share in the property belonging to his original father. Recording name in the revenue record will not accrue right having a share in the property. As soon as he loose his share in the property he cannot execute a sale deed in favour of defendant Nos. 2 and 3. As regards order passed under Section 229-B, in my opinion, it is a summary proceeding which takes place for the purposes of recording name of a person in the revenue record, that will not accrue a right to a person on that basis. One thing has to be seen that once adoption is held to be valid and that was never challenged by anybody, in such circumstances, defendant No.1 cannot execute a sale deed of 1/4th share in the property belonging to Baldeva. 10. One thing has to be seen that once adoption is held to be valid and that was never challenged by anybody, in such circumstances, defendant No.1 cannot execute a sale deed of 1/4th share in the property belonging to Baldeva. 10. In my opinion, as lower court has not considered the said issue and the Appellate Court has recorded a specific finding to these issues after placing reliance upon Apex Court judgement, therefore, in my opinion, as finding recorded by courts below is a finding of fact, no interference is called for and as no substantial questions of law are involved in the present appeal, as such, it is hereby dismissed. 11. No order as to costs. (Appeal dismissed) _____________