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2014 DIGILAW 825 (PNJ)

Ramesh Kumar v. Jai Bhagwan

2014-05-09

RAKESH KUMAR JAIN

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Rakesh Kumar Jain, J. 1. The plaintiffs sought a declaration that they were entitled to 1/3rd share in all the suit land detailed in paras No. 2A, 2B and 2C of the plaint, correction of the revenue record, to restrain the defendants from ousting them from the joint user and also from alienating the suit land. The plaintiffs and defendants are related to each other. In order to understand their relation, the following pedigree table is reproduced:-- According to the aforesaid pedigree table, Jas Ram was the common ancestor of the parties who had three sons, namely, Shiv Sahai, Partap and Khushali. Khushali was issueless and had adopted Sukhi S/o. Shiv Sahai. Sukhi had further two sons, namely, Mam Chand and Gian Chand. Mam Chand is the predecessor-in-interest of plaintiffs No. 1 to 6 and Gian Chand of plaintiffs No. 7 to 9. After the death of Jas Ram, the suit property was inherited by his three sons in equal shares. After the death of Khushali, his 1/3rd share was inherited by his adopted son Sukhi and after his death, his 1/3rd share was inherited by his two sons Mam Chand and Gian Chand. After the death of Mam Chand, his share was inherited by plaintiffs No. 1 to 6 and share of Gian Chand was inherited by plaintiffs No. 7 to 9, but due to mistake of the revenue authorities, suit land was not reflected in the name of Sukhi to the extent of 1/3rd share, which came to the notice of the plaintiffs on 03.02.2003 when they obtained copy of the jamabandi from the Patwari. The defendants, on the basis of wrong and illegal entries in the description of the shares, were trying to oust the plaintiffs and to alienate more than 2/3rd share, therefore, the need to file the suit for declaration and permanent injunction has arisen. 2. After notice, defendants No. 1 to 11, 13, 15, 17 and 21 appeared and filed their joint written statement denying that Sukhi S/o. Shiv Sahai was adopted by Khushali. It was stated that Khushali had died issueless and thus, the plaintiffs have no right in the land measuring 13 kanal 10 marlas, situated within the revenue estate of village Piala, Tehsil Ballabgarh, District Faridabad and the matter relating to his land has already been decided between the parties by the Court of Sh. S.K. Garg, Addl. It was stated that Khushali had died issueless and thus, the plaintiffs have no right in the land measuring 13 kanal 10 marlas, situated within the revenue estate of village Piala, Tehsil Ballabgarh, District Faridabad and the matter relating to his land has already been decided between the parties by the Court of Sh. S.K. Garg, Addl. Civil Judge, Faridabad on 17.01.2001 in the suit titled as "Smt. Chironi v. Khem Chand etc.". The appeal filed against the order dated 17.01.2001 was also dismissed on 11.09.2003. It was also denied that the plaintiffs have any share in the suit property mentioned in para No. 2C of the plaint, but the share of the plaintiffs in the land described in paras No. 2(A) and 2(B) is also 1/8th and not 1/3rd, as alleged. It is also submitted that Sukhi was son of Shiv Sahai, therefore, there was no question of his inheriting the share of Khushali. 3. The other defendants were proceeded against ex-parte vide order dated 20.11.2003 and 09.09.2004. 4. On the pleadings of the parties, following issues were framed by the trial:-- "1. Whether the plaintiffs entitled for decree for declaration to the effect that they are entitled for 1/3rd share in the suit land mentioned in para No. 2(A), (B) and (C) of the plaint? OPP. 2. Whether the plaintiffs entitled for decree for permanent injunction against the defendants from dispossessing the plaintiffs to the extent of 1/3rd share? OPP. 3. Whether the suit is not maintainable in the present form? OPD. 4. Whether the plaintiff have no cause of action to file the present suit? OPD. 5. Whether the plaintiffs have suppressed the materials facts and have not come with clean hands before the Court? OPD. 6. Relief." 5. In order to prove their case, plaintiffs have examined Virender as P.W. 1, Balwant as PW2, Atul Mangla as PW3, Girraj as PW4, Punam Arora, Record Keeper, SDO, Ballabgarh as PW5, Hari Chand as PW6, M.C. Sharma, Advocate, as PW7, R.D. Prashar, Advocate, as P.W. 8 and tendered following documents:-- On the other hand, defendants have examined Khem Chand as D.W. 1, Jai Parkash as D.W. 2 and, thereafter, evidence of the defendants was closed after tendering following documents:-- "Ex. D1 Certified copy of amended plaint titled "Smt. Chiranji v. Khem Chand" Ex. D2 Certified copy of judgment dated 17.1.2001 titled "Smt. Chiranji v. Khem Chand" Ex. D1 Certified copy of amended plaint titled "Smt. Chiranji v. Khem Chand" Ex. D2 Certified copy of judgment dated 17.1.2001 titled "Smt. Chiranji v. Khem Chand" Ex. D3 Certified copy of decree sheet titled as "Smt. Chiranji v. Khem Chand" Ex. D4 Certified copy of appeal in Chiranji v. Khem Chand Ex. D5 Order of DRO dated 30.07.1993" 6. As a matter of fact, the core issue in this case was that as to whether Sukhi was adopted by Khushali or not because if the adoption is proved to have taken place, then the present plaintiffs, who are successors-in-interest of Sukhi, could claim the property of Khushali. In this regard, the Trial Court has made the following observations:-- "10. In view of the submissions made by learned counsel for plaintiff and defendant, this Court is of the opinion that undisputedly Jasram was common ancestor of parties to the suit, who had three sons, namely, Shiv Sahai, Partap and Khushali. He was the owner of the suit property described in para No. 2(a), (b) and (c) of the plaint. It is also admitted that Sukhi was real son of Shiv Sahai and Khushali died issueless. After the death of Jasram, the property was divided into his three sons to the extent of 1/3rd share each. As per the version of plaintiff, Khushali had adopted Sukhi, therefore, the share of Khushali would be inherited by Sukhi and after his death father of plaintiff Mam Chand and Gian Chand. The plaintiffs were required to prove this factum that Sukhi went in adoption to Khushali and, therefore, he had inherited the share of Khushali in the suit property. In order to prove this version plaintiffs have placed several Jamabandies of the disputed land on record. Jamabandi of land situated in village Dunsha and Asawati, goes to show that land in dispute is recorded in the name of predecessor of plaintiff and defendant. However, in the year 1945-46 Ex. PX/4/H land mentioned in para No. C of the plaint which is situated in village Piala, the name of Sukhi is recorded as "Sukhi Pissar Mut Bana Khushali". In Ex. PX2, which is Jamabandi of year 1954-55, these entries are same i.e. Sukhi Pissar Mutt Banna Khushali. From these entries in Jamabandies, it is clear that Sukhi is recorded as adopted son of Khushali in that year. Moreover, defendants have not challenged these entries in Ex. In Ex. PX2, which is Jamabandi of year 1954-55, these entries are same i.e. Sukhi Pissar Mutt Banna Khushali. From these entries in Jamabandies, it is clear that Sukhi is recorded as adopted son of Khushali in that year. Moreover, defendants have not challenged these entries in Ex. P37 which is mutation No. 634 name of Sukhi-ram is recorded as adopted son of Khushali. This mutation of inheritance of Sukhiram was sanctioned in the name of Mam Chand and Gian Chand. Still, further in Ex. P35 which is mutation No. 574 Sijra Nasab is mentioned in which Sukhiram has been shown as son of Shiv Sahai. However, in column No. 15, there are remarks that as Sukhiram has been adopted by Khushali, therefore, his name is deleted from the lineage of Shiv Sahai. This mutation was sanctioned at the death of Shiv Sahai and the property owned by Shiv Sahai was changed in the name of Har Parsad, Pyare Lal, Ramji Lal. Fourthly in Ex. P34, which is Nasab Sijra Nasab, there is entry below the name of Sukhi that he is adopted by Khushali and his name has been changed in the lineage of Khushali. In Balwant Singh v. Daulat Singh, 1997(3) R.C.R. (Civil) 409 : 1997(2) PLJ 132 Hon'ble Supreme Court of India held that mutation entries must be taken as correct unless contrary is established. As per section 44 of Punjab Land Revenue Act, the word "entry" includes relationship of parties as stated in record of rights. Person shown in record of rights as having a particular relationship with another person interested in the said, must be presumed to be possessed the relation unless contrary is proved as held in Gurmel Singh v. Prem Kumar, 1970 PLJ 173. Fifthly, in mutation No. 83 Ex. PX 1/H, a Sijra Nasab has been shown in which Sukhiram is recorded in the lineage of Khushali, as his adopted son. There is specific noting in this mutation that Tulsi Ram, Rattan Singh etc. along with Chadlu Namberdar came there and alleged that Sukhi is not adopted son of Khushali on which Sukhi has given a decision dated 30.1.25. After perusing the same, 1/8th share of disputed land was given to Sukhi and remaining 1/8th share was left for the son of Partap and it was presumed that Sukhi was adopted son of Khushali. 11. After perusing the same, 1/8th share of disputed land was given to Sukhi and remaining 1/8th share was left for the son of Partap and it was presumed that Sukhi was adopted son of Khushali. 11. As far as the contention of counsel for defendant that the matter has also been decided in between the parties and shares in the suit land was divided in between the son of Jasram is concerned, then this Court express its inability to appreciate the same because perusal of plaint Ex. PW3/1 goes to show, that the pleading of the case was on different issue. In that case, occupancy rights were claimed. Perusal of Jamabandi dated 17.1.2001 goes to show that matter was not decided with regard to shares in suit property. Moreover, the next averment of defendant that no adoption deed has been placed by plaintiff is also whittled down because from the revenue record placed on file, it is established that Sukhi was adopted son of Khushali. In Reddy Subbarao v. Nunne Venkatramanna, 2008(2) HLR 30 (A.P.). it is held by Andhra Pradesh High Court that adoption can be proved by even oral evidence and production of deed of adoption or execution of deed evidence in adoption is not mandatory. In our case, plaintiff has successfully established from the other documents placed on record that they are entitled for the share inherited by Khushali due to the reason that Sukhi was their grandfather who was adopted son of Khushali. Hence, these issues are decided in favour of plaintiffs." On the basis of the aforesaid observations, the suit was decreed and it was declared that the plaintiffs are entitled to 1/3rd share in the suit land detailed in paras No. 2(a), (b) and (c) of the plaint and their names were ordered to be corrected accordingly. The defendants were restrained from ousting the plaintiffs from the joint user of the suit land and to alienate the 1/3rd share of the plaintiffs in the suit land. Aggrieved against the judgment and decree of the Trial Court, the defendants preferred appeal, which was also dismissed by the lower Appellate Court after making the following observations:-- "13. The defendants were restrained from ousting the plaintiffs from the joint user of the suit land and to alienate the 1/3rd share of the plaintiffs in the suit land. Aggrieved against the judgment and decree of the Trial Court, the defendants preferred appeal, which was also dismissed by the lower Appellate Court after making the following observations:-- "13. Considering the arguments advanced by learned counsel for the parties and after going through the record placed on the file, this court is of the view that plaintiffs/respondents had to prove this fact that Sukhi was adopted by Khushali who had died issueless and as per share of Sukhi, the plaintiffs are entitled to 1/3rd share in the suit land and this fact has also been mentioned in para No. 2A, 2B and 2C of the plaint. For this, the plaintiffs/respondents had relied upon the written statement moved by the defendants/appellants which is Ex. PW6/1 and there is no denial regarding adoption of Sukhi by Khushali. It is settled proposition of law that the pleadings of former litigation are also an admission favourable for all purposes and for all times to come and in all other suits and this view was also supported by Bishawnath Rana v. Laxman Rana, AIR 1971 Orissa 267 and Dhankaur v. Major Singh 1994(3) R.R.R. 106: 1994(3) SLJ 2289. As per the revenue record, after adoption of Sukhi by Khushali, mutation No. 883 Ex. PX 1/H was sanctioned and same was sanctioned in jalsa-a-aam and no objection was ever raised by the defendants/appellants that Sukhi was not adopted son of Khushali at any time. The order dated 30.01.1925 was also presented before the revenue authority and then property was divided according to order and in mutation No. 374 Ex. P37 Sukhi was also recorded adopted son of Khushali and mutation No. 5774 Ex. P35 was entered in the name of Harparshad, Sukhi Ram, Pyare Lal and Ramji Lal after the death of Shiv Sahai. The name of Sukhi Ram was also deleted from the array of ownership right from their father as Sukhi Ram has been shown to have been adopted by Khushali and this document has certainly proved the adoption of Sukhi by Khushali and accordingly the lower court has rightly held that the plaintiffs are entitled to inherit the share in the suit land. 14. 14. Perusal of the case file shows that undisputedly Jas Ram was common ancestor of parties to the suit who had three sons namely Shiv Sahai, Partap and Khushali and Khushali was died issueless and after the death of Jas Ram, property was divided to his three sons to the extent of 1/3rd share each. Sukhi was adopted by Khushali and after the death of Khushali, property would be inherited by Sukhi and after his death, father of the plaintiffs Mam Chand and Gian Chand. The plaintiffs have clearly proved this fact that Sukhi went in adoption to Khushali and, therefore, he had inherited the share of Khushali in the suit property. The perusal of document Ex. PX 4/H for the year 1945-46 clearly shows that the property is situated in village Piala and name of Sukhi has been recorded as Sukhi Pissar Mutt Banna Khushali and these entries had also come in the jamabandi for the year 1954-55. These entries remained unchallenged at the instance of defendants/appellants. So adoption of Sukhi by Khushali is proved. The defendants have also not challenged the entries in Ex. P37 which is mutation No. 634 and Ex. P35 which is mutation No. 574 and this fact has also been mentioned in Sijra Nasab (pedigree table). As per Ex. P34 pedigree table, there is entry below the name of Sukhi that he is adopted by Khushali and his name has been challenged in the linage of Khushali. This view was also supported by Balwant Singh v. Daulat Singh, 1997(2) PLJ 132 and Gurmel Singh v. Prem Kumar, 1970 PLJ 173. A perusal of plaint Ex. PW3/1 shows that the pleadings of the case of the defendants were on different issues. In that case occupancy rights were claimed and perusal of jamabandi dated 17.1.2001 shows that matter was not decided with regard to shares in the suit property. Accordingly, in view of ocular as well as documentary evidence furnished by both the parties, it comes out that adoption of Sukhi by Khushali is duly proved and established and property was rightly inherited by the predecessors of Sukhi rather the plaintiffs/respondents have successfully established that they are entitled to the share inherited by Khushali due to the reason that Sukhi was their grandfather who was adopted son of Khushali." 7. Still aggrieved, the present appeal has been filed by the defendants in which learned counsel for the appellants has vehemently argued that the Courts below have erred in appreciating the evidence available on record while holding that Sukhi was duly adopted by Khushali. It is argued that mutation entry itself does not confer any title without there being any substance corroborating the fact of adoption of Sukhi by Khushali. He has also submitted that when mutation No. 883 (Ex. PX 1/H) was being sanctioned, objection was raised by the appellants about the factum of adoption and the Revenue Officer had observed that it may be challenged before the Civil Court. It is also submitted that the finding on adoption of Sukhi by Khushali is without any evidence muchless cogent, therefore, both the Courts below have committed a serious error in decreeing the suit of the plaintiffs. 8. Although learned counsel for the appellants has framed number of questions of law, but at the time of hearing, the basic issue that has been argued is about the adoption of Sukhi by Khushali and about its evidence. 9. I have heard learned counsel for the appellants and perused the available record. The mutation No. 883 (Ex. PX 1/H) categorically recites that if the defendants had any objection about recording of Sukhi as adopted son of Khushali, it could be challenged before the Court, but they did not challenge the same. In the mutation No. 882 (Ex. P33), it has been specifically mentioned by giving Sajra Nasab (pedigree table) of Shiv Sahai that Sukhi has been given in adoption to Khushali. Document Ex. P34 is the Sajra Nasab of the village in which again Sukhi has been shown as Pissar Mutbanna (adopted son) of Khushali. Similarly, in mutation No. 574 (Ex. P35), it has been recorded in the column of remarks that Sukhi has been taken in adoption by Khushali and, thus, his name has been deleted from the pedigree of Shiv Sahai. All this evidence has been duly considered by both the Courts below while decreeing the suit of the plaintiffs holding that Sukhi was duly adopted by Khushali and as such, the plaintiffs are entitled to his share. All this evidence has been duly considered by both the Courts below while decreeing the suit of the plaintiffs holding that Sukhi was duly adopted by Khushali and as such, the plaintiffs are entitled to his share. In view of the findings of fact recorded by both the Courts below and in the absence of any question of law much-less substantial, I do not find any merit in the present appeal and hence, the same is hereby dismissed.