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2015 DIGILAW 1168 (MP)

Indrapal Singh @ Raja Bhaiya v. Jandel Singh

2015-11-06

U.C.MAHESHWARI

body2015
ORDER 1. The appellants-defendants No.1 to 3 have filed this appeal, being aggrieved by the judgment and decree dated 27.2.2015, passed by the Additional District Judge to the Court of First Additional District Judge, Datia in Regular Civil Appeal No.21-A/2014, reversing the judgment and decree dated 14.7.2014, passed by the Third Civil Judge Class II to the Court of First Civil Judge Class II, Datia in Original Civil Suit No.21-A/2013, dismissing the suit of the respondent No.1 herein filed against the appellants and remaining respondents for declaration and perpetual injunction in respect of the land in dispute as adopted son of Late Laxman Singh Bundela on the strength of adoption and registered adoption deed dated 11.11.1986, was set aside and such suit of the respondent No.1 has been decreed. 2. The facts giving rise to this appeal, in short, are that the respondent No.1 herein filed the above-mentioned suit in the aforesaid trial Court, contending that 1/3rd part of the land bearing Survey Nos.1147/2, 1148, 1152, 1153/2 and 1154 situated at village Datia was remained under the right of Bhoomiswami and in possession of Laxman Singh. In the lifetime of Laxman Singh, he had taken the respondent No.1 in adoption and subsequent to such adoption, the adoption deed dated 11.11.1986 was executed between the natural mother of the respondent No.1 and Laxman Singh and the same was got registered with the Sub-Registrar. Subsequent to that, on 27.4.1993 such Laxman Singh was passed away and his last rites and rituals were performed by the respondent No.1. Subsequent to death of Laxman Singh, the respondent No.1 being his adopted son is cultivating the land of Laxman Singh under the right and title of Bhoomiswami. Such land was also mutated as Bhoomiswami in the name of respondent No.1 on .3.1.1995 on which Bhu Adhikar Rin-Pustika was also issued, but due to oversight or mistake of the concerning revenue official/Patwari, such endorsement was not made in the revenue record. Taking advantage of such situation the appellants, who were defendants No.1 to 3 before the trial Court, had got mutated one-half part of the land in their name vide order dated 13.2.2009 and remaining one-half part of the land was mutated in the name of respondents No.2 to 5 herein. At the time of such mutation, no intimation or opportunity of hearing was extended by the revenue authorities to the respondents. At the time of such mutation, no intimation or opportunity of hearing was extended by the revenue authorities to the respondents. After coming to know about such illegal mutation, respondent No.1 had approached to the Sub-Divisional Officer with the appeal. The same was sub judice at the time of filing the impugned suit. In further averments, it is stated that on the basis of illegal mutation, the partition proceeding was started by the appellants No.1 to 3 and pursuant to that, they were interested to sell the land, hence to protect the title, interest and possession, the respondent No.1 had filed the aforesaid suit for declaration and perpetual injunction. 3. In the written statement of appellant No.1 by denying the averments of the plaint, it is stated that respondent No.1 -Jandel Singh was neither taken in adoption by Laxman Singh nor he was kept by Laxman Singh with him as his son. In such premises, there was no occasion to execute the adoption deed between Laxman Singh and parents of respondent No.1 on 11.11.1986 as such, such adoption deed being forged and fabricated document, is prepared by the respondent No.1 and her mother with the assistance of witnesses just to snatch the land of Laxman Singh. In fact, the father of appellant No.1, namely, Suneju was cultivating such land of Laxman Singh in his lifetime and subsequent to death of Laxman Singh, it was remained in the family of appellant No.1 and the same is under his cultivation. Accordingly, respondent No.1 was never remained in possession of the land of Laxman Singh. 4. The respondents No.2 to 5 by filing their written statement, denied the averments of the plaint. In further pleading, it is stated that in the lifetime of Late Bhagwan Singh and his wife respondent No.5 herein Smt. Siddh Kunwar, with the consent of Late Laxman Singh, according to custom, had given their natural son respondent No.1 in adoption to Laxman Singh and subsequent to that, the alleged adoption deed was registered on 11.11.1986, but the appellants who were defendants No.1 to 3 before the trial Court by giving wrong information to the Revenue Officers, had got their names mutated on the part of the land of Late Laxman Singh. Against such order, the appeal was also sub judice in the Court of Sub-Divisional Officer and in such premises, the appellants herein are trying to take possession of the property from the respondent No.1 and also trying to sell the same. 5. It is apparent fact on record that on behalf of the appellants No.2 and 3, no written statement was filed before the trial Court. 6. In view of pleadings of the parties, as many as six issues were framed, on which the parties were directed to adduce their evidence, on which on behalf of the respondent No.1 in support of the plaint, as many as four witnesses, namely, Jandel Singh plaintiff- respondent No.1 himself (PW1), Smt. Siddh Kunwar his natural mother(PW2), Prakash(PW3), Indrapal Singh (PW4) were examined and while recording their depositions, the relevant documents were exhibited from Ex.P-1 to Ex.P-11. On the other hand, in spite extending the opportunity to adduce the evidence the appellants did not examine any of the witnesses, even they themselves did not enter in the witness box in support of their case stated in the written statement of appellant No.1. After recording the evidence, on appreciation the trial Court has dismissed the suit of the respondent No.1 on technical ground, holding that the requisite ingredients of adoption have not been proved. Being aggrieved by such judgment and decree of the trial Court, the respondent No.1 herein approached the subordinate appellate Court. On consideration, by allowing such appeal, the judgment and decree of the trial Court was set aside and the suit of respondent No.1 till extent of the share of Late Laxman Singh, was decreed in favour of respondent No.1, holding him to be an adopted son of Late Laxman Singh. Being dissatisfied with such judgment and decree, the appellants- defendants No.1 to 3 have come to this Court with this appeal under section 100 of Code of Civil Procedure. 7. Being dissatisfied with such judgment and decree, the appellants- defendants No.1 to 3 have come to this Court with this appeal under section 100 of Code of Civil Procedure. 7. Shri K.N. Gupta, learned senior counsel for the appellants, after taking me through the record of the trial Court along with the impugned judgments of both the Courts below, argued that the appellate Court has committed grave error in setting aside the judgment and decree of the trial Court, dismissing the impugned suit of the respondent No.1 and decreeing the same by holding him to be an adopted son of Laxman Singh on the strength of aforesaid deed and evidence adduced, while there was a variance between the pleadings and evidence in respect of adoption ceremony of the respondent No.1 by his natural parents in favour of Late Laxman Singh, as such giving and taking ceremony of the alleged adoption was not proved. In such premises, the adoption deed was not a valid document. So, on that basis, there was no occasion to interfere in the judgment and decree of the trial Court for reversing the same. In support of his contention, he has also placed his reliance on the basic provision of section 10(4) of Hindu Adoptions and Maintenance Act, 1956 [in short “the Act’’]. In continuation, he further said that according to such provision, the person, who is adopted, should be below fifteen years of age and undisputedly, the respondent No.1 at the time of execution of adoption deed was more than fifteen years of age. He further said that in view of evidence available and the pleadings, the adoption deed was apparently a suspicious document. In spite relying on the same, the suit of the respondent No.1 was decreed by the appellate Court under the wrong premises. He further said that khasra entry in which the names of the appellants were rightly mutated. So, in such premises, the decree of the appellate Court is not sustainable. He further said that in view of mandatory provision of section 16 of the Act, in the lack of consent of natural father, the impugned adoption was not valid, but such aspect was not considered. So, in such premises, the decree of the appellate Court is not sustainable. He further said that in view of mandatory provision of section 16 of the Act, in the lack of consent of natural father, the impugned adoption was not valid, but such aspect was not considered. By placing his reliance on the decision of Division Bench of this Court in the matter of Madan Lal v. Vinod Kumar and others, reported in ILR 2008 (MP) 868, and the decision in the matter of Kiran Singh and others v. Ramji and others, reported in 2007(2) MPJR 314, along with the decision of apex Court in the matter of Ghisalal v. Dhapubai, reported in 2011(1) JLJ 368 (SC)= (2011)2 SCC 298 and the decision in the matter of Madhusudan Das v. Smt. Narayanibai (Deceased) by LRs and others, reported in 1983 JLJ 131 (SC)= (1983)1 SCC 35 , prayed to admit this appeal by framing the substantial questions of law as proposed in the appeal memo. 8. Having heard the learned senior counsel at length, keeping in view the arguments advanced, I have carefully gone through the record of the trial Court as well as the case-laws cited on behalf of the appellants. It is apparent from the record of the trial Court that in spite extending the opportunity, except the appellant No.1, the appellants No.2 and 3 did not file their written statement. So, in such premises, they have not placed their case before the trial Court and in the lack of pleadings on the record nothing could have been considered by the trial Court or the appellate Court at their instance. The respondent No.1 pleaded in his plaint that before eight years from the date of execution of the registered adoption deed, the adoption ceremony of giving the respondent No.1 in adoption to Laxman Singh was carried out by Bhagwan Singh, natural father of the respondent No.1 and his natural mother Smt. Siddh Kunwar respondent No.5. Although such pleadings of the plaint have been denied and disputed in the written statement of the appellant No.1 but in support of such contention, the appellant No.1 or other appellants or their witnesses did not enter in the witness box to prove such pleadings challenging the adoption and adoption deed of respondent No.1. Although such pleadings of the plaint have been denied and disputed in the written statement of the appellant No.1 but in support of such contention, the appellant No.1 or other appellants or their witnesses did not enter in the witness box to prove such pleadings challenging the adoption and adoption deed of respondent No.1. So, firstly in view of the settled proposition that unless the evidence is adduced on record in support of the pleadings, mere on the basis of pleadings no inference could be drawn in favour of the party who has taken the defence in the pleadings and not proved the same. It is also apparent from the record of the Courts below that the evidence adduced by respondent No.1 in support of his pleadings of adoption and adoption deed, has not been rebutted on behalf of the appellants. In such premises, the trial Court as well as the appellate Court were bound to consider the matter in the light of the pleadings and unrebutted evidence of the respondent No.1 only. 9. It is settled proposition of law as laid down by this Court in the matter of Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat, reported in 1970 JLJ 207 = AIR 1970 MP 225 , holding that if the party who know the facts pleaded, did not enter in the witness box to prove the same and to propose himself for cross-examination by the other side, then such circumstance is sufficient to draw an inference against such person to hold that such party has failed to prove his case. In the aforesaid cited-case, it was held as under: “When a material fact is within the knowledge of a party and he does not go into the witness box without any plausible reason, an adverse inference must be drawn against him. A presumption must be drawn against a party who having knowledge of the fact in dispute does not go into the witness box particularly when a prima facie case has been made out against him.” 10. A presumption must be drawn against a party who having knowledge of the fact in dispute does not go into the witness box particularly when a prima facie case has been made out against him.” 10. Mere perusal of depositions of respondent No.1- Jandel Singh (PW1) and his natural mother Smt. Siddh Kunwar (PW2) along with supported the depositions of Prakash (PW3) and Indrapal Singh (PW4), it is apparent that near about eight years before the date of execution of aforesaid adoption deed, the ceremony of adoption had taken place in which the natural father of respondent No.1 Bhagwan Singh and mother respondent No.5 herein, with the consent of Laxman Singh in his lifetime had given the respondent No.1 in adoption to Laxman Singh in accordance with custom and from evidence, it has also been established that at the time of adoption, the respondent No.1 was below the age of fifteen years and considering such aspect the appellate Court by setting aside the judgment and decree of the trial Court, decreed the suit of the respondent No.1. 11. I have not found any perversity or error in appreciation of such evidence by the appellate Court holding that the adoption of respondent No.1 by Laxman Singh in accordance with the custom of the community from his natural parents has been duly proved with ceremony. 12. Apart from the aforesaid, it is also apparent from the record that after recording chief of all the witnesses of respondent No.1 in spite extending the opportunity to appellants to cross-examine them, none of the witnesses was cross-examined on any facts stated by them in their chief, by which they have proved the ceremony of adoption as per custom of the community and also registered adoption deed. As per settled proposition, cross-examination of the witness is a material implement in the hands of other side, by which the party can put his case in his cross-examination to the witness of other side as pleaded in the pleadings. In such premises, the evidence adduced by respondent No.1 was remained unrebutted on record and on that basis also, the impugned judgment do not require any interference. My aforesaid approach is based on the decision of Calcutta High Court in the matter of AEG Carapiet v. A.Y. Derderian, reported in AIR 1961 Calcutta 359, in which it was held as under: “ The law is clear on the subject. My aforesaid approach is based on the decision of Calcutta High Court in the matter of AEG Carapiet v. A.Y. Derderian, reported in AIR 1961 Calcutta 359, in which it was held as under: “ The law is clear on the subject. Wherever the opponent has declined to avail himself of the opportunity to put his essential and material case in cross-examination, it must follow that he believed that the testimony given could not be disputed at all. It is wrong to think that this is merely a technical rule of evidence. It is a rule of essential justice. It serves to prevent surprise at trial and miscarriage of justice, because it gives notice to the other side of the actual case that is going to be made when the turn of the party on whose behalf the cross-examination is being made comes to give and lead evidence by producing witnesses. It has been stated on high authority of the House of Lords that this much a counsel is bound to do when cross-examining that he must put to each of his opponent’s witnesses in turn, so much of his own case as concerns that particular witness or in which that witness had any share. If he asks no question with regard to this, then he must be taken to accept the plaintiff’s account in its entirety. Such failure leads to miscarriage of justice, first by springing surprise upon the party when he has finished the evidence of his witnesses and when he has no further chance to meet the new case made which was never put and secondly, because such subsequent testimony has no chance of being tested and corroborated.” 13. In view of the aforesaid uncross-examined and unrebutted evidence of the respondent No.1, I am of the considered view that the trial Court had committed error in dismissing the suit of the respondent No.1 while the appellate Court on appreciation of such evidence and taking into consideration sections 10 and 16 of the Act, has rightly set aside the judgment of the trial Court and decreed the suit of respondent No.1 by holding him to be an adopted son of Laxman Singh and declared the share of late Laxman Singh of the disputed property in his favour with perpetual injunction. 14. 14. In the aforesaid premises, I have not found any perversity, illegality, irregularity or anything against the propriety of law in the judgment and decree of the appellate Court giving rise to any question of law, rather than the substantial question of law for admission. So, in such premises, this appeal deserves to be dismissed at the initial state of motion hearing. 15. So far as the case-laws cited on behalf of the appellants are concerned, after going through the same, I am of the view that in the available circumstances, in the light of unrebutted and uncrossed evidence of the respondent No.1- plaintiff on record and the appellants No.2 and 3 did not file their written statement, cited-cases being distinguishable on the facts of the case at hand, are not helping to the appellants. So far as the principle laid down in those cases is concerned, this Court did not have any dispute but the same are not applicable to the case at hand. 16. In view of the aforesaid discussion, this appeal in the lack of any situation giving rise to the substantial question of law, deserves to be and is hereby dismissed. There shall be no order as to costs.