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2015 DIGILAW 516 (HP)

Tripta Devi v. Krishan Chand (died)

2015-05-13

P.S.RANA

body2015
P.S. Rana, Judge. 1. Order of limited remand under Section 107 of CPC Regular Second Appeal is filed under Section 100 of the Code of Civil Procedure 1908 by the appellants against the judgment and decree dated 31.3.2003 passed by learned Additional District Judge Solan in Civil Appeal No. 63-NL/13 of 1996 titled Tripta Devi and others vs. Krishan Chand and others. 2. Brief facts of the case as pleaded are that Sita Ram and others filed a suit for declaration with consequential relief of injunction pleaded therein that Majlashi predecessorin- interest of parties had four sons namely Kali Dass, Shivia, Mansha Ram and Manu. It is pleaded that Manu had three sons namely Lajjya Ram @ Lajjya, Jhaiyan and Basu. It is pleaded that Mansha Ram had no issue and he was survived by his widow namely Phullman. It is pleaded that Shivia had two sons namely Ganu and Ganeshu. It is further pleaded that Kali Dass and his brothers were Hindu Brahmins and Kali Dass had adopted Basu as his son and Basu transplanted in the family of Kali Dass. It is pleaded that Phullman Devi widow of Mansha Ram was owner of land measuring 26 bighas 16 biswas and she died intestate leaving behind no legal heirs and after her death dispute arose between Lajjya Ram @ Lajjya, Jhaiyan and Basu on one hand and Ganu and Ganeshu sons of Shivia on the other hand. It is pleaded that thereafter Lajjya Ram @ Lajjya and others filed civil suit No. 41 titled Lajjya and others vs. Ganeshu and others in the Court of Civil Judge and civil suit No. 41 was decreed whereby 1/3rd share of estate of Phullman was mutated as per decree of Civil Court. It is pleaded that Basu was adopted by Kali Dass and he had no right title or interest in the estate of natural father Mr. Manu because Basu stood transplanted in the family of Kali Dass. It is pleaded that name of Basu was illegally recorded in the revenue record as legal heir of Manu. It is pleaded that Basu always represented himself to be adopted son of Kali Dass. It is pleaded that only Lajjya Ram @ Lajjya and Jhaiyan were legal heirs of estate of deceased Manu. It is pleaded that name of Basu was illegally recorded in the revenue record as legal heir of Manu. It is pleaded that Basu always represented himself to be adopted son of Kali Dass. It is pleaded that only Lajjya Ram @ Lajjya and Jhaiyan were legal heirs of estate of deceased Manu. It is pleaded that in case Lajjya Ram @ Lajjya and Jhaiyan predecessor-in-interest of plaintiffs are not held or proved to be only legal heirs of Manu and if Basu is not held to be adopted son of Kali Dass even then they have acquired the right of adverse possession qua share of Basu openly, continuously and uninterruptedly since 20.9.1979 BK. It is pleaded that consolidation proceedings started in the village and deceased defendant illegally claimed 1/3rd share in suit land on the basis of wrong and illegal revenue entries. It is pleaded that deceased defendant could not claim 1/3rd share in the suit land. It is pleaded that question of title was raised before consolidation officer for not effecting the partition of suit land on the basis of illegal revenue entries in revenue record. It is pleaded that plaintiff also requested the deceased defendant to admit the claim of plaintiffs but deceased defendant refused to admit the claim of plaintiff. Prayer for decree the suit as mentioned in relief clause of plaint sought. 3. Per contra written statement filed on behalf of deceased defendant pleaded therein that suit is barred by time and plaintiffs are estopped to file the present suit due to their act conduct and acquiescence. It is pleaded that suit is barred by res-judicata and suit of plaintiffs is not maintainable and plaintiffs have no locus standi and cause of action to file the present suit. It is admitted that Manu had three sons namely Lajjya Ram @ Lajja, Jhaiyan and Basu. It is also admitted that Mansha Ram had no son and he was survived by his widow Phullma and Shivia had two sons namely Ganu and Ganeshu. It is also admitted that Kali Dass and his brothers are Brahmins. It is denied that Kali Dass had adopted Basu as his son. It is pleaded that transplantation of Basu in the family of Kali Dass does not arise. It is pleaded that Manu was father of Basu. It is also admitted that Kali Dass and his brothers are Brahmins. It is denied that Kali Dass had adopted Basu as his son. It is pleaded that transplantation of Basu in the family of Kali Dass does not arise. It is pleaded that Manu was father of Basu. It is pleaded that from Basu Swanu was born and from Swanu deceased defendant was born. It is pleaded that deceased defendant has inherited the suit property to the extent of his share in accordance with law. It is pleaded that civil suit No. 196 was decided on dated 7.10.1989 BK filed by predecessors-in-interest of deceased defendant against Puran, Lajjaya Ram, and Sita Ram etc and same was decreed in favour of Swanu and thereafter share of Kali Dass went to Swanu. It is pleaded that Kali Dass also executed gift deed qua his share in the name of predecessorsin interest of deceased defendant. It is pleaded that Basu was not adopted by Kali Dass at any point of time. It is pleaded that Basu had legally inherited the share of Manu along with Lajjya Ram and Jhaiyan. It is pleaded that suit property was devolved upon Swanu Ram and from Swanu it was devolved upon Jagdish deceased defendant. It is pleaded that after death of Manu his all three sons namely Lajjya Ram, Jhaiyan and Basu have inherited the suit property to the extent of 1/3rd share each and further pleaded that plaintiffs did not acquire the title in suit property by way of right of adverse possession. It is pleaded that plaintiffs could not challenge the entries of 80 years old revenue record and further pleaded that contesting deceased defendant was legally entitled to file partition proceedings before consolidation officer and contesting deceased defendant was also legally entitled to get his share separated from the plaintiffs. Prayer for dismissal of suit sought. 4. Plaintiffs also filed replication and re-asserted the allegations mentioned in plaint. As per the pleadings of parties learned trial Court framed following issues on dated 25.8.1992:- 1. Whether Kali Dass formerly adopted one Basu as his son as alleged if so its effect? OPP 2. Whether Shri Manu the predecessor-in-interest of plaintiffs was owner in possession of the land in lieu of which suit land was earmarked and carved out in consequence of first settlement as alleged? OPP 3. Whether Kali Dass formerly adopted one Basu as his son as alleged if so its effect? OPP 2. Whether Shri Manu the predecessor-in-interest of plaintiffs was owner in possession of the land in lieu of which suit land was earmarked and carved out in consequence of first settlement as alleged? OPP 3. Whether there were any decree dated 26.9.1989 B.K. passed in civil suit No. 41 titled Lajja Ram and others vs. Ganeshu and others whereby 1/3rd share of estate of Phullmu (26bighas and 16 biswas) was mutated having been inherited by aforesaid Basu, as alleged? …..OPP 4. Whether entries in the revenue record qua the suit land previously showing Basu and thereafter the successor Sawanu and presently Jagdish were and are null and void as alleged in para No. 7 of the plaint? OPP 5. Whether Lajja Ram and Jhaiyan the predecessors of plaintiffs being the only heirs of Manu exclusively entered into possession of the whole estate of Manu as alleged? OPP 6. In case issue No. 5 is not proved in affirmative whether the plaintiffs have become owners in possession of 1/3rd share of the suit land by way of adverse possession through their predecessors as alleged? OPP 7. Whether suit is barred by limitation as alleged ?OPD 8. Whether plaintiffs are estopped to file the suit for their act and conduct as alleged? OPD 9. Whether suit is barred by res judicata, as alleged? OPD 10.Whether suit is not maintainable as alleged? OPD 11 Whether plaintiffs have no locus standi to file the suit, as alleged? OPD 12 Whether plaintiffs have no cause of action, as alleged? OPD 13 Whether plaintiffs have not affixed the proper court fee, as alleged? OPD 14 Relief. 5. Learned trial Court decided issue Nos. 1 to 5 in favour of the plaintiffs. Learned trial Court held issue No. 6 as redundant and learned trial Court decided issue Nos. 7 to 13 against contesting deceased defendant. Learned trial Court decreed the suit and also granted consequential relief of injunction as prayed for in favour of plaintiffs and against contesting deceased defendant Jagdish. 6. Feeling aggrieved against the judgment and decree passed by learned trial Court Tripta Devi and others (Legal heirs of deceased contesting defendant) filed Civil Appeal No. 63-NL/13 of 1996 titled Tripata Devi and others vs. Krishan Chand and others. 6. Feeling aggrieved against the judgment and decree passed by learned trial Court Tripta Devi and others (Legal heirs of deceased contesting defendant) filed Civil Appeal No. 63-NL/13 of 1996 titled Tripata Devi and others vs. Krishan Chand and others. Learned Additional District Judge on dated 31.3.2003 dismissed the appeal filed by appellants. 7. Thereafter feeling aggrieved against the judgment and decree passed by learned first Appellate Court in Civil Appeal No. 63-NL-13 of 1996 Tripata Devi and others (Legal representatives of deceased contesting defendant) filed RSA No. 235 of 2003 which was admitted by Hon’ble High Court on dated 22.8.2003 on the following substantial question of law:- 1. Whether learned lower Appellate Court is right in not recording any findings with respect to the question of abatement of a suit as a whole especially when one of the plaintiff had died during the pendency of the appeal before the learned lower Appellate Court? Court take judicial notice of pleadings and oral and documentary evidence placed on record and framed additional substantial question of law under proviso of Section 100 of Code of Civil Procedure 1908 because Court is satisfied that RSA involves additional substantial question of law:- (2) Whether adopted son could inherit coparcenary property of natural father as per Section 12(b) of Hindu Adoption and Maintenance Act 1956? 8. Court heard learned Advocate appearing on behalf of parties and also perused the entire record carefully. 9. Parties examined following oral witnesses in supported of their case:- Sr. No. Name of witness PW1 Bansi Ram PW2 Madan Lal PW3 Chet Ram PW4 Chajju Ram PW5 Devi Ram PW6 Dwarka PW7 Sunder Singh PW8 Chhotu Ram DW1 Jagdish 10. Oral evidence adduced by the parties:- 10.1 PW1 Bansi Ram has stated that Moti was his father and he died 54 years ago. He has stated that he has seen the suit property and further stated that Sita Ram had cultivated the suit land. He has stated that Sita Ram etc. are in settled possession of suit property and deceased defendant did not possess the suit land at any point of time. He has stated that his village is situated at a distance of ½ K.m. from suit property. He has admitted that Sita Ram and deceased Jagdish belonged to same family. He has stated that Sita Ram etc. are in settled possession of suit property and deceased defendant did not possess the suit land at any point of time. He has stated that his village is situated at a distance of ½ K.m. from suit property. He has admitted that Sita Ram and deceased Jagdish belonged to same family. He has stated that Sita Ram is in possession of his own land and deceased Jagdish was in possession of his own land. He has denied suggestion that he has deposed falsely at the instance of plaintiffs. 10.2 PW2 Madan Lal has stated that Fakiriya was his great grandfather who had died and he has further stated that his father had also died. He has stated that he has seen the suit property and same is in possession of Sita Ram and further stated that deceased Jagdish did not remain in possession of suit property. He has admitted that parties are Hindu by religion and belong to same family. He has stated that he does not know whether partition took place inter se the parties or not. He has admitted that Sita Ram and deceased Jagdish remained in settled possession of property as per their shares. 10.3 PW3 Chet Ram has stated that his maternal grandfather Ganga Ram had died who was resident of Dhar village. 10.4 PW4 Chajju record keeper, record room Nalagarh has tendered the record. 10.5 PW5 Devi Lal has stated that he had seen the suit property. He has stated that Sita Ram is in settled possession of suit land and deceased defendant Jagdish did not remain in possession of suit land. He has stated that Girdawari is conducted which is verified by Tehsildar and he has further stated that no objection was raised relating to preparation of jamabandis and Girdawari. He has stated that he does not know that deceased Jagdish remained co-owner of suit property. 10.6 PW6 Dwarka has stated that he had seen the suit property and further stated that Majlashi was owner of suit property. He has stated that Majlashi was Hindu by religion and was having four sons namely Kali Dass, Shivia, Mansha Ram and Manu. He has stated that Manu had three sons namely Lajjya Ram, Jhaiyan and Basu. 10.6 PW6 Dwarka has stated that he had seen the suit property and further stated that Majlashi was owner of suit property. He has stated that Majlashi was Hindu by religion and was having four sons namely Kali Dass, Shivia, Mansha Ram and Manu. He has stated that Manu had three sons namely Lajjya Ram, Jhaiyan and Basu. He has stated that Basu was adopted by Kali Dass and further stated that factum of adoption was informed to him by Ganu and Ganeshu. He has stated that after adoption of Basu by Kali Dass the title of Basu extinguished in the share of his natural father Manu. He has stated that Phulma was widow of Mansha Ram. He has stated that civil suit relating to share of Pulma was filed. He has stated that share of Kali Dass was inherited by Basu on the basis of adoption. He has stated that share of Manu remained in possession of plaintiffs and further stated that deceased defendant Jagdish did not inherit rights over the share of Manu. He has stated that he does not know that how the property of Manu was devolved after his death. He has stated that no objection relating to preparation of revenue record was raised. He has stated that Basu, Lajjya and Jhaiyan used to live jointly earlier and thereafter Basu separated himself. He has stated that Kali Dass had died prior to his birth. He has stated that he could not state the date and month when Basu was adopted by Kali Dass. He has admitted that Khasra Girdawari and jamabandis are prepared after verification by Tehsildar. He has stated that no objection was raised relating to preparation of revenue record. 10.7 PW7 Sunder Singh has stated that he had translated the documents in Hindu language which are Ext.PW7/A-1, Ext.PW7/B-1, Ext.PW7/C-1, Ext.PW7/D-1, Ext.PW7/E-1, Ext.PW7/F-1, Ext.PW7/G-1, Ext.PW7/H-1, Ext.PW7/J-1, Ext.PW7/K-1, Ext.PW7/L-1 & Ext.PW7/M-1 correctly. He has stated that he has translated the documents as per direction of Krishan. He has stated that documents Ext.PW7/A-1 to Ext.PW7/M-1 have been prepared from revenue record. 10.8 PW8 Chhotu Ram has stated that he is general attorney of Sita Ram copy of which is Ext.PW8/A. He has stated that Majlashi was ancestor of the parties. He has stated that parties are Hindu Brahmins by religion. He has stated that Majlashi had four sons namely Kali Dass, Shivia, Mansha Ram and Manu. 10.8 PW8 Chhotu Ram has stated that he is general attorney of Sita Ram copy of which is Ext.PW8/A. He has stated that Majlashi was ancestor of the parties. He has stated that parties are Hindu Brahmins by religion. He has stated that Majlashi had four sons namely Kali Dass, Shivia, Mansha Ram and Manu. He has stated that Mansha Ram had no issue and Phullma was his widow. He has stated that Manu had three sons namely Lajjya, Jhaiyan and Basu and Shivia had two sons namely Ganu and Ganeshu and further stated that Kali Dass was issueless and he adopted Basu as his adopted son. He has stated that Manu and his wife had given Basu in adoption to Kali Dass according to religious customs. He has stated that thereafter Basu became the adopted son of Kali Dass. He has stated that after the death of Phullma civil litigation started which was decided on dated 29.9.1989. He has stated that contesting deceased defendant Jagdish was wrongly recorded in revenue record and he did not remain in possession of suit property. He has stated that entries of contesting deceased defendant Jagdish to the extent of 1/3rd share was illegally recorded in revenue record. He has stated that Jagdish threatened to dispossess the plaintiffs and thereafter plaintiffs filed the present suit. He has stated that his father remained sick for a long time. He has stated that after death of Majlashi his property was devolved between Manu, Shivia, Mansha Ram and Kali Dass. He has stated that he had not seen Manu, Shivia and Kali Dass. He has stated that initially they used to reside jointly and thereafter they separated. He has stated that he does not know when they separated. He has stated that he does not know when Manu had died. He has stated that property of Manu was devolved upon Lajjya and Jhaiyan. He has stated that Lajjya and Jhaiyan did not file any suit against Basu. He has stated that after death of Manu his property was devolved upon his legal heirs. He has stated that property of Shivia was devolved upon Ganu and Ganeshu and property of Mansha Ram was devolved upon Phullma. He has stated that he does not know when Kali Dass died. He has stated that no document of adoption of Basu was prepared. He has stated that property of Shivia was devolved upon Ganu and Ganeshu and property of Mansha Ram was devolved upon Phullma. He has stated that he does not know when Kali Dass died. He has stated that no document of adoption of Basu was prepared. He has stated that property of Kali Dass was devolved upon Basu. He has admitted that Lajjya, Jhaiyan, Ganu, Ganeshu, Basu have inherited the ancestral property. He has stated that no objection was raised when Girdawari was prepared. He has stated that suit property has not been partitioned and remained joint property. 10.9 DW1 Jagdish has stated that Manu was son of Majlashi. He has stated that Manu had three sons namely Lajjya, Jhaiyan and Basu. He has stated that property of Manu was devolved upon his three sons namely Lajjya, Jhaiyan and Basu. He has stated that thereafter share of Basu was devolved upon Sawanu and thereafter share of Sawanu was devolved upon deceased defendant Jagdish. He has stated that Sita Ram and Asha Ram were born from Jhaiyan. He has stated that Basu had inherited 1/3rd share of Manu. He has stated that he is in settled possession of suit property as cosharer. He has stated that share of Kali Dass was devolved upon Basu on the basis of gift deed. He has stated that Ganu and Ganeshu have filed a suit against Kali Dass and Basu had died during pendency of civil suit. He has stated that Basu was his great grandfather. He has stated that parties are Hindu Brahmins by religion and Lajjya and Jhaiyan and Basu are three sons of Manu. He has stated that he does not know whether Phullma was widow of Mansha Ram. He has stated that he does not know that Ganu and Ganeshu were sons of Shivia. He has denied suggestion that Basu was adopted by Kali Dass according to religious customs. He has denied suggestion that Basu was adopted son of Kali Dass. He has denied suggestion that Basu had inherited the property of Kali Dass as adoptee son. He has stated that property of Kali Dass was inherited by Basu on the basis of gift deed. He has denied suggestion that Basu was not legally entitled to inherit share of Manu because he was transplanted in the family of Kali Dass as adoptee son. He has stated that property of Kali Dass was inherited by Basu on the basis of gift deed. He has denied suggestion that Basu was not legally entitled to inherit share of Manu because he was transplanted in the family of Kali Dass as adoptee son. He has denied suggestion that defendants are not in settled possession of suit property and further denied suggestion that wrong revenue record was prepared. Findings on Point Nos. 1 and 2 of Substantial questions of law 11. Submission of learned Advocate appearing on behalf of the appellants that co-plaintiff No. 8 Brahma Nand son of Phipharu son of Lajjya Ram died during the pendency of appeal and his legal representatives were not brought on record and suit filed by plaintiffs be abated as a whole due to death of Brahma Nand co-plaintiff No. 8 is rejected being devoid of any force for the reasons hereinafter mentioned. It is proved on record that on dated 13.12.1996 Tripta Devi filed application under Order 22 Rule 4 read with Rule 9 of CPC for dismissing the suit on the ground of abatement. Tripta Devi pleaded in application that Process Server reported that plaintiff Brahma Nand co-plaintiff No. 8 was dead at the time of passing the decree and during the continuation of trial the other co-plaintiffs did not file any application under Order 22 Rule 3 CPC to implead his LRs and proceedings in the trial Court continued against a dead person and decree was passed by learned trial Court against a dead person which is nullity in law. It is also proved on record that thereafter reply was filed on behalf of contesting plaintiffs and it is admitted that Brahma Nand co-plaintiff died. It is pleaded that Brahma Nand had joined the company of saint on account of religious feelings and his whereabouts were not known to contesting plaintiffs. It is pleaded that share of Brahma Nand co-plaintiff No. 8 was severable and it is denied that contesting plaintiffs have no independent and distinct cause of action to maintain and continue the suit. It is also proved on record that thereafter learned first Appellate Court on dated 16.10.1997 framed following issues:- 1. Whether suit has abated due to death of Shri Brahma Nand plaintiff No. 8 as alleged? …OPA 2. Whether Shri Brahma Nand had become Saint renounced the world as alleged, if so its effect? It is also proved on record that thereafter learned first Appellate Court on dated 16.10.1997 framed following issues:- 1. Whether suit has abated due to death of Shri Brahma Nand plaintiff No. 8 as alleged? …OPA 2. Whether Shri Brahma Nand had become Saint renounced the world as alleged, if so its effect? OPA….Corrected as Non-OPA(Corrected by High Court suo motu being clerical mistake in nature). 3. Relief. It is also proved on record that thereafter first Appellate Court recorded the statement of Ramesh Kumar and Chhotu Ram. It is also proved on record that on dated 19.5.2000 Shri Kashmiri Lal learned Advocate appeared on behalf of respondents/plaintiffs had stated in Court that he relinquished the claim qua share of deceased Brahma Nand and he has also given the statement that qua share of Brahma Nand suit be abated. It is also proved on record that thereafter Shri H.R. Sharma Advocate who appeared on behalf of the appellants/defendants has also given statement on dated 19.5.2000 that he heard statement of Shri Kashmiri Lal Advocate and same is correct and according to statement given by Shri Kashmiri Lal Advocate application filed under Order 22 Rule 4 be decided. It is also proved on record that thereafter learned first Appellate Court passed a consent order on dated 19.5.2000 which is quoted in toto:- “19.5.2000 Present:- Sh. H.R. Sharma, Ld. Adv. for appellants. Sh. Kashmiri Lal, Ld. Adv. for respondents. At this stage, learned counsel for respondents-plaintiffs stated at Bar that he abandoned the claim of share of plaintiff Brahma Nand. Learned counsel for appellants has admitted the statement of Sh. Kashmiri Lal, Advocate. Separate statements of learned counsel for both the parties to this effect recorded which are placed on record. In view of above statements of learned counsel for the parties, it is ordered that the suit qua the share of plaintiff Brahma Nand son of Sh. Phipharu is abated. Argument in the main appeal heard today. Now it be listed for final orders at Solan on 30.5.2000. Sd/- Addl.District Judge, Solan Camp at Nalagarh.” It is proved on record that learned Appellate Court in view of statements of learned Advocates abated the suit qua share of Brahma Nand only. Court has also perused latest jamabandi for the year 1992-93 Ext.P8 placed on record qua the suit property. Sd/- Addl.District Judge, Solan Camp at Nalagarh.” It is proved on record that learned Appellate Court in view of statements of learned Advocates abated the suit qua share of Brahma Nand only. Court has also perused latest jamabandi for the year 1992-93 Ext.P8 placed on record qua the suit property. In jamabandi for the year 1992-93 it has been specifically mentioned that Brahma Nand was recorded as owner of 1/3rd share, Sita Ram was recorded as owner of 1/3rd share and Jagdish was recorded as owner of 1/3rd share in the suit property. It is proved on record that shares of Brahma Nand, Sita Ram and Jagdish have been specifically defined. In view of the fact that shares of Brahma Nand, Sita Ram& Jagdish have been separately mentioned as 1/3rd each and in view of the fact that cause of action relating to Brahma Nand is severable hence it is held that learned first Appellate Court has rightly abated the suit qua share of Brahma Nand only as per statements of learned Advocates. It is well settled law that abatement depends upon facts and circumstances of an individual case. It is well settled law that where one of the parties has an independent and distinct right of his own not interdependent upon one or other then appeal would be abated only qua the deceased. (See (2010)11 SCC 476 titled Budh Ram and others vs. Bansi and others) Hence in present case Brahma Nand, Sita Ram and Jagdish have independent and distinct rights of their own in suit property and right of deceased Brahma Nand was not interdependent upon Sita Ram and Jagdish. It is held that Brahma Nand was having independent ownership right of 1/3rd share in the suit property. 12. Another submission of learned Advocate appearing on behalf of the appellants that present suit is barred by limitation because plaintiffs have challenged the revenue record which is in existence for long period is also rejected being devoid of any force for the reasons hereinafter mentioned. It is proved on record that plaintiffs have filed the present suit when deceased defendant threatened to dispossess the plaintiff from suit land during consolidation operation and when deceased defendant filed application for partition of suit land before consolidation authorities. It is proved on record that plaintiffs have filed the present suit when deceased defendant threatened to dispossess the plaintiff from suit land during consolidation operation and when deceased defendant filed application for partition of suit land before consolidation authorities. It is held that cause of action accrued to the plaintiffs to file the present suit when deceased defendant moved the consolidation authorities for partition of suit land. It is held that cause of action accrued to plaintiffs to file the present suit when deceased defendant namely Jagdish filed partition proceedings before the consolidation authorities and when deceased defendant threatened to dispossess the plaintiffs from suit land. It is well settled law that limitation starts from date of cause of action. (See (2010)2 SCC 194 titled Daya Singh and another vs. Gurdev Singh (dead) by LRs and others) 13. Another submission of learned Advocate appearing on behalf of the appellants that in para No. 5 of written statement it was pleaded by deceased defendant in positive manner that suit property was inherited by Lajjya Ram, Jhaiyan and Basu from Manu and Manu had inherited the property from Majlashi and suit land is coparcenary property and learned Advocate appearing on behalf of appellants further submitted that in coparcenary property person has right by birth and even after adoption the adoptee son could not be divested his interest in coparcenary property of natural father as per Section 12 of Hindu Adoption and Maintenance Act 1956 is accepted for the reasons hereinafter mentioned. It is well settled law that on adoption adoptee gets transplanted into adopting family with the same right as that of natural born son. It is well settled law that after adoption adoptee is deemed to be child of adoptive father and mother for all purposes with effect from the date of adoption. It is also well settled law that adopted son continued to have his share in coparcenary property of his natural father and it is well settled law that on adoption the adopted son is not divested from his share in the coparcenary property of his natural father. It is well settled law that share of adopted son in coparcenary property continued to vest in favour of the adopted son even after adoption. It is well settled law that share of adopted son in coparcenary property continued to vest in favour of the adopted son even after adoption. As per Section 12 of Hindu Adoption and Maintenance Act 1956 any property which vested in the adopted child before adoption shall continue to vest in such person subject to obligation if any attaching to the ownership of such property including the obligation to maintain relatives in the family of his birth. It is well settled law that person acquired share in the coparcenary property by birth in the natural family. Hence it is held that share of adopted son in coparcenary property could not be divested after adoption in view of Section 12 of Hindu Adoption and Maintenance Act 1956. Section 12 of Hindu Adoption and Maintenance Act 1956 is quoted in toto:- “12.Effects of adoption-An adopted child shall be deemd to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family: Provided that- (a) the child cannot marry any person whom he or she could not have married if he or she had continued in the family of his or her birth; (b) any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth; (c) the adopted child shall not divest any person of any estate which vested in him or her before the adoption.” 14. Submission of learned Advocate appearing on behalf of the respondents that learned trial Court and learned first Appellate Court have held that Basu was adopted by Kali Dass and his relations in natural family were severed and Basu was not legally entitled to inherit the property from Manu because he was already adopted by Kali Dass and in view of concurrent findings of adoption by learned trial Court appeal filed by appellants be dismissed is rejected being devoid of any force for the reasons hereinafter mentioned. It is held that learned trial Court and learned first Appellate Court have not decided the material issue involved inter se the parties whether Basu was legally entitled to inherit the coparcenary property owned by Manu. Even learned trial Court did not frame any issue whether suit property was coparcenary property between Lajjya Ram, Jhaiyan and Basu despite specific pleading in written statement that suit property was initially owned by Majlashi and thereafter same was inherited by Kali Dass, Shivia, Mansha Ram and and Manu and thereafter share of Manu was inherited by Lajjya Ram, Jhaiyan and Basu in equal shares. It is well settled law that under Order XIV Rule 5 of the Code of Civil Procedure, 1908 Court can at any time before passing of decree could amend the issue or frame the additional issue as it deems fit for determining the matter in controversy between the parties. It is held that framing of additional issue is necessary for determining the controversy between the parties as per provisions of Order XIV Rule 5 of Code of Civil Procedure 1908. In view of above stated facts following additional issue No. 13A is framed by High Court in order to decide the case properly and effectively and in order to impart substantial justice inter se the parties and in the ends of justice. Additional Issue No. 13-A framed by High Court of H.P. 13A. Whether suit land was coparcenary property between Lajjya Ram, Jhaiyan and Basu and whether Basu had inherited the coparcenary property by birth and whether right of Basu did not divest in coparcenary property as per Section 12 of Hindu Adoption and Maintenance Act 1956 even after adoption by Kali Dass? OPD 15. In view of above stated facts judgment and decree passed by learned trial Court and affirmed by learned first Appellate Court are reversed and case is remanded back to learned trial Court under Section 107 of Code of Civil Procedure 1908 for limited purpose only. It is held that limited retrial is necessary in the ends of justice. Learned trial Court will re-admit the suit under its original number in the register of civil suits. Observations will not effect merits of case in any manner. It is held that limited retrial is necessary in the ends of justice. Learned trial Court will re-admit the suit under its original number in the register of civil suits. Observations will not effect merits of case in any manner. Learned trial Court after giving due opportunity to both the parties to lead evidence in support of additional issue No. 13-A framed by High Court will decide the case afresh in accordance with law within two months after receiving the file because present civil suit is pending since 1990 and require expeditious disposal. Evidence recorded during original trial shall subject to all just exceptions be evidence during trial after remand. Observations will not effect merits of case in any manner. Parties are left to bear their own costs. Memo of costs be prepared by the Registrar (Judicial) and thereafter file of learned trial Court and file of learned first Appellate Court along with certified copy of this order and memo of costs will be transmitted forthwith. Appeal stands disposed of. Pending application(s) if any also stands disposed of.