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2015 DIGILAW 931 (GAU)

BHAG SINGH CHETRI v. MAHINDRA SINGH RAKHRA

2015-07-29

A.K.GOSWAMI

body2015
JUDGMENT : 1. Heard Mr. S. K. Barkataki, learned counsel for the appellant/plaintiff. Also heard Mr. S. Kataki, learned counsel for the respondents. 2. This Second Appeal by the plaintiff is preferred against the judgment and decree dated 30.08.2004, passed by the learned Additional District Judge, Nagaon, in Title Appeal No. 9/2003, allowing the appeal and setting aside the judgment and decree dated 16.08.2003, passed by the learned Civil Judge, Senior Division, Nagaon, in Title Suit No. 69/97. 3. The plaintiff filed the suit for right, title, interest and for confirmation of possession; for permanent injunction restraining the principal defendant No. 1 from disturbing the plaintiff’s peaceful possession; to issue precept to the revenue authority for deletion of the name of the principal defendant No. 1 from suit patta; to grant recovery of possession in case the plaintiff is dispossessed during the pendency of the suit; cost of the suit, etc., in respect of the plots of land at Sl. Nos. (i) to (iv) described in the Schedule. 4. At this juncture, before going to the case set out by the plaintiff, it will be appropriate to state that the plot of land mentioned as Sl. No. (iv) in the Schedule to the plaint was claimed to be self-acquired property of the plaintiff, while the other plots of land under Sl. Nos. (i), (ii) and (iii) are stated to be ancestral property of his father, namely, Mangal Singh. 5. It will now be apposite to briefly notice the case set out by the plaintiff in the plaint. It is pleaded that Mangal Singh had married one Durga Devi, who was earlier married to one Meher Singh. Out of the wedlock of Meher Singh and Durga Devi, they were blessed with two sons, namely, Diwan Singh and Mahendra Singh and they were brought up in Punjab by the grand-father after the death of Durga Devi. The plaintiff claims himself to be the only son of Durga Devi and Mangal Singh. Durga Devi expired in the year 1930 and Mangal Singh settled at Lanka, in Assam, with the plaintiff. The plaintiff claims himself to be the only son of Durga Devi and Mangal Singh. Durga Devi expired in the year 1930 and Mangal Singh settled at Lanka, in Assam, with the plaintiff. The principal defendant No. 1, after the death of Durga Devi, came to Lanka, Assam, from Punjab and started living separately and, in the year 1984, filed four mutation cases to have his name recorded in the suit patta on the ground that he was adopted son of Mangal Singh though, in fact, there was no adoption and, thus, was not entitled to succeed to the estate of Mangal Singh. The prayer made by him was rejected by the Sub-Deputy Collector, Lanka, on 16.01.86. However, in the appeals preferred by the principal defendant No. 1, the Additional Deputy Commissioner, Nagaon, vide his order dated 05.09.94, directed to record the name of the principal defendant No. 1 in the records of rights. The appeal preferred by the present appellant before the learned Assam Board of Revenue also came to be dismissed vide order dated 08.04.96. Thereafter, the principal defendant No. 1, on 25.04.96, threatened to dispossess the plaintiff from the suit land necessitating filing of the suit. 6. The principal defendant No. 1 filed written statement stating, amongst others, that the plaintiff, the principal defendant No. 1, Diwan Singh and Mangal Singh were members of a joint Hindu family and the sale deed in respect of 6 Bigha of land, though shows the name of the plaintiff as purchaser, the consideration amount was paid from the fund of the joint family. It is also pleaded that, as claimed by the plaintiff, he was not the only son of Mangal Singh, but the principal defendant as well as Diwan Singh were adopted sons of Mangal Singh. It is further pleaded that a registered deed of adoption was also executed on 19.10.1929 and that taking and giving in adoption had also taken place as per prevalent custom. After marriage with Durgi Devi (that is how it is written), Mangal Singh along with his wife Durgi Devi and his two sons came to Lanka, Assam, where the plaintiff was born. After marriage with Durgi Devi (that is how it is written), Mangal Singh along with his wife Durgi Devi and his two sons came to Lanka, Assam, where the plaintiff was born. Mangal Singh died in the year 1962 and, thereafter, the brothers had partitioned the properties left behind by Mangal Singh in terms of which Diwan Singh took major portion of the paternal properties in Punjab, whereas the plaintiff and the principal defendant No. 1 took the paternal properties at Lanka, Assam. Diwan Singh went back to Punjab. It is also pleaded that the plaintiff and the principal defendant No. 1 have title and possession in equal shares in the properties left behind by Mangal Singh. In these circumstances, it was prayed in the written statement that the suit of the plaintiff be dismissed. 7. The learned Trial Court framed the following issues: “1. Whether there is any cause of action for the suit? 2. Whether the suit is maintainable in its present form? 3. Whether the suit is barred by waiver, estoppel and acquiescence? 4. Whether the defendant is an adopted son of Late Mangal Singh? 5. Whether there was any proper adoption as per deed of adoption dated 19.10.29 of the defendant No. 1? 6. Whether the defendant is entitled to any property left by Late Mangal Singh? 7. Whether the plaintiff is entitled to relief as prayed for? 8. To what relief/reliefs the parties are entitled under the law, equity and justice. Additional issue: 9. Whether the suit is bad for non-joinder of necessary parties, Diwan Singh, the other brother of the plaintiff?” 8. Both sides examined three witnesses each apart from exhibiting a number of documents. The registered deed, dated 19.10.1929, which the defendant claimed to be a deed of adoption, which was in Urdu, was exhibited by the defendant as Ext.-‘Ka’. English translated copy and Assamese version thereof were also exhibited as Ext.-Ka(1) and Ka-(2). The learned Trial Court held that adoption was not proved and, therefore, defendant No. 1 was not entitled to any property left behind by Late Mangal Singh and, accordingly, decreed the suit. 9. English translated copy and Assamese version thereof were also exhibited as Ext.-Ka(1) and Ka-(2). The learned Trial Court held that adoption was not proved and, therefore, defendant No. 1 was not entitled to any property left behind by Late Mangal Singh and, accordingly, decreed the suit. 9. The Second Appeal was admitted to be heard by an order dated 08.04.05, on the following substantial question of law: “Whether the learned court below was error in law in reversing the judgment and decree of the trial court dated 16.08.2003 which is erroneous construction of Exhibit ‘Ka’?” 10. Learned counsel for the parties submit that the word “was” was inadvertently typed out in the substantial question of law in place of the word “committed”. I find substance in such submission. 11. Mr. Barkataki, learned counsel for the appellant, at the very outset, has assailed the impugned judgment of the learned Lower Appellate Court on the ground that the learned Lower Appellate Court did not advert to the case of the plaintiff that 6 Bigha of land, in Sl. No. (iv), was self-acquired property of the plaintiff. Irrespective of the fact as to whether the principal defendant No. 1 was an adopted son of Mangal Singh or not, when the plaintiff had proved the purchase of 6 Bigha of land vide Ext.-5, and when the principal defendant No. 1 had failed to adduce any evidence with regard to his claim that the aforesaid 6 Bigha of land was purchased from the joint family fund, the dismissal of the suit in its entirety is wholly not sustainable. It is further submitted by Mr. Barkataki that by no stretch of imagination Ext.-‘Ka’ can be construed to be a deed of adoption. The defendant also failed to prove that he was validly taken in adoption by Mangal Singh and, therefore, the finding of the learned Lower Appellate Court that Ext.-‘Ka’ demonstrates adoption, thereby dismissing the suit of the plaintiff is not sustainable in law. 12. Mr. S. Kataki, learned counsel for the respondent No. 1 has submitted that although the claim of the principal defendant No. 1 to the property left behind by Mangal Singh was based on adoption, in the suit filed, the plaintiff did not seek any declaration that there was no adoption by Mangal Singh, or that the principal defendant No. 1 was not the adopted son of Mangal Singh. It is submitted by him that in absence of any challenge, the learned Lower Appellate Court rightly held that the plaintiff’s prayer for declaration of right, title and interest could not be granted. With regard to the submission of Mr. Barkataki that the learned Lower Appellate Court was in error in dismissing the suit of the plaintiff with regard to the plot of land mentioned in Sl. No. (iv) of the Schedule, Mr. Kataki, in his usual fairness, has submitted that there is no evidence of the principal defendant No. 1 to sustain the plea taken by him in the written statement that the land in Sl. No. (iv) of the Schedule was purchased from the fund of their joint family property. 13. I have considered the submissions of the learned counsel for the parties and have perused the materials on record. 14. There is no dispute that in Ext.-5, registered sale deed in respect of 6 Bigha of land in Dag No. 1482/1483 of Periodic Patta No. 138, the purchaser was shown to be the plaintiff. As the defendant had failed to establish his case that Ext.-5 will not confer right, title and interest only on the plaintiff as the consideration amount had been paid through the joint family fund, the plaintiff must be held to have right, title and interest in respect of the aforesaid 6 Bigha of land. The learned Lower Appellate Court did not examine this aspect of the matter and thoroughly overlooked this issue. The learned Lower Appellate Court, however, on perusal of the materials on record, recorded the finding that in his cross-examination, the plaintiff had admitted to a mutual partition, thereby lending credence to the case of the principal defendant No.1 that there was adoption. The learned Lower Appellate Court repelled the finding of the learned Trial Court with regard to Ext.-‘Ka’ by holding that such finding had been recorded overlooking the material evidence on record. 15. There is some difference in the translated version in Assamese and English of the deed dated 19.10.1929. However, there is no difference in the core contents. It proclaimed that the defendant No. 1 as well as his brother, Diwan Singh, are adopted sons of Mangal Singh. It was also expressly stated that if they or any of them are taken away by their grand-father, they will not be entitled to a share in his property. 16. However, there is no difference in the core contents. It proclaimed that the defendant No. 1 as well as his brother, Diwan Singh, are adopted sons of Mangal Singh. It was also expressly stated that if they or any of them are taken away by their grand-father, they will not be entitled to a share in his property. 16. PW1, in his cross-examination, stated that the house, in which the principal defendant is residing, as well as the land on which the house is built, earlier belonged to Mangal Singh. It is also stated by him in respect of some other land that the said land had fallen in the share of defendant No. 1 after partition in between him and the principal defendant No. 1. The very evidence of PW1, demonstrating partition of some of the properties, supports the claim of the defendant No. 1 that he was one of the adopted sons of Mangal Singh. When the plaintiff had not questioned the claim of the defendant that he is adopted son of Mangal Singh by praying for proper declaration, it will not be necessary for this Court to embark upon a journey to find out as to whether the adoption was valid or not. Having regard to the long period of time that has elapsed, even otherwise, the Court is entitled to presume that the adoption was made in conformity with the prevalent custom. 17. In view of the above discussion, no right, title and interest can be declared in favour of the plaintiff in respect of Sl. Nos. (i), (ii) and (iii) of the Schedule to the plaint as the said plots of land are ancestral property of the plaintiff. However, Sl. No. (iv) of the Schedule not being ancestral property of the plaintiff and the plaintiff having proved his right, title and interest vide Ext.-5, the plaintiff will be entitled to a declaration to right, title and interest and confirmation of possession in respect of land in Sl. No. (iv) of the Schedule relating to 6 Bigha of land in Dag No. 1482/1483 of Periodic Patta No. 138 of Lanka Town Kissam, Mouza-Lanka, District-Nagaon, Assam. The plaintiff will be entitled to seek correction of records of rights in respect of the aforesaid 6 Bigha of land in case the name of the principal defendant No. 1 has been mutated in the meantime. 18. The plaintiff will be entitled to seek correction of records of rights in respect of the aforesaid 6 Bigha of land in case the name of the principal defendant No. 1 has been mutated in the meantime. 18. Accordingly, the appeal is partly allowed. The impugned judgment of the learned Lower Appellate Court is modified accordingly. Let a decree be prepared, accordingly, in terms of the above. No cost. 19. Registry will send back the records.