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2019 DIGILAW 2497 (RAJ)

Mahadev v. Rameshwar

2019-09-17

SANDEEP MEHTA

body2019
JUDGMENT : Sandeep Mehta, J. 1. The instant second appeal has been preferred by the appellant plaintiff Mahadev being aggrieved of the judgment-cum-decree dated 07.10.2017 passed by the learned Additional District Judge No. 2, Bhilwara in Civil Original Appeal No. 19/2012 whereby, the first appellate court, affirmed the judgment-cum-decree dated 21.07.2012 passed by the learned Civil Judge (Jr. Division), Mandal, District Bhilwara in Civil Original Case No. 36/2011 rejecting the suit for declaration and permanent injunction filed by the appellant plaintiff. 2. I have heard and considered the submissions advanced at Bar and have gone through the impugned judgments and the record. 3. The appellant Mahadev, being the son of Rameshwar, filed the suit for declaration and injunction claiming that he was the adopted son of Chothu and thus, he was entitled to a share in the property of Shri Chothu who passed away on 29.12.2001. A declaration was sought for cancellation of the sale deed executed by Smt. Jamni in favour of her son Rameshwar. The trial court, examined the controversy and came to a conclusion that the plaintiff could not lead any plausible evidence to show that he had gone in adoption to Shri Chothu. The Godnama (Ex. 7) which the plaintiff relied upon, did not indicate that it bore the thumb impression of Chothu. No consent of the plaintiff's mother was taken before the Godnama was executed. After arriving at these findings, the learned trial court, proceeded to decide all the issues in favour of the defendants and against the plaintiff and dismissed the suit by judgment-cum-decree dated 21.07.2012. The said judgment was assailed by the appellant plaintiff by way of a first appeal which too was dismissed as above. Hence this second appeal. 4. Learned counsel representing the appellant has proposed the following substantial questions of law seeking admission of the appeal: "(i) Whether the learned trial court has committed grave illegality while not considering the documentary and oral evidence adduced by the plaintiff-appellant in right perspective? (ii) Whether the learned courts below were right in not considering the fact that plaintiff-appellant was adopted as per the prevailing tradition and customs in the society? (ii) Whether the learned courts below were right in not considering the fact that plaintiff-appellant was adopted as per the prevailing tradition and customs in the society? (iii) Whether the learned courts below committed grave error while not considering the vital aspect of the matter that if the adoption of the plaintiff-appellant is not considered just and proper then also, the plaintiff-appellant is/was having right over the share in the suit property being the heirs? (iv) Whether the learned courts below has considered the Section 6 of the Hindu Succession Act in its right perspective? (v) The learned courts below have also failed to consider whether the mutation entry has been entered into without or with the consent of the Panchayat? (vi) Whether the learned trial court has committed grave illegality while not considering the Ex. 6 and 7 (registered adoption deed) as produced by the plaintiff-appellant? (vii) Whether the learned first appellate court has committed illegality while not deciding the appeal issue wise? (viii) Whether both the courts below are right in deciding the suit as well as appeal on the basis of the averments of the defendants specially when there is no basis for the same? (ix) Any other substantial question of law, which this Hon'ble Court deems fit may be framed." 5. Upon a thorough perusal of the proposed questions in light of the material available on record, this Court is of the firm opinion that the appeal does not involve any question of law what to talk of a substantial one. The questions proposed are simply disputed questions of facts. Two courts of competent jurisdiction have recorded concurrent findings of facts against the plaintiff appellant while dismissing his suit as well as the appeal. The impugned judgments ex-facie do not suffer from any illegality or infirmity whatsoever nor has the appellant's counsel been able to satisfy the Court regarding the existence of any substantial question of law in this second appeal. Ex-facie, the very foundation of the plaintiff's suit that he had gone in adoption to Chothu was rightly found not substantiated/established considering the fact that the adoption deed gave no indication regarding it bearing the thumb impression of Chothu. Further, the consent of the plaintiff's mother was also not recorded in adoption proceedings. 6. In this background, I find no merit in this second appeal. Further, the consent of the plaintiff's mother was also not recorded in adoption proceedings. 6. In this background, I find no merit in this second appeal. The impugned judgment-cum-decree dated 07.10.2017 passed by the learned Additional District Judge No. 2, Bhilwara and the impugned judgment-cum-decree dated 21.07.2012 passed by the learned Civil Judge (Jr. Division), Mandal, District Bhilwara are affirmed. The second appeal is dismissed as being devoid of merit. The decree be prepared accordingly. 7. Record be returned to the learned trial court forthwith.