Ajmer Singh vs Virender Singh alias Shiv Kumar

Swantanter Kumar, J.—Learned Ist Appellate Court vide judgment and decree dated 31.1.1997 dismissed the appeal preferred by Ajmer Singh and others (defendants No. 1 to 3 in the suit) with costs. This judgment of the learned Ist Appellate Court is assailed in this Regular Second Appeal before this Court.

In order to deal with respective rival contentions raised before this Court by the learned Counsel appearing for the parties, it would be necessary to refer to bare facts giving rise to this regular second appeal :

One Shri Bijja Singh was admittedly owner of the suit property measuring 121 kanals 5 marlas. Virender Singh alias Shiv Kumar claimed himself to be adopted son of Bijja Singh. Claiming the said relation and right of inheritance to the property of Bijja Singh, Virender Singh plaintiff challenged the legality and validity of the judgment and decree dated 5.5.1982 passed by Shri R.C. Godara, SubJudge, Ambala City. This decree was passed in the suit titled as Ajmer Singh and others v. Bijja Singh. The plaintiff claimed that he was adopted son of Bijja Singh vide registered adoption deed dated 1.6.1979 and on the same day, he also executed a will bequeathing his movable and immovable property in favour of the plaintiff. It was averred that thumb impressions of Bijja Singh were got on the written statement by misrepresentation and undue haste. As the decree was obtained by mis representation, the same was liable to be set aside. An additional ground was taken that the statement of Bijja Singh was never recorded in Court and the suit in regard to agricultural land filed against Bijja Singh was not even maintainable, as such, the decree is not enforceable in law.

The suit was contested by the defendants who filed common written statement. They took various objections in regard to maintainability of the suit, locus standi of the plaintiff to file the suit and misjoinder of necessary party. On merits, it was pleaded that the decree dated 5.5.1982 was suffered by Bijja Singh with his consent and was not the result of collusion or misrepresentation. Bijja Singh was stated to be real uncle of these defendants. The impugned decree was, therefore, suffered out of free will. It has been noticed by the learned Courts below that when the suit was originally instituted, Bijja Singh was impleaded as defendant No. 5 in the suit, who filed written statement and admitted the averments made by the plaintiff in the plaint, but he died during the pendency of the suit. According to the plaintiff, he was the sole legal heir in preference to others, thus, representing the estate of Bijja Singh deceased.

In view of contradictory stand taken by the parties, the learned trial Court had framed issues on 27.7.1983 and another additional issue was framed on 8.8.1994. The issues read as under :

Whether the impugned decree dated 5.5.1982 is illegal, void and was secured by defendants No. 1 to 3 against defendant No. 5 in collusion with each other as alleged in the plaint ? OPP

Whether the impugned decree was secured by defendants No. 1 to 3 against defendant No. 5 when the latter was under their influence ? OPP

Whether defendant No. 5 executed a registered will dated 1.6.1979 in favour of the plaintiff and adopted the plaintiff vide adoption deed dated 1.6.1979 ? OPP

Whether the suit is bad for nonjoinder of necessary parties ? OPP 1 to 3.

Whether the present suit is not maintainable in the present form ? OPD 1 to 3.

Whether the plaint deserves to be rejected as alleged in the additional plea No. 1 ? OPD 1 to 3.

1A. Whether the judgment and decree dated 4.6.1983 is wrong, null and void and is liable to be set aside, as alleged ? OPD.

Relief.

Learned trial Court vide judgment and decree dated 24.11.1995 decided all the relevant issues in favour of the plaintiff and against the defendants. Issues No. 1A, 5 and 6, the onus of which was placed on the defendants, were not pressed by the learned Counsel for the defendants, as such, they were obviously decided as not pressed against the defendants. Consequently, the suit was decreed and judgment dated 5.5.1982 was declared to be null and void. As already noticed, this judgment and decree was unsuccessfully assailed in appeal before the learned Ist Appellate Court by the appellants therein. This resulted in filing of this regular second appeal by Ajmer Singh and others against Virender Singh alias Shiv Kumar.

While impugning the judgment of the learned Courts below, the learned Counsel appearing for the appellant has mainly raised the following four contentions :

(1) The learned courts below have not appreciated the evidence in its correct perspective and have, therefore, fallen in error of judgment;

(2) The learned courts below ought to have drawn inference against the plaintiff for not producing Bijja Singh in the present proceedings;

(3) The learned first appellate Court having found that as a matter of fact the statement of Bijja Singh was recorded in the court ought to have set aside the judgment and decree passed by the learned trial Court;

(4) The suit of the plaintiff was not maintainable as framed and ought to have been dismissed by the learned Courts below.

Reacting to these contentions, the learned Counsel for the respondent argued that :

(a) Compromise decree in the previous suit being result of a fraud and not being in consonance with the provisions of Order 23 of the C.P.C. could not to be said to be binding upon the parties to the present suit;

(b) The decree having not been registered in accordance with the provisions of Indian Registration Act is incapable of accruing any interest on the immovable property in favour of the defendants in the present suit. The decree, if at all, was a decree on admission and was not hit by the provisions of Order 23 Rule 3A as it was not at all a decree on compromise between the parties; the maintainability of the suit thus cannot be assailed on any ground.

(c) In the facts and circumstances of the case, no adverse inference could be drawn against the plaintiff for nonproduction of Bijja Singh in regard to his alleged conduct in the previous suit. The adoption of the plaintiff having been proved on record, all these pleas raised by the learned counsel for the appellant are irrelevant and insignificant.

All the contentions raised by the learned Counsel appearing on behalf of the respective parties are interdependent. It will be appropriate to discuss the contentions so raised, collectively.

The first and foremost question that falls for determination is whether the plaintiff is, at all, adopted son of Bijja Singh, deceased. In this regard, the learned courts below have come to a concurrent finding of fact upon proper appreciation of evidence that the plaintiff had discharged the onus of this issue and the adoption had been proved before the Court in accordance with law. Smt. Vidyawati, natural mother of the plaintiff, Virender Singh alias Shiv Kumar and Smt. Shado, adopted mother were examined in Court. These witnesses proved that Virender Singh was the natural son of the brother of Smt. Shado, namely Swaran Singh.

It was stated that he was given in adoption on 1.6.1979 vide the deed of adoption duly executed and proved on record. This deed of adoption was attested by Lambardar and Advocate Mr. Anand Sharma. The deed was written by scribe Mr. Suresh Kumar Jaiswal, Advocate. This was exhibited as Ex. P.1. In addition thereto PW3 Swaran Singh was also examined in Court who confirmed the facts averred by the other witnesses. In furtherance to Ex. P.1, adoption deed, a notice was duly published in the newspaper as well as the photograph Ex. PW.3/A which was taken on the occasion of adoption, was proved on record. In the face of this documentary and oral evidence, the only evidence adduced by the defendants to challenge the deed of adoption was the bald statement of the defendant himself. The learned Courts below have rightly rejected the case of the defendant on this issue and affirmed the findings arrived at by the learned trial Court that adoption stands fully proved.

It is a settled principle of law that an adopted son from the date of adoption enjoys its benefits and gets a right of inheritance as a natural son in accordance with law. As such, right of the plaintiff in the property in question accrued right from 1.6.1979, the date on which he was adopted.

The learned Counsel for the respondent argued that the child was given and taken in adoption in accordance with law and Ex. P.1, the adoption deed, fully satisfies the ingredients spelled out under Sections 12 and 16 of the Hindu Adoption and Maintenance Act. The real PHUPHA and BUA had been given the adoption with performance of complete ceremonies. I am unable to see any error which could hit the adoption for violating the prescribed provisions of the ceremonies required. The adoption deed is a registered one and supported the case of the plaintiff in the suit.

Learned Counsel appearing for the appellantdefendant argued that in view of the principles enunciated in the case of Banwari Lal v. Chando Devi, AIR 1993 Supreme Court 1139 : 1993(3) RRR 685 (SC), the suit in question was not maintainable and was hit by the provisions of Section 3A of Order 23 of the Civil Procedure Code. On the other hand, the learned Counsel for the respondent argued that the above bar was not operative in the facts and circumstances of the case. The compromise decree was not passed in accordance with the provisions of Order 23 of the Code and was a decree on admission, as such the decree in the previous suit cannot attract the bar postulated under Rule 3A of Order 23 of the Code.

It is not disputed that Bijja Singh had died on 25.6.1986 but had filed the written statement on 2.4.1985. The case was fixed for evidence after his death. It was contended that the thumb impressions of Bijja Singh had been obtained by fraud, which facts were disputed by the learned counsel for the appellants. Even if it is assumed that the written statement was correctly signed by the defendant in the earlier suit (Bijja Singh), in that circumstance a decree would be passed on admission under the provisions of Order 12 Rule 6 of the Code and the provisions of Order 23 of the Code would have no application.

It is clear from the records produced before this court that in suit No. 154 of 1982 no application was filed as required under Order 23 Rule 3 of the Code nor statements of the parties in support of such compromise were recorded. As already pointed out, Bijja Singh had died in the present suit prior to recording of evidence and he had filed a written statement in the present suit conceding to the fraud played upon him. Written statement on behalf of Bijja Singh explaining that a fraud was played upon him and he had put in thumb impressions on some applications in the previous suit. Those applications were supposed to be moved before the competent authorities, but his signatures have been used in the previous suit and he has specifically disputed the forming of a joint family with the other defendants.

Another pertinent fact which must be noticed by this court is that no objection of this kind was ever raised in the written statement filed on behalf of the contesting defendants that the suit was barred under the provisions of Order 23 Rule 3A of the Code. Even if this objection was available to them, the objection would be deemed to have been waived by them as the appellants participated not only in the suit proceedings but even in appeal without raising the said objection. The learned counsel for the respondent relied upon a judgment of this Court in the case titled as Chand Kaur v. Raj Kaur, 1996(3) PLR 523 : 1996(3) RCR(Civil) 512 (P&H); to argue that to bring the bar constituted under Order 23 Rule 3A of the Code, there has to be a lawful compromise between the parties, the compromise should be in writing and signed by the parties, such compromise should be recorded in the court upon the statement of the parties and the court upon satisfaction must pass a decree in terms thereof. This composite compliance is a condition precedent for rendering the subsequent suit not maintainable and admittedly in the present case, these essential ingredients are missing. It is further contended that in these circumstances no bar could operate in the present suit. I am quite in agreement with the contention raised because even the provisions of Order 23 of the Code of Civil Procedure had not been satisfied even in the previous case. At best the decree could be stated to be a decree on admission of Bijja Singh and that would not help the case of the present appellants to establish a bar to the maintainability of the suit per se.

Another contention raised by the learned Counsel is that even if the case of the present appellants is accepted, the decree passed in the previous suit (Suit No. 154 of 1982, titled as Ajmer Singh v. Bijja Singh) is ineffective and incapable of passing any title to the appellants because it was an unregistered document. It is an admitted case that the property belonged to Bijja Singh and it is only by the passing of the decree in the previous suit that rights of the present appellants were created in the property for the first time. The decree was simplicitor on admission creating rights and even if it is treated to be a decree on compromise, even then it was required to be registered in accordance with the provisions of the Indian Registration Act. As per the principles enunciated by the Court in the case of Bhoop Singh v. Ram Singh Major, AIR 1996 (SC) 196 : 1995(3) RRR 541 (SC), the registration was mandatory. This contention of the learned Counsel is also supported by the decision of this court in the case of Chand Kaur (supra). Even on this ground, the case of the appellants would fail.

The learned courts below have arrived at a concurrent finding of fact on all the issues and have decreed the suit of the plaintiff. No adverse inference could be drawn against the plaintiffrespondent herein for not producing Bijja Singh, because, admittedly, before recording of evidence in the present case he had already died. It is true that the learned trial Court as well as the learned first appellate court have appreciated the evidence and have examined the case from various possible tenable views. The validity of adoption and its attendant circumstances is primarily a question of fact which had to be decided on the basis of the available evidence produced on record. Whether a particular document created a right for the first time is again a question primarily of a fact. Such factual conclusion would depend upon the language of such a document and the oral evidence produced in support thereof. There could be no dispute that but for the decree passed in suit No. 154 of 1982 and conclusion of fact in that suit that the property in question was a joint Hindu Family property between the decreased Bijja Singh and his relations, the present appellants would have no case. In other words, the said document for the first time created right of the parties in the suit property and by no stretch of imagination it could be said that it confirmed an existing right. Thus, on both these contentions, the appellants must fail.

In view of the law settled by the Hon''ble Supreme Court of India in the case of Kashibai v. Parwatibai, 1995(3), Recent Revenue Reports page 524 and Ramanuja Naidu v. V. Kanniah Naidu and another, J.T. 1996(3) S.C. 164 : 1996(2) RRR 554 (SC), this court should not interfere in concurrent findings of fact arrived at by the learned Courts below unless and until such findings on the face of it were perverse and/or were based on no evidence. In the case of Ramanuja Naidu (supra) the Hon''ble Supreme Court held as under :

"The concurrent findings of the courts below that Ex. B2, sale deed in favour of the first defendant is earlier in point of time and was genuine and valid is a finding of fact. Such a finding was not open to any challenge in Second Appeal. The learned Single Judge of the High Court totally misconceived his jurisdiction in deciding the second appeal under Section 100 of the Code of Civil Procedure in the way he did. No question of law arose for consideration before the learned Single Judge."

I am unable to see any such infirmity in the judgments of the courts below and the concurrent findings of facts arrived at by them need to be affirmed.

In view of the above discussion, the regular second appeal is without merit and the same is hereby dismissed. However, there shall be no order as to costs.