Dinesh Kumar Sharma vs Sudhir Kumar & Ors

C.M. No.11195/2018 (exemption)

1.Exemption allowed subject to just exceptions. C.M. stands disposed of.

RFA No.287/2018

2.This Regular First Appeal is filed under Section 96 of Code of Civil Procedure, 1908 (CPC) by the plaintiff in the suit impugning the judgment of the

trial court dated 15.4.2017 by which the trial court has dismissed the suit for partition and injunction filed by the appellant/plaintiff. The suit properties

are the propertie situated on a plot of 3660 sq. yards in Khasra no. 146 of village Burari, Delhi and a plot of 220 sq. yards in the same village.

Appellant/plaintiff claims to be the adopted son of Smt. Bohati Devi after the death of her husband Sh. Laxmi Narain. Smt. Bohati Devi was the wife

of Sh. Laxmi Narain and Sh. Laxmi Narain was the son of Sh. Devki Nandan with Sh. Devki Nandan being the son of Sh. Brahma Nand, the original

owner of the suit property.

3.The suit was contested by the respondents/defendants by taking up two defences. Firstly, it was pleaded that in terms of the oral partition of the

year 1967 Smt. Bohati Devi had already received her share in the suit property and the second defence was that appellant/plaintiff was never adopted

by Smt. Bohati Devi.

4.The relationship between the parties and the contentions of the parties are recorded in paras 1 and 2 of the impugned judgment and which paras

read as under:-

“1.The present suit is for partition and permanent injunction filed by the plaintiff against the defendants. The brief facts of the case, as per the

plaint, are that the plaintiff has alleged that late Sh. Brahma Nand was the predecessor- in-interest, of the parties to the suit. Sh. Brahma Nand was

having three sons namely Devki Nandan, Inder Raj and Desh Raj and they had acquired 1/3rd share each in the properties left by Sh. Brahma Nand.

Sh. Desh Raj was having one son namely Pt. Shree Ram, who had expired leaving behind one son namely Sushil Kumar, who also expired leaving

behind his widow Smt. Bimla Devi i.e. defendant No. 11. Sh. Inder Raj was also having one son namely Omkar Dutt, who had expired leaving behind

his five sons i.e. defendants No. 7, 8, 9, 10 and one Sh. Girish. Sh. Girish also expired. Sh. Devki Nandan was having three sons namely, Sh. Nand

Lal, Sh. Jugal Kishore and Sh. Laxmi Narain. After the death of late Sh. Devki Nandan, they had inherited 1/9th share each in the properties left by

Sh. Brahma Nand. The defendants No. 3 to 6 are the legal heirs of Sh. Jugal Kishore. The defendants No. 1 and 2 are the legal heirs of Sh. Nand

Lal. Sh. Laxmi Narain had expired leaving behind the plaintiff as his sole legal heir, who has inherited 1/9th share out of 1/3rd share of late Sh. Devki

Nandan. The plaintiff was adopted by Smt. Bohati w/o Late Sh. Laxmi Narain and so after the death of Sh. Laxmi Narain and Smt. Bohati, the

plaintiff became the co- owner in the suit properties. The plaintiff and the defendants are the co-owners/ co-sharers in the suit properties. The plaintiff

has requested the defendants several times to partition the suit properties by metes and bounds. The defendants No. 1 and 2 in collusion with the other

defendants want to transfer the suit property to any third person without the permission of the plaintiff. Thus, the plaintiff has filed the suit for partition

of the suit properties and for permanent injunction.

2.In the separate written statement/(s), filed on behalf of defendants No. 1, 2 and defendants No. 4, 5, 6 and 11, (defendants No. 7 to 10 have adopted

the WS filed by defendants No. 4, 5, 6, also 11 and though, order dt. 22.11.2006 wrongly mentioned it as 7 to 11), and also defendant Omwati and

Naveen i.e. Defendant No. 12 and 13, (as per recent amended memo of parties), and the defence put forward by these defendants are similar in

nature, which allege that plaintiff has no right, title or interest in the suit properties and he is not the legal heir of Sh. Laxmi Narain as Sh. Laxmi

Narain had no son at the time of his death and plaintiff is the son of the daughter of Sh. Laxmi Narain, therefore, Smt. Bohati, w/o Late Sh. Laxmi

Narain, could not adopt the plaintiff, being the son of her daughter, (Dhevta). Further, the defendants had denied the plea of the plaintiff that he is

adopted by Smt. Bohati. It is also contended that an oral partition of properties had taken place in the year 1967 and the defendants are in peaceful

possession of their respective shares since the year 1967 as owners and Smt. Bohati Devi has been paid, in lieu of her share and therefore, left with

no right or title in the suit properties, and the suit of the plaintiff is without any cause of action and it be dismissed. Rest of the averments of the plaint

have been stated to be wrong and denied except, which are matter of record.â€​

5.Trial court has dismissed the suit by holding that appellant/plaintiff is not the adopted son of Smt. Bohati Devi. Trial court

however held the issue that whether partition had or had not taken place in the year 1967 in favour of the appellant/plaintiff by holding that no partition

of the suit property had taken place in the year 1967 as claimed by the respondents/defendants. The suit was however dismissed on account of the

finding that appellant/plaintiff was not adopted by Smt. Bohati Devi.

6.Appellant/plaintiff appeared in person and argued his case.

7.Admittedly in the trial court record there is no documentation which would show adoption of the appellant/plaintiff by Smt. Bohati Devi. Neither the

appellant/plaintiff has filed the registered adoption deed as claimed by him to have been executed for his adoption nor has the appellant/plaintiff filed

any documentation of educational institutions in which the appellant/plaintiff studied and which would show that appellant/plaintiff is the son of Smt.

Bohati Devi and Sh. Laxmi Narain. Appellant/plaintiff has not filed any copy of his ration card or passport or any other documentation which would

have shown the appellant/plaintiff to be the adopted son of Smt. Bohati Devi and Sh. Laxmi Narain. Trial court has also held that merely because

mutation orders were issued by the revenue authorities in the name of the appellant/plaintiff would not mean that the said mutation orders will confer

title of the suit property upon the appellant/plaintiff by holding that adoption did take place of the appellant/plaintiff by Smt. Bohati Devi, widow of late

Sh. Laxmi Narain, as the trial court has held that object of mutation proceedings is not to confer any title as per the revenue laws.

8.Before this Court appellant/plaintiff on being put a query, it is not disputed that no documentation whatsoever has been filed by the appellant/plaintiff

in the suit with respect to his adoption such as the alleged registered adoption deed, educational institutions’ certificates, passport, ration card, etc

and the appellant/plaintiff argued that appellant/plaintiff should be held to be the owner because the Financial Commissioner by his order dated

22.5.1995 allowed the appeal of the present appellant/plaintiff and set aside the orders of the SDM of Patel Nagar, Delhi dated 22.7.1991 and the

appellate order passed by Sh. Ramesh Tiwari, Additional Collector on 12.9.1994 by allowing mutation of the name of the appellant/plaintiff in the suit

properties as the adopted son of Smt. Bohati Devi.

9.I cannot agree with the argument urged on behalf of the appellant/plaintiff that the order passed by the Financial Commissioner dated 22.5.1995 will

operate as res judicata between the parties because the concept of res judicata is that a civil court has to hear and finally decide an issue, and only on

such decision being passed, Section 11 CPC would make such decision of the civil court as res judicata. No doubt, doctrine of res judicata is of

general application and wider than Section 11 CPC, however, before even the general doctrine of res judicata applies, it is necessary that judgment

which is passed must be passed by a civil court and not by revenue authorities. It is also noted that the judgment of Financial Commissioner dated

22.5.1995 is an ex-parte judgment in appeal as seen from para 2 of the order of the Financial Commissioner dated 22.5.1995. In my opinion, trial court

has rightly held that decision passed by the revenue authorities in mutation proceedings is only for the purpose of mutation and mutation of a property

in the name of a person does not confer title in favour of the person in whose name mutation is made because such a person in whose name mutation

is made is an adopted son. As already stated above, right to claim interest in the suit properties as an adopted son of Smt. Bohati Devi is an issue

which for being res judicata will have to be by decision of a civil court in which the issue is heard and finally decided, and the order relied upon by the

appellant/plaintiff of the Financial Commissioner is not an order of the civil court.

10.In view of the aforesaid discussion, I do not find any merit in the appeal. Dismissed.