Jaswant Singh. vs Bahadur Singh And Others.

The appellant/plaintiff has filed the present appeal being aggrieved by judgment and decree dated 23.3.2001 passed by 1st Additional District Judge, Shajapur in Civil Suit No.12-A/1999 whereby the suit has been dismissed.

Facts of the case, in short, giving rise to this appeal are as under :

(i) The plaintiff filed the suit for declaration, possession and mesne profit by claiming 1/4th share of Parwatibai in 'Khata' No.414 being an adopted son of Parwatibai. According to the plaintiff, the properties mentioned in Schedule A, B and D were received by Parwatibai from her parents by way of succession. Parwatibai adopted the plaintiff as her son under the customs and rituals prevailing in the community on 2.4.1970. She was having two agricultural accounts in Village Mardana and as per 1987 'Jamabandi', Account No.330 area 4.180 Hect. comprised of 6 survey numbers was of the ownership and occupation of Parwatibai. The details are mentioned in Schedule A. He further pleaded that as per 'Jamabandi', in the year 1985-86, Account No.414 comprised of total 55 survey numbers, area 52.14 Hect. and Parwatibai was having 1/4th share. The details are mentioned in Schedule B. The family-tree has been mentioned by the plaintiff in Schedule C. In Village Mardana, Parwatibai was having two houses. The details are mentioned in Schedule D, E annexed with the plaint. She received the same from her mother - Jadavbai by way of succession. Parwatibai was a child-widow. Father of the plaintiff - Ramcharan has given him for adoption in the presence of local residents and members of the community viz. Amarsingh, Kanhaiyalal, Chhotelal, Ranjeet Singh, Radhakishan and Nathulal. 'Pagadi' ceremony was performed and sweat was distributed and Parwatibai declared the plaintiff as her adopted son/successor and owner of the movable and immovable property. At that time, the plaintiff was 6 years of age. The deed was executed on stamp paper of Rs.2/-.

(ii) The plaintiff has further pleaded in the plaint that in the year 1974, the proceedings under the Urban Land (Ceiling & Regulation) Act were initiated against Parwatibai. She filed the 'Vivrani' in which she disclosed that the plaintiff is her adopted son. Thereafter, vide order dated 3.9.1975, Sub Divisional Officer (SDO) closed the case. Parwatibai expired on 24.8.1980 and last rights were performed by the plaintiff and he became owner of the properties of Parwatibai. He submitted an application u/s. 109 and 110 of M.P. Land Revenue Code before the Tehsildar on 29.1.1979. In the said case, respondents/defendants No.1 and 2 submitted an objection on the basis of Will dated 14.2.1977 and because of which, name of the plaintiff was not mutated and on the basis of Will, name of defendants No.1 and 2 was mutated. Learned Tehsildar dismissed the application. Thereafter, the plaintiff preferred first appeal and second appeal and both have been dismissed. Thereafter, cause of action accrued in his favour for filing the present suit.

(iii) Defendants No.1 and 2 filed the written statement by submitting that the details in respect of Account No. 330 given by the plaintiffs are not accepted because in the said Account, only four survey numbers are there. The house mentioned in Schedule E is belonging to father of defendant No.1 and No.2 - Laljiram and not to Parwatibai. They have also denied the adoption of the plaintiff by Parwatibai. They stated that they had performed the last rituals after the death of Parwatibai. At the time of death, Parwatibai was residing along with her brother - Laljiram and because of which she executed the Will in favour of defendants No.1 and 2.

(iv) On the basis of pleadings, learned trial Court framed 10 issues for adjudication. The plaintiff examined himself as P.W.1; Ramlal as P.W.2; Bherusingh as P.W.3; Bapusingh as P.W.4; and Ramcharan as P.W.5 and got exhibited five documents as Ex. P/1 to P/5. In defence, the defendants examined Bahadursingh @ Bahadarsingh as D.W.1; Ramsingh as D.W.2; Rajendra Kumar Jain as D.W.3; Yogesh Gupta as D.W.4; and Chandrasingh as D.W.5 and got exhibited 15 documents as Ex. D/1 to D/15.

(v) After evaluating the evidence came on record, learned trial Court has held that the plaintiff has failed to prove his adoption by Parwatibai as he did not produce any documentary evidence to establish that he used the name of Parwatibai as his mother in any of the documents and stopped writing the name of his biological father - Ramcharan. However, learned trial Court has notfound the adoption deed as forged. Learned trial Court has found the Will proved in favour of defendants No.1 and 2. While answering Issue No.4, learned trial Court has held that Parwatibai had a right to execute the Will. The defendants have also been found into the possession of the house and the plaintiff has failed to prove that the house mentioned in Schedule E was of the ownership of Parwatibai. Vide judgment and decree dated 23.3.2001, learned trial Court has dismissed the suit, hence the present first appeal before this Court.

Shri A.K. Sethi, learned senior counsel appearing for the appellant, submitted that the trial Court has erroneously held that the plaintiff was not adopted by Parwatibai, whereas the plaintiff has examined P.W.1 to P.W.4 who were present at the time of adoption ceremony. Parwatibai herself disclosed the fact of adoption before the SDO in the proceedings under Urban Land (Ceiling & Regulation) Act and the SDO vide order dated 3.9.1975 (Ex. P/5) has closed the case because Parwatibai and her adopted were entitled to hold 54 Acres of land. Merely because the plaintiff has not produced any document like mark-sheet and school living certificate in which name of Parwatibai could have been used as mother, the adoption cannot be denied. Hence, the findings recorded by the trial Court are perverse and liable to be set aside. The appellant is entitled to decree of declaration.

Shri Sethi, learned senior counsel appearing for the appellant/plaintiff, further submitted that even if the defendants No.1 and 2 are having the Will executed by Parwatibai in their favour but according to which, they are only entitled to have 1/4th share in Account No.298, hence the learned Court below ought to have granted the decree in favour of the plaintiff for the remaining immovable properties of Parwatibai.

Despite due service of notice on the respondents/defendants, no one has appeared on their behalf.

I have heard the learned senior counsel appearing for the appellant/plaintiff at length and perused the record of Court below.

The entire suit of the plaintiff is based on adoption by Parwatibai. At the time of adoption, the plaintiff was aged about 6 years, but he remembers all about the adoption process and the ceremonies held at the relevant point of time. He has examined P.W.2 - Ramlal who was present at that time and has stated that Jaswant Singh i.e. the present plaintiff, was given to Parwatibai by his father and since then, he is being known as son of Parwatibai. P.W.3 - Bherusingh is also a witness of adoption deed (Ex. P/1). He has been turned hostile because he has only stated that he written a deed in presence of only Bapusingh. He was not present at the time of execution of adoption-deed. P.W.4 - Bapusingh was not present at the time of adoption ceremony but he has deposed that the adoption deed was prepared. He has also proved the presence of other witnesses. In the cross-examination, he has stated that wife of Ramcharan i.e. his mother was also there. P.W.5 has also supported the case of the plaintiff as he was present at the time of adoption. In the cross-examination, the defendants have not asked any question from the plaintiff as to why he has not used the name of Parwatibai in any of the documents. Therefore, it is not the case of the defendants that the adoption deed is a forged one because the plaintiff has never used the name of Parwatibai as his mother. Learned trial Court has observed from its own and created doubt over the adoption for want of any document, whereas by way of oral evidence, the plaintiff has proved the adoption. The plaintiff has filed the certified copy of the order of SDO as Ex. P/5 in which it is clearly written that Parwatibai has produced the adoption deed which proves that Jaswant Singh is her adopted son and both are entitled to hold 54 Acres of land under the Urban Land (Ceiling & Regulation) Act and accordingly he has closed the case. Therefore, it cannot be presumed that the adoption deed was prepared only to save the land from the proceedings under Urban Land (Ceiling & Regulation) Act. When the adoption deed was prepared and it was used by Late Parwatibai at the relevant point of time to save her land, then the plaintiff is entitled to get the benefit of it.

It is not in dispute that despite adoption of the plaintiff, Parwatibai being exclusive owner of the property was empowered to execute the Will. The Court below has rightly held that the defendants have successfully proved the Will by examining the attesting witnesses. Even otherwise, the defendants are having registered Will in their favour and the same has been found proved by the revenue authorities also. By way of Will dated 14.2.1977, Parwatibai has only given her 1/4th share i.e. Account No.298 area 53.03 Hect. and one house situated in Village Madana in favour of defendants No.1 and 2 and for which the plaintiff is not entitled for decree of title. The plaintiff is entitled for the decree of title by virtue of adoption in respect of all the properties of Parwatibai except properties mentioned in the Will.

In view of the foregoing discussion, the appeal is partly allowed. The appellant/plaintiff is entitled for decree of title in respect of the remaining properties of Parwatibai excluding the property i.e. Account No.298 area 53.03 Hect. and one house at Village Madana as mentioned in the Will dated 14.2.1977. Let a decree be drawn up accordingly.

With the aforesaid, this appeal stands disposed of. No order as to costs.