Ram Vrat Tripathi vs DDC & Ors.

S.K. Singh, J.—By means of this writ petition, petitioner has challenged the judgment of the Deputy Director of Consolidation and that of the Settlement Officer, Consolidation dated 1412 1990 and 2031989 (Annexures 5 and 3) respectively.

Proceedings are under Section 9A(2) of the UPCH Act which relates to the adjudication of dispute about title between the parties. The dispute relates to land comprised in Khata No. 203 situated in village Nonapar, Tappa Bhatni'' District Deoria which was recorded in the basic year in the name of respondent No. 3. The petitioner filed objection claiming himself to be cotenant to the extent of 1/3rd share on the ground so stated in the objection, which has been detailed in various subparagraphs of paragraph 2 of the writ petition. A pedigree was also given in respect to which there appears to be no dispute. The claim was mainly on the ground that the land was Seer of Birja Tiwari and thereafter as in the family in first cadre only Raghunath remained, according to the pedigree as mentioned, the petitioner has 1/3rd share. The claim of the petitioner was resisted mainly on the ground that Ram Cheez adopted Ram Chandrarespondent No. 3 by means of adoption deed dated 23121946 and therefore, in respect to rights of Ram Cheez, respondent No. 3 is entitled to succeed and his name is rightly recorded in the basic year. Parties adduced oral and documentary evidence in support of their respective cases. The Consolidation Officer by its judgment dated 2491980 accepted the claim of petitioner and accepted his 1/3rd share. Appeal was filed by respondent No. 3. The petitioner also filed an appeal, apparently under some misconception. Appeal is claimed to have been decided in expane manner without adequate opportunity to the petitioner and therefore, when the appeal was allowed by judgment dated 2031989, petitioner filed restoration application but thereafter as it was not being properly attended, he filed revision before the Deputy Director of Consolidation who dismissed the revision by its judgment dated 14121990 and thus judgment of the Revisional Court and that of the appellate authority are under challenge.

Submission of learned Counsel for the petitioner is that Ram Chandra was never adopted by Ram Cheez and adoption deed so relied upon is a farzi document. Neither its execution is proved nor any ceremony about giving and taking is proved and in fact from the own conduct of respondent No. 3 besides various circumstances and documents on record, respondent No. 3 has been proved to be throughout son of Sahadeo. It is submitted that Sahadeo never signed the alleged deed and in fact, in all documents. Ram Chandra is shown to be the son of Sahadeo. It is further submitted that Ram Cheez executed gift deed in favour of all three brothers namely Sahadeo, Jayanti and Ram Vrat and in Khasra extract, petitioner''s name is shown to be in possession in the remarks column and therefore, on all these facts, the Consolidation Officer has rightly accepted the petitioner''s claim but the appellate authority and the Revisional Court taking a perverse view in the matter has negatived petitioner''s claim. The submission is that as voluminous evidence as referred by the Consolidation Officer has not been noticed by the Appellate Court and the Revisional Court, the matter required a fresh consideration by Revisional Court who is said to be the last Court of fact. Learned Counsel for the petitioner in support of his submission that the proof of ceremony of giving and taking in the adoption deed is necessary, referred to the decision of the Apex Court given in the case of Lakshaman Singh Kothari v. Smt. Rup Kunwar, AIR 1961 SC 1378, the decision given in the case of Nilima Mukherjee v. Kama Shusan Ghosh, 2002(1) JCLR 442 (SC) : 2001 (Suppl.) RD 536 : 2001 (44) ALR 812. The provisions of Hindu Law was also referred.

In response to the aforesaid, submission of learned Counsel for the respondent is that besides proof of adoption deed, as the deed is twenty year old, it is not to be further proved as there is presumption in law about its validity. Submission is that the adoption deed has never been challenged in the competent Court and therefore, Courts below have rightly maintained the basic year entry in the name of respondent No. 3. It is further submitted that as the petitioner legitimately cannot claim any right in the land and as, he has no locus stand in the matter, his objection being not maintainable, if the Courts below have repelled the petitioner''s claim, then there can be no wrong in it. In support of the aforesaid submission that if the deed is more than twenty year old, no further proof is required, reliance has been placed on a decision given in the case of Bhola Chaubey v. Man Matun Chaubey, 1964 ALJ 749, the judgment of the Apex Court given in the case of Smt. Ramti Devi v. Union of India, 1996 RD 80. In support of submission that the objection has to be by person interested and therefore, on the objection of petitioner, the name of respondents cannot be ordered to be deleted, reliance has been placed on the decision given in Kanhaiya Lal v. Deputy Director of Consolidation, 1974 ALJ 552.

In view of aforesaid, this Court has examined the matter in the light of materials as has been placed on record.

Besides the controversy that whether the adoption deed being twenty year old, no further proof was required and document was to be accepted as it is, this Court has to consider various other facts and circumstances besides voluminous evidence as was available before the Courts below and as has been placed before1 this Court also. Petitioner has brought on record bulk of documentary evidence in the shape of school record, Khasra extracts and documents relating to proceedings of earlier cases. In all the school record, respondent No. 3 is shown to be the son of Sahadeo. In the Transfer Certificate, School Leaving Certificate, admission documents and in the declaration in the University, respondent No. 3 was shown to be recorded as son of Sahadeo. The adoption deed is said to be dated 13121946 but thereafter when for the first time, respondent No. 3 was admitted in school, form was filed by Sahadeo himself and Sahadeo was shown to be father of Ram Chandra. There is a mention in the documents so filed by petitioner that college staff asked the signatory on the form namely Sahadeo about parentage upon which, a declaration was given that Ram Chandra is the son of Sahadeo. In all Khasra extracts, Ram Chandra is shown to be the son of Sahadeo. There are several money order receipts from which, it is clear that the petitioner has been sending money to Sahadeo who happened to be elder brother. In Khasra extracts, petitioner is shown to be in possession as ''marfat'' to Sahadeo. The adoption deed is not signed by Sahadeo who is said to have given his son in adoption to Ram Cheez. The Consolidation Officer by referring these factors in a precise manner, gave a clear finding that the name of Ram Chandra alone came in the papers without any reference to any amaldaramad in 1354 Fasli. Beeran Tiwari and Thag Tiwari the marginal witnesses of the adoption deed have not been examined. In all the school papers, revenue papers throughout Ram Chandra is shown to be son of Sahadeo. For the first time when Ram Chandra was admitted in School which was after the alleged adoption deed, he was shown to be son of Sahadeo. At no point of time, till the last Ram Chandra ever tried to get his parentage corrected as adopted son of Ram Cheez. In his service book also, he is shown to be son of Sahadeo. Oral evidence is contradictory in respect to are ceremony of giving and taking. It is on all these findings, genuineness of deed was rejected by the Consolidation Officer and the petitioner was accepted to be cotenant with the respondents alongwith his legitimate share according to the pedigree. The appellate authority and the Revisional Court mainly on the ground that deed is twenty year old and it has not been cancelled in any competent Court have negatived the petitioner''s claim and have reversed the judgment of the Consolidation Officer. The Deputy Director of Consolidation appears to have made wrong observation by saying that the land was throughout recorded in the name of Bikkan and thereafter Ram Cheez whereas the record placed before this Court states otherwise. A further wrong finding was given that Ram Chandra is entered as adopted son of Ram Cheez in the record which is not so. There is a further wrong finding that in no document, the petitioner has been shown to be in possession whereas Khasra extracts have been filed to show his name in possession as ''marfat''. The Deputy Director of Consolidation has concluded by saying that in any view of the matter, entry of Ram Chandra showing his long possession, confers independent rights on him which appears to be totally misconceived as it was not the case of even respondent and on the other hand, all three were shown to be in pop session in the shape of ''marfat'' entry. The appellate authority in a very cryptic manner only by giving emphasis about the document being twenty year old, allowed the appeal and the Revisional Court by recording various findings on the question of fact as noticed above, which apparently do not born out from the record has dismissed the revision. In view of the aforesaid discussion, it is clear that besides adoption deed, own conduct of the respondent No. 3 and his father throughout as is apparent from voluminous evidence was liable to be taken note of by Appellate Court and the Revisional Court. By adoption, mode of succession stands changed and therefore, that is to be accepted with all care. Even in presence of adoption deed, ceremony of giving and taking as stated in the principle of Hindu Law as has been noticed by the Apex Court in the case of Lakshman Singh "(supra) has to be kept in mind. Few observations as are contained in the judgment of the Apex Court will be useful to be quoted here;

"That a formal ceremony of giving and taking is essential to validate the adoption has been emphasized by the Judicial Committee again in Krishna Rao v. Sundara Siva Rao. 58 llnd App 148:1931 PC 109."

Further observation as has been made by the Apex Court in paras9 and 10 will be useful to be referred at this place;

Para9 : Strong reliance is placed by learned Counsel for the appellant on the decision of the Judicial Committee in Biradhmal v. Prabhabhati, AIR 1939 PC 152. There a widow executed a deed of adoption whereby she purported to have adopted on to her deceased husband a boy. The SubRegistrar before whom the document was registered, put to the boy''s natural father and to the widow questions whether they had executed the deed. The boy was also present at that time. The Judicial Committee held that, under the said circumstances, mere was proof of giving and taking. The question posed by the Privy Council was staled thus: "The sole issue discussed before their Lordships was the question of fact whether on 30th June, 1924, at about 6 p.m. when the adoption deed was being registered the boy was present and was given by Bhanwarmal and taken by the widow" The question so posed was answered thus at p. 155

"...........Their Lordships think that the evidence that the boy was present at the time when the subregistrar put to his father and to the widow the questions whether they had executed the deed is sufficient to prove a giving and taking". This sentence is rather laconic and may lend support to the argument that mere putting questions by the subregistrar would amount to giving and taking of the adoptive boy'' but the subsequent discussion makes it clear that the Privy Council had not laid down any such wide proposition. Their Lordships proceeded to observe:

"Even if the suggestion be accepted that the auspicious day ended at noon on the 30th and that the deed was executed before noon and before the boy arrived at Ajmer, it seems quite probable that the registration proceedings which were arranged for 6 p.m. would be regarded as a suitable occasion for carrying out the very simple ceremony that was necessary. �These observations indicate that on the material placed before the Privy Council it is not necessary to say that we would come to the same conclusion on the same material'' it held that the was giving and taking of the boy at about 6 p.m. when the judicial committee, in our view, did not intend to depart from the well recognized doctrine of Hindu Law that there should be a ceremony of giving and taking to validate an adoption.

Para10 : The law may be briefly stated thus : Under the Hindu Law, whether among the regenerate caste or among Sudras, there cannot be a valid adoption unless the adoptive boy is transferred from one family to another and that can be done only by the ceremony of giving and taking. The object of the corporeal giving and receiving in adoption is obviously to secure due publicity. To achieve this object, it is essential to have a formal ceremony. No particular form is prescribed for the ceremony, but the law required that the natural parent shall hand over the adoptive boy and the adoptive parent shall receive him. The nature of the ceremony may vary depending upon the circumstances of the case. But a ceremony there shall be part of the exigencies of the situation arising out of diverse circumstances necessitated to the introduction of the doctrine of delegation and therefore, the parents, after exercising their volition to give and take the boy in adoption, may both or either of them delegate the physical act of handing over the boy or receiving him, as the case may be, to a third party."

Here is the case where no evidence has been referred by Appellate Court and Revisional Court so as to record a finding that at the time of execution of adoption deed either the boy was present or there was any kind of consent and, the ceremony and in fact Sahadeo father of Ram Chandra never signed that deed and thus the inference of giving of boy in adoption appears to be based just on the basis of presumption in respect to the deed being twenty year old, in respect of which argument from the petitioner''s side is that a suit was filed by petitioner under Section 229B of U.P.Z.A. & L.R. Act against the respondents claiming his 1/3rd share which was ultimately abated. Thus, the factum of filing of suit its effect, coupled with the fact that earlier Zamiridar also filed suit under Section 180 of U.P. Tenancy Act, impleading all the three namely Sahadeo, Jayanti and Ram Vrat is to be taken note and analysis of all these aspects can also be relevant. Sahadeo is said to be Karta of family and adoption deed is said to have been got prepared just few months before death of Ram Cheez. These are various aspects which requires a detailed probe/scrutiny on full fledged assessment of voluminous evidence as has been filed before the Courts below which have been placed before this Court also and thus, this Court is of the view that this lengthy exercise which has not been done by the Revisional Court may not be justified straightway by this Court. The judgment of the appellate authority and the Revisional Court are of reversal but on their perusal, it is clear that detail reasons given by the Consolidation Officer has not been met and reversed and thus, the judgment of the Revisional Court is to be interfered on this score also.

For the reasons recorded above, this petition succeeds and is allowed. The impugned orders of Revisional Court and that of the appellate authority 1412 1990 and 2031989 (Annexures 5 and 3) respectively are hereby quashed. The matter is sent back to the concerned Revisional Court to attend the revision afresh and decide the same, in accordance with law after giving adequate opportunity of hearing to all the parties preferably within a period of three months from the date nf receipt of a certified copy of this order, without allowing any unwarranted adjournment to either of them unless it is required for very compelling reason.