Sadhu Ram and Others vs Gobind and Another

Mahesh Grover, J.—This is plaintiffs'' second appeal directed against the judgment of the learned trial Court dated 19.9.2007 and that of the first Appellate Court dated 8.5.2009.

The plaintiffs filed a suit for declaration along with consequential relief of injunction and pleaded that one Smt. Sunehari widow of Bholar was the owner of the suit property and after her death the appellants had inherited the same. They pleaded that the suit land is now in possession of Jug Lal (now deceased and represented by respondents No. 1 to 5) for the last about 40 years as tenant on � Batai. Earlier he was tenant under Smt. Sunehari and after her death he had become owner of the suit property along with Raghu Nath (appellant No. 6). They further pleaded that despite this his tenancy rights over the suit land had not been affected and the possession had never been surrendered. They further pleaded that the respondents have got entered mutation in favour of Gobind, respondent No. 1 on the basis of fabricated adoption deed No. 179 dated 9.6.1998 which they pleaded to be null and void. They also pleaded that when respondent No. 1 was taken in adoption he was more than 15 years of age and consequently he could not have been taken in adoption and such an adoption is hit by the provisions of Hindu Adoption and Maintenance Act.

Respondent No. 1contested the suit and pleaded that Smt. Sunehari was owner of the suit land and as per the revenue record one Ram Singh, who had died long back, had been shown in cultivating possession of the suit land. Appellant No. 6 Raghu Nath in collusion and connivance with the revenue officials had got the khasra girdawri changed in his name in the year 2001. It was further pleaded that in the eventuality of the Court coming to the conclusion that Raghu Nath is in possession of the suit land then respondent No. 1 is entitled to a decree of possession. The succession of the appellants to the estate of Smt. Sunehari was denied and adoption in favour of Gobind was pleaded to be a valid act. It was further pleaded that respondent No. 1 used to reside with Smt.Sunehari and he was given and taken in adoption on 1.1.1998 regarding which an adoption deed was executed on 9.6.1998. It was further pleaded by respondent No. 1 that the appellants have pleaded tenancy rights over the suit land but they never paid Batai to Smt. Sunehari and therefore they reserve the right to file proceedings for recovery of rent from the appellants. Custom was also pleaded. It was also pleaded that respondent No. 1 was born on 4.8.1983 and was less than 15 years on the date of adoption. A counter claim was also filed with a prayer that mutation of the suit property be got sanctioned in favour of the respondent No. 1 and mutations sanctioned in favour of Chandu and Jug Lal are liable to be set aside.

Respondent No. 2 also filed separate written statement and denied the averments made in the plaint.

On the pleadings of the parties, following issues were framed:

Whether the plaintiffs are owners in possession of the suit land as alleged in the plaint?OPP

Whether the defendant No. 1 is adopted son of Smt. Sunehari and whether the adoption deed No. 179 dated 9.6.1998 is wrong, illegal and not binding on the rights of the plaintiffs as alleged?OPD

Whether plaintiffs are estopped by their own act and conduct from filing the present suit?OPD

Whether the suit is barred by law of limitation?OPD

Whether the plaintiffs have no cause of action and locus standi to file the present suit?OPD

Whether the suit is correctly valued for the purpose of court fee and jurisdiction?OPD

Whether the suit is bad on account of multifariousness?OPD

Whether the suit is bad for mis-joinder of necessary parties as alleged?OPD

Relief.

Both the Courts have returned a finding that adoption in favour of Gobind was valid and they dismissed the suit of the appellants which has resulted in filing of the instant regular second appeal wherein learned Counsel for the appellants has contended that respondent No. 1 Gobind being more than 15 years of age at the time of adoption was incapable of being given and taken in adoption. He contended that there is no recital in the adoption deed regarding custom and that the adoption ceremonies etc. have also not been proved. It is thus contended that the findings recorded by the Courts below are perverse.

I have heard the learned Counsel for the appellants and have perused the impugned judgments.

The appellants pleaded that respondent No. 1 was incapable of being given and taken in adoption as he was more than 15 years of age at the time of adoption. I am afraid such a contention cannot be accepted. Even though there is pleading that respondent No. 1 cannot be taken in adoption but the same has been specifically proved by the respondents. The appellants who raised such pleas were required to prove them but they failed to establish such a fact. This when compared with the evidence on record leads to an irresistible conclusion that respondent No. 1 had indeed been taken in adoption by Smt. Suneheri. It has come in evidence that she was residing with the respondents'' family and was issueless. The witnesses produced by the respondents have categorically given the details of the ceremonies which had taken place at the time of giving and taking of Gobind in adoption by Smt.Suneheri. The adoption deed is also registered which is duly proved in accordance with law. In view of this overwhelming evidence the plea of the appellants cannot be accepted. Reliance has been placed on Jai Singh v. Shakuntala 2002 (2) Latest Judicial Reports 581. There is indeed no doubt that presumption that adoption is valid is rebuttable but the appellants have failed to rebut such presumption. As observed earlier there was sufficient evidence to show that the ceremonies of adoption had taken place. The presumption of any document would always depend on the attending evidence which comes in support of a document. It can never be said as a general rule that every document which does not contain a particular recital be deemed to be invalid because such a recital is not there. In the absence of any evidence in favour of the appellants, I am of the opinion that there is no infirmity in the findings recorded by the Courts below. Consequently, the appeal is without any merit and is dismissed.