Vedprakash (Died) vs Sukhnandan

This first appeal has been filed by the appellants/plaintiffs, under Section 96 of the Civil Procedure Code, 1908 (henceforth, referred to as ‘CPC’), challenging the judgment and decree dated 11-7-2023 passed by the 3rd Upper District Judge, Bilaspur in Civil Suit No. (A)126/2015, whereby learned trial  Court   has partly allowed the civil  suit  filed  by  the appellants/plaintiffs and declared that plaintiff/his  LRs and defendants No. 1 to 5 and 8 are co-owner and having joint possession over the suit land.    (hereinafter, parties would be referred as per their status shown in the plaint.)

At  the  outset,  for  convenience,  family  tree  of  the parties, as narrated by learned counsel for the appellant, is given below :-

Facts of the case, in brief, are that, original plaintiff Ved Prasad filed instant civil suit for declaration of title and permanent injunction pleading inter alia that, part of land area 2.24 acre of Khasra No. 269, situated at village Saida, Revenue Circle, Sakri, Tahsil Takhatpur, Distt. Bilaspur was purchased by Natthu, who was father of plaintiff late Ved Prasad and Devi Prasad (father of defendants), through a registered sale deed from one Ghanshyam Prasad on 5-2-1973, thereafter, the above land was mutated  as Khasra No. 269/1 area 2.24 acre in the name of Natthu.  Thus, it is self acquired property of Natthu. Natthu died on 26-4-1991, since then, plaintiff is in possession of the suit land as owner of the same. Out of 2.24 acre of Khasra No. 269/1, 1.30 acre has been acquired by government, hence 0.94 acre of land is remaining, which has been referred to as ‘suit land’ in instant case.

3.1 Sanwaldas and his wife Sukhmatbai were issueless hence, they had adopted Devi Prasad (son of Natthu) as their son, when he was of the age of 4 years, thereafter, he used to reside with them. Devi Prasad was treated as their son by the society members also. After death of Sanwaldas, his lands were mutated in name of Devi Prasad as his son. He also sold land of Sanwaldas mentioning himself his son in various sale deeds. Thus, after aforesaid adoption, Devi Prasad had no rights in the property of his natural father Natthu, when Natthu died, then he got mutated his name in the revenue record of suit land along with Ved Prasad. Whereas suit land was self acquired property of Natthu, therefore, Devi Prasad has no right on it. It is further pleaded that, after death of Devi Prasad, defendants also got mutated their names in the revenue record of suit land, and taking undue advantage of the same in the year 2015, defendant No. 1 to 5 were trying to sell the suit land to defendant No. 6 Vijay Kumar for sale consideration of Rs. 22,40,000/- saying that it is their land. On this count, when plaintiff contacted to Halka Patwari, then he came to know that after death of Natthu, Devi Prasad has got entered his name along with original plaintiff Ved Prasad in the revenue record and after death of Devi Prasad, his LRs have got entered their names in revenue record of the suit land. Whereas since Devi Prasad was adopted son of Sanwaldas and Sukhmatbai, therefore, after that adoption, he did not remain a son of Natthu and his wife and also has no right on the property of Natthu (natural father). But, taking undue advantage of illegal mutation, defendants No. 1 to 5 and 8 are trying to sell suit land. Therefore, original plaintiff Ved Prasad filed civil suit for declaration of his sole title over the suit land and permanent injunction against defendants.

The defendants No. 1 to 6 and 8 have filed their written statement along with counter claim, pleading inter alia that, Devi Prasad was never adopted by Sanwaldas and his wife Sukhmatbai, rather, since they were issueless, hence they had given some lands to their father Devi Prasad. After death of Natthu, suit land was mutated in the name of his sons Devi Prasad and Ved Prasad and defendants were in possession of the same. After death of Devi Prasad, name of defendants have been mutated but, earlier no objection was made by plaintiff, but when defendants sold the suit land, then plaintiff asked for money from them and when it was not given, therefore, instant suit has been filed. It has been further pleaded by the defendant that, plaintiff Ved Prasad was in service of MP State Electricity Board. He had obtained aforesaid job in the name of his elder brother Devi Prasad. In this regard, criminal case of cheating was also registered against him, which was disposed of on the basis of settlement. It has been further pleaded that, Devi Prasad (father of defendants) has died on 25-6-2000 at Katni, despite that, plaintiff was working till his death in the year 2021 in the name of Devi Prasad and even after his death, wife of Ved Prasad (plaintiff) is getting family pension as wife of Devi Prasad. The defendants by filing counter claim have prayed that, LRs of late Devi Prasad be declared sole owner of suit land, they are having right to sell it and permanent injunction be also granted in their favour, against plaintiff.

The plaintiff also filed written statement in reply of the counter claim of defendant No. 1 to 6 and 8 denying the positive averments made against them, in the counter claim and prayed for dismissal of the same.

After framing the issues and recording evidence, learned trial Court partly allowed the suit filed by the plaintiff, holding therein that since suit land was purchased by Natthu, therefore, his both the sons Devi Prasad and Ved Prasad/their LRs are having joint ownership and possession over the suit land. In view of aforesaid facts, learned trial Court declined to grant other reliefs to the plaintiff and also rejected counter claim of defendants.

Learned counsel for the appellants/plaintiffs would submit that, it is not in dispute that, suit land was self-acquired property of Natthu. Natthu has two sons – Devi Prasad and Ved Prasad. He would further submit that, since Sanwaldas (wife Sukhmatbai) had no issue, therefore, they had adopted Devi Prasad, who is son of Natthu. Devi Prasad resided with Sanwaldas and his wife Sukhmatbai as their adopted son, which has also been proved by witnesses of plaintiff. In this regard, he also referred Sansodhan Panji (Ex. P-6) and sale deed Ex. P-11 dated 15-11-1989 executed by Devi Prasad , sale deed Ex. P-12 executed by Devi Prasad on 22-6-1976 and sale deed Ex. P-13 executed by Devi Prasad on 24-3-1995 as in all aforesaid documents, name of Sanwaldas has been mentioned as father of Devi Prasad and even in Ex. P-13, name of Sukhmatbai has been mentioned as his mother. He would further submit that, on strength of oral evidence, which is well supported by aforesaid documents, learned trial Court ought to have held that, Devi prasad (now dead) was adopted son of Sanwaldas and Sukhmatbai, but learned trial Court without properly appreciating the evidence available on record in this regard, has recorded negative finding on Issue No. 2.

7.1 It is also submitted that, being adopted son of Sanwaldas and Sukhmatbai, Devi Prasad had sold the property of Sanwandas vide Ex. P-11, Ex. P-12 and Ex. P-13, therefore, Devi Prasad or his LRs are not entitled to get any share or succession over the suit land, as, as per Section 12 of the Hindu Adoption and Maintenance Act, 1956 (in short, hereinafter referred to as “Act of 1956”), an adopted son lost his interest/right over the property of his natural father. Therefore, it is prayed that, decree, as prayed for, may be granted in favour of the plaintiffs.

Per contra, learned counsel appearing for respondents No. 1 to 5 and 8 would submit that, although Sanwaldas and Sukhmatbai were issueless, but they have never adopted Devi Prasad as their son. He would further submit that, to prove adoption, either custom prevailing in their society is to be proved that, by following such custom, adoption was made, or it be proved by adducing documentary evidence as well as oral evidence. But plaintiff has utterly failed to prove any such custom prevailing in their society or document to prove aforesaid fact. He would also submit that, Devi Prasad and Ved Prasad were real brother and Natthu and Kalabai were their natural father and mother, which also gets support from Dakhil Kharij register Ex. D-2 and Ex. D-3, wherein name of Natthu has been mentioned as father of Ved Prasad and Devi Prasad respectively, which highly hammer the plaint averment of plaintiff, in which, he has pleaded in para 2 that when Devi Prasad was 4 years old, he was adopted by Sanwaldas. He would further submit that, even in certified copy of Khasra Panchshala (Ex. P-16) of the year 2002-03 to 2005-06, name of Natthu has been mentioned as father of Devi Prasad and Ved Prasad. Therefore, learned trial Court has rightly held that, alleged adoption of Devi Prasad has not been proved by the plaintiff.

8.1 It is also submitted that Plaintiff Ved Prasad was not having requisite qualification which Devi Prasad was having, therefore, Ved Prasad obtained employment in erstwhile CSEB in the name of Devi Prasad. In this regard, Devi Prasad had made complaint against his brother Ved Prasad, to which, FIR for the offence under Section 420 of the Indian Penal Code and Criminal Case No. 312/2000 was also registered against him, which is evident from endorsement of his service book (Enclosure of Ex. P-17), although plaintiff Ved Prasad was acquitted from that case on ground of compromise. Aforesaid fact has been admitted by his wife Rajkumari (P.W. 1) in her cross-examination para 16 and 17 that, her husband Ved Prasad was working in CSEB in the name of Devi Prasad during his lifetime and after death of her husband Ved prasad, (who was working in the name of Devi Prasad), she is getting pension since 2021. She has also admitted that, death certificate of Devi Prasad (Ex. P-18) has been got prepared on the basis of false affidavit executed by plaintiff No. 1B Ravi (son of Ved Prasad) though original Devi Prasad had died on 25-6-2000.

8.2 It is lastly submitted by learned counsel for the defendants that, learned trial Court has declared co-owner to plaintiff/ his LRs and LRs of Devi Prasad (defendants) over the suit land, thereby learned trial Court has partly allowed the suit filed by plaintiff as well as right of LRs of late Devi Prasad, who were real brothers, therefore, the appeal is liable to be dismissed. In support of his contention, learned counsel for the defendants relied on the decision of Hon’ble Supreme Court in the case of M. Vanaja Vs. M. Sarla Devi (Dead) [AIR 2020 SC 1293].

Heard learned counsel for the parties and perused the material available on record, including record of the trial Court.

It is proved from pleading, oral and documentary evidence adduced by the parties i.e. certified copy of registered sale deed (Ex. P-2) dated 5-2-1973 and certified copy of Sansodhan Panji (Ex. P-3) that, suit land was purchased by Natthu, who was father of plaintiff Ved Prasad and his brother Devi Prasad (father of defendants No. 1 to 4 and 8) and after purchase of suit land by Natthu, it was mutated as Khasra No. 269/1 area 2.24 acre. As pleaded by plaintiff that, during pendency of instant suit, 1.30 acre of aforesaid land was acquired by Government of Chhattisgarh for Arpa-Bhainsajhar Beraj Project and therefore, suit land remained only 0.94 acre which has also not been controverted by defendants. It is also not in dispute that, Devi Prasad and Ved Prasad are real brothers and Natthu was their father. It is also not in dispute that, after death of Natthu i.e. on 26-4-1991 (as per death certificate Ex. P-9), suit land was mutated in the name of Devi Prasad and his brother plaintiff Ved Prasad, and after death of Devi Prasad, name of defendants No. 1 to 5 & 8 were entered into the revenue record vide Ex. P-14 along with plaintiff Ved Prasad, although it is alleged by plaintiff that, name of Devi Prasad and his LRs have been wrongly entered in revenue record, but they have not proved this fact in instant case.

The original plaintiff Ved Prasad (now dead) and his LRs are claiming their sole right on the suit land on the ground that, since when Devi Prasad was aged about 4 years, then, his father’s elder brother Sanwaldas and his wife Sukhmatbai, who were issueless had adopted Devi Prasad as per their rites and rituals and, therefore, right of Devi Prasad over property of his natural father Natthu was extinguished. They have further pleaded that, after aforesaid adoption, Devi Prasad was being treated by society members and all other persons as son of Sanwaldas and after death of Sanwaldas, his lands were mutated in the name of Devi Prasad, mentioning his father’s name as Sanwaldas and mother’s name Sukhmatbai.

To substantiate aforesaid fact, plaintiff has examined 3 witnesses Rajkumari (P.W. 1), who is wife of plaintiff Ved Prasad, Babulal (P.W. 2) who is cousin brother of plaintiff Ved Prasad, and Kanhaiya Khare (P.W. 3), who is also said to be relative of plaintiff. Rajkumari (P.W. 1) has stated in her deposition that, when age of Devi  Prasad was  4 years, then   Sanwaldas and his  wife Sukhmatbai, who were issueless, had adopted Devi Prasad as per prevailing rituals in their society, therefore, after death of Sanwaldas, land of Sanwaldas was mutated in the name of Devi Prasad as his son and Devi Prasad also sold land of Sanwaldas vide Ex. P-11, P-12 and P-13. She has admitted in cross-examination that, no document was reduced in writing with regard to alleged adoption of Devi Prasad.

The factum of adoption of Devi Prasad by Sanwaldas has also been supported by Babulal (P.W. 2) and Kanhaiya Khare (P.W. 3) in their examination-in-chief. But, as per copy of entry of Dakhil Kharij register of Government Primary School, Ghuru, Janpad Sabha Takhatpur, distt. Bilaspur (Ex. D-3), date of birth of Devi Prasad was 4-6-1952 and he was admitted in Class 1 on 8-7-1958 i.e. after crossing age of 6 years and as per deposition of aforesaid witnesses, Devi Prasad was adopted by Sanwaldas when he was aged about 4 years, thus Ex. D-3 Dakhil Kharij register was first document after alleged adoption of Devi Prasad but, in aforesaid document, name of his father has been mentioned as “Shri Natthu”. Had Sanwaldas adopted Devi Prasad, then in aforesaid Dakhil Kharij register, name of Sanwaldas would have been mentioned as father of Devi Prasad, but this very first document prepared after alleged adoption itself controvert the statement of aforesaid witnesses.

Ex. P-14 is certified copy of Sansodhan Panji and Ex. P-16 is certified copy of Khasra Panchshala of the year 2002-03 to 2005-06, these documents also shows that, after death of Natthu, suit land was mutated in the name of Devi Prasad along with plaintiff Ved Prasad showing their father’s name ‘Natthu’.

Sukhnandan (D.W. 1) is son of late Devi Prasad. He has admitted suggestion of learned counsel for plaintiff that, his father Devi Prasad died on 25-6-2000 and Ex. D-1 is his death certificate. This document also contains name of Natthu Suryavanshi as father of Devi Prasad Suryavanshi, thus, first document i.e. Dakhil Kharij register of Devi Prasad (Ex. D-3) and last document death certificate (Ex. D-1) both contain name of Natthu as father of Devi Prasad. Rajkumari (P.W. 1) has also admitted in her cross-examination para 19 that, Ex. D-1 is death certificate of her Jeth Devi Prasad Suryavanshi and Ex. P-18 is death certificate of her husband Ved Prasad, who died on 20-11-2021, but it was got prepared in the name of Devi Prasad.

Although, Rajkumari (P.W. 1), Babulal (P.W. 2) and Kanhaiya Khare (P.W. 3) have deposed that, Sanwaldas had adopted Devi Prasad when he was at the age of 4 years, as per Dakhil Kharij register (Ex. D-3), date of birth of Devi Prasad was 4-6-1952, thus as per their statement, he was adopted by Sanwaldas in the year about 1956-57, but as per their age mentioned in the deposition of aforesaid 3 witnesses of plaintiff, they were not even born in the year 1956-57. Whereas, as has been stated in preceding paragraph, that first document Dakhil Kharij register Ex. D-3 and last document Ex. D-1 death certificate of Devi Prasad, his father’s name has been mentioned as Natthu. Nothing has been brought on record that after admission in 1st class, father’s name of Devi Prasad was changed from Natthu to Sanwaldas, whereas as per Section 12 of Act, 1956, effect of adoption has been contemplated that “An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date, all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family”. But in the instant case, on the strength of aforesaid documents, it is found that, father’s name of Devi Prasad was neither changed in his school record, nor revenue record of suit land nor in his death certificate. Therefore, only on the basis of vague statement of plaintiff’s witnesses, it cannot be relied upon that, Devi Prasad was adopted by Sanwaldas and his wife Sukhmatbai as their son.

Although, as per Sanshodhan register Ex. P-6 name of Devi Prasad was mutated as son of Sanwaldas, but the aforesaid Sansodhan register also contained name of Natthu, which shows that, after death of Sanwaldas, his land was mutated in the name of Devi Prasad, Sukhmatbai and Natthu. Certified copy of sale deed Ex. P-11, P-12 and P-13 also show that, Devi Prasad had sold land of Sanwaldas mentioning his father’s name as Sanwaldas in aforesaid sale deeds, but since proof of ceremony of actual giving and taking in adoption has not been proved by the plaintiff, and Sukhnandan (D.W. 1) has stated in his deposition that, since Sanwaldas was issueless, therefore he had given his some land to his father Devi Prasad, therefore, without adducing any concrete evidence with regard to adoption of Devi Prasad by Sanwaldas, only on the basis of vague statement of plaintiff’s witnesses, it cannot be held proved that, Devi Prasad was adopted as son by Sanwaldas and Sukhmatbai.

In the case of Rahasa Pandiani v. Gokulananda Panda, [(1987) 2 SCC 338], which has also been quoted by learned trial Court in its judgment, Hon’ble Apex Court has held that “…. If there are any suspicious circumstances, just as the propounder of the will is obliged to dispel the cloud of suspicion, the burden is on one who claims to have been adopted to dispel the same beyond reasonable doubt. In the case of an adoption which is not supported by a registered document or any other evidence of a clinching nature if there exist suspicious circumstances, the same must be explained to the satisfaction of the conscience of the court by the party contending that there was such an adoption. Such is the position as an adoption would divert the normal and natural course of succession. Experience of life shows that just as there have been spurious claims about execution of a will, there have been spurious claims about adoption having taken place. And the court has therefore to be aware of the risk involved in upholding the claim of adoption if there are circumstances which arouse the suspicion of the court and the conscience of the court is not satisfied that the evidence preferred to support such an adoption is beyond reproach.”

In the case of M. Vanaja v. M. Sarla Devi, (supra), the appellant was claiming that she was adoptive daughter of respondents, but she failed to prove the ceremony of the actual giving and taking in adoption as also conditions as mentioned in Section 7 and 11 of the Act of 1956, therefore, Hon’ble Supreme Court considering the provisions of Act of 1956 has held that, “two important conditions as mentioned in Sections 7 and 11 of the 1956 Act are required to be proved, firstly, the consent of the wife before a male Hindu adopts a child and secondly, proof of the ceremony of actual giving and taking in adoption.” In the instant case also, neither any witness has been examined by the plaintiff with regard to prove ceremony of actual giving and taking in adoption of Devi Prasad, rather except some sale deeds, other documents i.e. Dakhil Kharij register (Ex. D-3), revenue record (Ex. P-14 and Ex. P-16) and death certificate (Ex. D-1) does not support deposition of plaintiff’s witnesses that Devi Prasad was adopted by Sanwaldas as his son, rather aforesaid documents show that father’s name of Devi Prasad was not changed in aforesaid documents from Natthu to Sanwaldas, which ought to have been changed, if Devi Prasad would have been adopted by Sanwaldas and his wife Sukhmatbai.

As per deposition of Rajkumari (P.W. 1 wife of plaintiff) and Sukhnandan (D.W. 1), who is son of Devi Prasad, plaintiff Ved Prasad had obtained employment in the then M.P. Electricity Board in the name of his elder brother Devi Prasad and as per memo of CSPDCL, Bilaspur, written to 3rd Upper District Judge, Bilaspur (Ex. P-17) and its enclosure (copy of relevant page of service book), Criminal Case bearing No. 312/2000 for the offence under Section 420 of IPC) was instituted against plaintiff Ved Prasad for obtaining employment (Paricharak Shreni – II) by cheating, from which, he was acquitted on the basis of settlement in Lok Adalat. Rajkumari (P.W. 1) herself has admitted in her cross-examination para 19 that, Ex. P-18 is death certificate of her husband Ved Prasad (Plaintiff) which has been prepared in the name of Devi Prasad. It is also found proved from her deposition and deposition of Sukhnandan (D.W. 1) that Devi Prasad died on 25-6-2000, despite that, plaintiff Ved Prasad was serving in the CG Electricity Board/CSPDCL in the name of his brother Devi Prasad and he (plaintiff Ved Prasad) died on 20-11-2021, thereafter his wife Rajkumari is getting family pension. Thus, such conduct of plaintiff himself discredit the deposition of his witnesses, who themselves are heresay witnesses. Although, Rajkumari (P.W. 1) has stated that, her husband Ved Prasad was known as Devi Prasad also, but this fact has not been pleaded by plaintiff in his plaint, rather it is proved from evidence that, due to obtaining job by false name, Ved Prasad was prosecuted in criminal case, further it does not appear to be natural that, younger brother is also known in the name of his elder brother. Therefore, statement of Rajkumari (P.W. 1) cannot be relied upon.

Learned trial Court has considered in detail the issue of alleged adoption of Devi Prasad by Sanwaldas and held that plaintiff has failed to prove that Devi Prasad was adopted by Sanwaldas as his son. In view of the aforesaid discussion, I do not find any infirmity or illegality in aforesaid finding recorded by learned trial Court. Thus since, plaintiff has failed to prove aforesaid fact, whereas it is not in dispute that Devi Prasad and Ved Prasad were real brothers and Natthu was their natural father and further, suit land was acquired by Natthu, therefore, being son of Natthu, Ved Prasad/his LRs and Devi Prasad/ his LRs are having joint title as co-owner over the suit land in accordance with share of their respective fathers. In view of their joint ownership over the suit land, declining granting other relief by learned trial Court is also found to be proper. Thus, finding recorded by learned trial Court does not suffer from any perversity or illegality warranting interference of this Court. Hence, judgment and decree passed by learned trial Court is upheld.

Accordingly, the instant appeal being devoid of merit deserves to be and is hereby dismissed.

A decree be drawn accordingly.

In view of above order, all the pending interlocutory applications, if any, also stands disposed of.