Vishwa Nath vs Vijay Kumar

L.N. Mittal, J.—This is second appeal by plaintiff Vishwa Nath who has been non-suited by both the courts below.

Plaintiff-appellant filed suit against his brother Vijay Kumar respondent as defendant No. 1 and their mother Kala Bai defendant No. 2 (since deceased and represented by respondent Vijay Kumar as her legal representative).

Suit house was admittedly owned by Panna Lal father of appellant and respondent. Case of the plaintiff-appellant is that on the death of Panna Lal, suit house was inherited in equal shares by plaintiff and both defendants in equal shares. Accordingly, plaintiff claimed 1/3rd share in the suit house. However, defendant No. 1 had suffered consent decree dated 20.2.1969 in suit No. 186 of 1969 in favour of defendant No. 2 declaring her to be exclusive owner of the suit house. Said decree has been challenged in the suit being illegal, null and void because plaintiff herein was not party thereto. Accordingly, the plaintiff sought relief of declaration and permanent injunction.

Defendants contested the suit and broadly denied the plaint averments. It was, however, admitted that Panna Lal was owner of the suit house. Defendants pleaded that plaintiff had been adopted by Mahadev Parshad and accordingly the plaintiff did not inherit any share in the suit house from Panna Lal. Consent decree dated 20.2.1969 was pleaded to be legal and valid. It was also alleged that defendant No. 2 executed Will in favour of defendant No. 1. Various other pleas were also raised.

Learned Additional Civil Judge (Senior Division), Sirsa vide judgment and decree dated 25.3.2002 dismissed the plaintiff''s suit. Both parties preferred first appeals against judgment and decree of the trial court. Plaintiff claimed relief that his suit be decreed whereas defendant No. 1 challenged findings of trial court on issues No. 4 to 9. Learned Additional District Judge, Sirsa vide common judgment and decrees dated 14.1.2004 dismissed both the first appeals. Feeling aggrieved, plaintiff has filed the instant second appeal.

I have heard learned counsel for the parties and perused the case file.

The only question that arises for adjudication in this second appeal is whether finding of the courts below that plaintiff had been adopted by Mahadev Parshad is justified or not. Answer to this question has to be in the affirmative. There is ample documentary evidence including admissions of the plaintiff himself to depict that he is adopted son of Mahadev Parshad who was maternal grand-father of the appellant and respondent. Plaintiff was depicted to be son of Mahadev Parshad in his matriculation certificate. Plaintiff joined Indian Air Force. Throughout in his service record, he himself depicted that he is son of Mahadev Parshad. Plaintiff also obtained loan from Oriental Bank of Commerce depicting himself to be son of Mahadev Parshad. Plaintiff was also listed as voter as son of Mahadev Parshad. All this documentary evidence spanning over four decades clearly depicts that the plaintiff is adopted son of Mahadev Parshad. There is practically no documentary evidence to the contrary.

Counsel for the appellant contended that in school record, the plaintiff was depicted to be son of Panna Lal till 9th standard. However, possibly the plaintiff might have been adopted by Mahadev Parshad after plaintiff''s admission in school and therefore, plaintiff was depicted to be son of Mahadev Parshad in matriculation certificate which is authentic document. Even thereafter, the plaintiff himself continued to depict himself to be son of Mahadev Parshad in his service record and other transactions. Consequently, the fact that plaintiff was recorded to be son of Panna Lal till 9th standard in the school would not disprove that he had not been adopted by Mahadev Parshad.

Counsel for the appellant also contended that in voter card, the plaintiff was depicted to be son of Panna Lal. The contention is contrary to record. Defendants examined Balwant Singh DW3, an election official. He stated from the record that plaintiff was listed as voter as son of Mahadev Parshad. He proved voters'' list Ex. D3 in this regard.

Counsel for the appellant contended that entry of birth of son of plaintiff was made in record depicting the plaintiff to be son of Panna Lal. However, in view of other overwhelming documentary evidence, this entry cannot be attached any weight because at that late stage, out of greed, the plaintiff might have started depicting himself to be son of Panna Lal to claim share in the suit property. However, for over four decades, the plaintiff was continuously representing himself to be son of Mahadev Parshad.

In view of the aforesaid, concurrent finding of both the courts below that the plaintiff had been adopted by Mahadev Parshad is fully justified by the evidence on record. The said finding is not shown to be perverse or illegal in any manner nor based on misappreciation or misreading of evidence so as to call for interference in second appeal. On the contrary, the said finding is the only reasonable finding that can be arrived on the basis of the evidence on record. No question of law much less substantial question of law arises for adjudication in this second appeal. The appeal is meritless and is therefore, dismissed.