IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.995 of 2010 (O&M) Date of decision: 12th September, 2011 Smt. Kamlesh Thakur … Appellant Versus Sahib Singh … Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Gurinder Singh Punia, Advocate for the appellant. Mr. Arun K. Bakshi, Advocate for the respondent. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Present regular second appeal has been filed by defendant to the suit. Sahib Singh respondent-plaintiff had filed a suit for mandatory injunction praying that appellant-defendant be directed to hand over the vacant possession of the suit property, detail and description whereof was given in the head-note of the plaint to him, and further all belongings of the appellant-defendant be removed therefrom. It was pleaded in the suit that the respondent-plaintiff had purchased House No.192, Green Park (earlier known as the Partap Colony) Jalandhar measuring 10 Marlas 23 Square Feet vide a sale deed executed on 29th January, 1968 and registered on 30th January, 1968. What is material to be noticed is para No.3 of the plaint, which reads as under: “3. That the plaintiff is an old aged man of 89 years and is having his old aged wife Prem Kumari alive and have Regular Second Appeal No.995 of 2010 (O&M) one daughter namely Rano wife of Bahadur Singh Chibb and have been treating the defendant as her adopted daughter and has brought her up with the best of his ability and married her with Sh.Vijay Thakur. The plaintiff along with his wife have been residing in the property mentioned in the head note of the plaint along with the defendant earlier. The defendant actually was daughter of brother of the wife of the plaintiff and being earlier a nephew was brought in plaintiff family and was bred up and treated as an adopted daughter.” It was stated that appellant-defendant, who was being treated as an adopted daughter by the respondent-plaintiff, had misbehaved with him and she had not come upto the expectations of the respondent-plaintiff and had not returned the love and affection, rather the same was abused. It was also specifically pleaded that the respondent-plaintiff had earlier made a registered Will bearing No.481 dated 19th August, 1997 in favour of the appellant-defendant which vide a registered cancellation deed bearing No.291 dated 5th June, 2007 was cancelled and subsequently, a second registered Will bearing No.321 dated 13th June, 2007 was made by the respondent-plaintiff in favour of his wife namely Prem Kumari. A perusal of the plaint further reveals that the respondent-plaintiff and his wife Prem Kumari were also having a natural daughter namely Rano, who was married with one Bahadur Singh Chibb. Upon issuance of notice of the suit, appellant-defendant caused appearance and filed written statement, in para No.6 whereof she has stated that she was adopted by the plaintiff as his daughter about 20 years ago and that this fact is discernible from the ration card, 2 Regular Second Appeal No.995 of 2010 (O&M) voter card and other documents. She also raised a plea that she has become owner of the house in question by adverse possession. She also stated that the said house was given to her by way of family settlement. The trial Court, after completion of the pleadings, formulated following issues: “1. Whether plaintiff is entitled to mandatory injunction as prayed for? OPP 2. Whether the plaintiff is owner of the suit property? OPP 3. Whether the plaintiff is entitled to permanent injunction as prayed for? OPP 4. Whether the defendant is owner of the suit property by way of family settlement between the parties? OPD 5. Whether the defendant has become owner of the suit property by way of adverse possession? OPD 6. Whether the suit filed by the plaintiff is not maintainable? OPD 7. Whether plaintiff has no locus standi and cause of action to file the present suit? OPD 8. Whether the plaintiff has concealed the material facts from the Court? OPD 9. Whether the present suit is not properly valued for the purpose of Court fee? OPD 10. Relief.” The respondent-plaintiff himself appeared as PW-3. He also examined Jagdish Chander, Record Keeper as PW-1; Seeta Ram, Deed Writer as PW-2 and Devinder Singh Patwari as PW-4. The appellant- defendant herself appeared as DW-1. 3 Regular Second Appeal No.995 of 2010 (O&M) The trial Court decided issue No.2 in favour of the plaintiff by holding that it is not disputed that the plaintiff is owner of the suit property. While determining issue No.4 as to whether the defendant is owner of the suit property or not, the Court held that no right vested in the defendant by virtue of the Will dated 19th August, 1997 Ex.P3 as the testator during his lifetime has cancelled the same. The Court further held that no family settlement has been brought on record and hence, the same is not proved. Issue No.5 as to whether the defendant has become owner of the suit property by adverse possession was also decided in favour of the plaintiff and against the defendant. Issue No.1 was also decided in favour of the plaintiff and Court held him entitled to grant of mandatory injunction. The remaining issues were also decided in favour of the plaintiff and against the defendant. The relief of mandatory injunction was granted to the plaintiff and the defendant was directed to hand over vacant possession of the suit property as detailed and described in the head-note of the plaint. The findings returned by the trial Court were affirmed by the lower appellate Court. During the pendency of present regular second appeal, respondent-plaintiff has expired on 3rd July, 2010. It is not disputed by counsel for the parties that rights of the parties are to be determined on the day, the suit was filed. On that day, no right vested in the appellant- defendant by way of adverse possession or by pleading family settlement, which has not been proved. The respondent-plaintiff being testator had already cancelled the Will from which any right could flow to 4 Regular Second Appeal No.995 of 2010 (O&M) the appellant-defendant. Therefore, on the day the suit was filed, appellant-defendant was none but a licencee of the respondent-plaintiff. Therefore, the findings returned by both the courts below suffer from no infirmity and hence, no interference is warranted. During the pendency of this appeal, Civil Misc. No.12266-C of 2010 under Order XXII Rule 4 read with Section 151 CPC was filed by Prem Kumari and Rano Devi, wife and natural daughter of Sahib Singh respondent-plaintiff respectively, claiming themselves to be his legal representatives and prayed for being brought on record. Mr. Gurinder Singh Punia, Advocate appearing on behalf of the appellant-defendant, has relied upon cross-examination of Sahib Singh respondent-plaintiff PW-3, wherein he had stated as under: “When Kamlesh Thakur was adopted by us she was 2-1/2 years old. It is correct that defendant now is aged about 50 years. I adopted the defendant like a daughter. We also got married the defendant with Vijay Thakur. The function of the marriage was got done at village Kishanpura which is my another house. Kamlesh Thakur is residing in the property in question since 1968 with her family… … …” Mr.Punia, having read the above said lines, has stated that since the respondent-plaintiff had admitted the appellant-defendant to be an adopted daughter, she has become a co-sharer in the property along with Prem Kumari and Rano Devi. To controvert this submission, Mr. Arun K. Bakshi, Advocate for the respondent-plaintiff, has relied upon Section 11 of the Hindu Adoptions and Maintenance Act, 1956 to state that any adoption made by Sahib Singh respondent-plaintiff is against the provisions of law. It is 5 Regular Second Appeal No.995 of 2010 (O&M) stated that no adoption was made in view of the categoric averments made in the written statement and even if it is assumed that the adoption was made that is hit by the provisions of law. It is further stated that no ceremony of adoption has been proved or pleaded and furthermore, in cross-examination Sahib Singh plaintiff has clarified that he treated defendant as an adopted daughter. Admittedly, no issue as to whether the appellant-defendant was adopted or not, was formulated by the trial Court. Furthermore, Mr.Bakshi has stated that during his lifetime Sahib Singh respondent- plaintiff had made a Will dated 13th June, 2007 in favour of his wife namely Prem Kumari. By virtue of this Will, Prem Kumari alone has succeeded to the property. The validity of this Will has also not been determined by the courts below. A Coordinate Bench of this Court on 25th February, 2011 had brought Prem Kumari and Rano Devi on record as legal representatives of Sahib Singh respondent-plaintiff and it was observed that the question as to whether the appellant-defendant is an adopted daughter or not, will be decided at the time of final arguments. I have perused the record. There is admission that the appellant-defendant is not the real daughter of Sahib Singh respondent- plaintiff. As to whether she is an adopted daughter or not and the question regarding validity of the Will dated 13th June, 2007 is kept open to be decided in appropriate proceedings to be initiated at the behest of any party. However, so far as the present regular second appeal is concerned, since rights of the parties are to be determined on the day when the suit was filed, suffice it to say both the courts below have already returned a finding of fact to which no interference is warranted. Therefore, the judgments of the courts below suffer from no infirmity. 6 Regular Second Appeal No.995 of 2010 (O&M) Hence, the present appeal is hereby dismissed. [KANWALJIT SINGH AHLUWALIA] JUDGE September 12, 2011 rps 7