R.S.A.No. 1966 of 2010 (O&M) and 1 R.S.A.No. 4039 of 2009 (O&M) In the High Court of Punjab and Haryana at Chandigarh Date of decision: 30.5.2011 R.S.A.No. 1966 of 2010 (O&M) Satinder Kumar @ Satish Kumar ......Appellant Versus Mahavir and others .......Respondents R.S.A.No. 4039 of 2009 (O&M) Tirath Ram and others ......Appellants Versus Mahavir and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Sanjay Verma, Advocate, for the appellant in RSA No.1966 of 2010. Mr.B.S.Bedi, Advocate, for the appellant in RSA No.4039 of 2009. Mr.Avnish Mittal, Advocate for respondents No.1 to 4, 6 to 12 Mr.C.B.Goel, Advocate for respondent No.5. **** SABINA, J. Vide this judgment, RSA Nos.1966 of 2010 and 4039 of R.S.A.No. 1966 of 2010 (O&M) and 2 R.S.A.No. 4039 of 2009 (O&M) 2009 will be disposed of as these have arisen out of the same suit. The plaintiffs had filed the suit seeking declaration and permanent injunction. The case of the plaintiffs, in brief, was that they were owners of the land measuring 57 bigha 17 biswas. Kartari Devi, widow of Nathu Ran and mother of Som Dutt (since deceased) had inherited the suit property. After the death of her son Som Dutt, Kartari Devi gifted the abovesaid property to Chawli Devi vide registered gift deed dated 18.11.1941. Chawli Devi was half sister of Som Dutt. Plaintiffs and defendant No.2 claimed themselves to be the collaterals of Som Dutt in the fifth degree in civil suit No.4 of 1942 instituted on 10.1.1942 and decided on 25.5.1942. In the said suit, the gift deed dated 18.11.1941 was declared illegal, null and void and it was held that it would have no effect on the reversionary rights of the plaintiffs in the matter of succession and alienation. Chawli Devi had died issueless and the suit land reverted back to the plaintiffs. It was alleged by defendant No.2 that Kartari Devi had adopted him vide adoption deed dated 2.7.1984. Kartari Devi had no right, title or interest in the suit property and was not competent to adopt Satinder Kumar @ Satish Kumar. Pedigree table, as shown in para 1 of the plaint, is as under:- Kanwar Ji | | Sakag Ram Kashmiri | | Naraina Bhagwana | | Nathu = Kartari Devi (defd.No.1) _____________________ R.S.A.No. 1966 of 2010 (O&M) and 3 R.S.A.No. 4039 of 2009 (O&M) | | | | Ram Sarup (Plff.No.3) Gobind chhuni | (deceased) ______|_____________________________________ | | | | Som (since died) Sita Ram Suraj Bhan Paras Ram (plff.No.1) (plff.No.2) (plff.No.4) Defendant No.1, in his written statement, alleged that the answering defendant had life interest in the suit property. Execution of the gift deed dated 10.11.1941 by her was admitted. It was also admitted that the suit filed by the plaintiffs challenging the said gift deed was decreed. Adoption of Satinder Kumar @ Satish Kumar by her was denied. It was averred that the plaintiffs were not in possession of the suit land and rather the suit land was in possession of Tirath Ram. Defendant No.2, in his written statement, averred that he was the adopted son of defendant No.1. Kartari Devi had inherited the suit property after the death of her husband Nathu and son Som Dutt. The gift deed executed by her in favour of Chawli Devi had been set aside and now Kartari Devi had become owner of the suit property. After the death of Kartari Devi in the year 1989, answering defendant had become owner in possession of the suit property, being her adopted son. Defendant No.2 also filed a counter claim alleging that he was legally adopted son of Kartari Devi and could not be dis- possessed from the suit property. It was averred that the plaintiffs be directed to restore the possession of the suit property to answering defendant No.2. R.S.A.No. 1966 of 2010 (O&M) and 4 R.S.A.No. 4039 of 2009 (O&M) Plaintiffs No.1, 3 and 4, in reply to the counter claim submitted by defendant No.2, averred that defendant No.2 had never remained in possession of the suit land. The contentions in the counter claim were denied. Plaintiff No.2, in his written statement to the counter claim, averred that defendant No.1 had not adopted defendant No.2. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether alleged adoption of Satinder Kumar (defendant No.2) is invalid, illegal and he is not adopted son of Smt. Kartari Devi on the grounds as alleged in the plaint ? OPP 2. If adoption is proved, whether adopted can be treated qua herself only with regard to the property in question ? OPP 3. If issue No.1 and 2 proved, whether plaintiffs are entitled to injunction as prayed for ? OPP 4. Whether present suit is not maintainable ? OPD 5. Whether plaintiffs have no locus standi to file the present suit ?OPD 6. Whether plaintiffs are estopped by their own act and conduct from filing the present suit ? OPD 7. Whether present suit is barred by principle of resjudicata ? OPD R.S.A.No. 1966 of 2010 (O&M) and 5 R.S.A.No. 4039 of 2009 (O&M) 7(a) Whether defendant No.2 is entitled for possession as owner and permanent injunction over the suit land as prayed for in the counter claim ? OPD 8. Relief.” The trial Court decreed the suit of the plaintiffs vide judgment and decree dated 30.4.2005 to the extent that adoption of Satinder Kumar @ Satish Kumar was invalid, illegal and defendants were restrained from interfering in the possession of the plaintiffs. Counter claim filed by defendant No.2 was dismissed. Aggrieved by the said judgment and decree, legal representatives of defendant No.1 and defendant No.2 preferred two separate appeals and the same were dismissed vide judgment and decree dated 5.5.2009 passed by the District Judge. Hence, RSA No.4039 of 2009 has been filed by the legal representatives of defendant no.1 challenging the part of the decree, whereby the suit for permanent injunction filed by the plaintiffs was decreed. Defendant No.2 has filed RSA No.1966 of 2010 challenging the judgment and decree passed by the Courts below, whereby the adoption deed, Ex.D-1, was held to be illegal, null and void and the suit of the plaintiffs for permanent injunction was decreed. The first question that requires consideration is as to whether Satinder Kumar @ Satish Kumar had been adopted as a son by Kartari Devi. So far as defendant No.1 Kartari Devi is concerned, she had denied adoption of defendant No.2 Satinder Kumar @ Satish Kumar by her. Defendant No.2 placed reliance on adoption deed R.S.A.No. 1966 of 2010 (O&M) and 6 R.S.A.No. 4039 of 2009 (O&M) Ex.D-1 to substantiate his plea that he had been adopted by defendant No.1. However, defendant No.2 had failed to prove the due execution of the adoption deed. Defendant No.1 had failed to examine the scribe or any of the attesting witness to the adoption deed. Although the adoption deed Ex.D-1 is a registered document but since defendant No.1 had denied its execution, it was incumbent upon defendant No.2 to prove its due execution. The adoption deed Ex.D-1 is dated 18.6.1984 and was registered on 2.7.1984. Section 68 of the Indian Evidence Act, 1872 reads as under:- Proof of execution of document required by law to be attested.- If a document is required by law to be attested.it shall not be used as evidence until one attesting witness at least has been called for-the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: [Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908, unless its execution by the person by whom it purports to have been executed is specifically denied.] Thus, as per the above provision since executant had denied the execution of the adoption deed, it was necessary for defendant No.2 to examine an attesting witness in proof of the R.S.A.No. 1966 of 2010 (O&M) and 7 R.S.A.No. 4039 of 2009 (O&M) execution of the adoption deed. Defendant No.2 admitted in his cross-examination that at the time of his marriage, he was described as son of Shiv Ram. This also shows that defendant No.2 had not been describing himself as adopted son of Kartari Devi. Both the Courts below, after appreciating the evidence led by the parties on record, have given a finding of fact that defendant No.2 was not the adopted son of Kartari Devi. The said finding of fact calls for no interference by this Court. The next question that requires consideration is as to who was in possession of the suit property. Learned counsel for appellants Tirath Ram and Naresh Bala has submitted that Ram Sarup and others had filed a suit for declaration and possession qua the suit property. The said suit was dismissed by the trial Court and the judgment and decree passed by the trial Court have been upheld up to this Court. In these circumstances, the relief of permanent injunction could not have been granted to the plaintiffs. The fact that the suit filed by Ram Sarup and others seeking the relief of declaration and possession qua the suit property was dismissed, has not been denied by the counsel for the respondents. The substantial question of law that arises for consideration in the present case is as to whether the finding of the Courts below that the plaintiffs were in possession of the suit property is perverse. Admittedly, the suit bearing No.145 of 1998 instituted on 6.1.1990 by Ram Sarup and others against the present appellants for declaration that they had become owners of the suit property left by R.S.A.No. 1966 of 2010 (O&M) and 8 R.S.A.No. 4039 of 2009 (O&M) Kartari Devi and possession was dismissed by the trial Court vide judgment and decree dated 19.8.1999. The said judgment and decree have been upheld up to this Court. Moreover, the Courts below have held that Kartari Devi was absolute owner of the suit property and hence, the suit of the present plaintiff qua permanent injunction was liable to fail. Thus, the Courts below have erred in decreeing the suit of the plaintiffs for permanent injunction and the finding of the Courts below in this regard is perverse. The substantial question of law that arises in this case stands answered accordingly. Hence, RSA No.1966 of 2010 is dismissed and RSA No. 4039 of 2009 is allowed Consequently, the suit filed by the plaintiffs qua permanent injunction also stands dismissed. (SABINA) JUDGE May 30, 2011 anita