RSA No.1089 of 2010(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1089 of 2010(O&M) Date of decision: 16.3.2010 Raj Singh alias Ran Singh ......Appellant(s) Versus Smt. Phoolpati and another ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Roopak Bansal, Advocate for the appellant. Rakesh Kumar Garg, J. (Oral) By way of this appeal, the appellant (defendant No.1, in the suit) has challenged the judgment and decree of the Lower Appellate Court whereby suit of the plaintiff-respondent for actual possession of the suit land as co-sharer with defendant/respondent No.2 has been decreed. As per the averments made in the suit, the land in dispute was owned and possessed by Heera father of the respondents who died in the month of August 2005 and the respondents (plaintiff and defendant No.2 respectively) being daughters of Heera i.e. Class-I heirs succeeded to his estate. When the plaintiff (i.e. Respondent No.1) went to Patwari she came to know that the appellant(defendant No.1) had got the Civil Court decree passed in his favour on 6.6.1995 from Heera claiming himself as member of Hindu Coparcenary property being his adopted son. It was averred that the aforesaid judgment and decree dated 6.6.1995 passed in Civil Suit No.330 of 1995 was illegal, null and void on the ground that the appellant was not the adopted son of Heera and was not having any pre-existing right in the suit land left behind by Heera. The plaintiff also asserted that the suit in which consent decree was passed, was filed on 31.3.1995 whereas the adoption deed was got registered on 4.4.1995 and the RSA No.1089 of 2010(O&M) 2 aforesaid decree was obtained by the appellant on the basis of wrong facts. It was also asserted that the alleged decree was of no effect, being not registered as the immovable property in dispute was of more than the value of Rs.100/-. It was further averred that the appellant was requested to admit the claim of the respondents as owners of the suit land but he remained adamant. Hence this suit. Upon notice, the appellant filed written statement raising various preliminary objections. It was asserted that deceased Heera had no son and the appellant being son of his real sister, was adopted by him with the consent of his wife in the year 1982 after completing all the ceremonies of adoption. Since the time of adoption, the appellant served deceased Heera and he had been left with no relation with his original family The adoption ceremonies were completed orally in the presence of village gathering. Subsequently, on 4.4.1995, Heera with the consent of his wife got executed the adoption deed in the presence of the witnesses. It was further averred that Heera was unable to manage and cultivate the suit land and in a family settlement that took place in the month of December, 1994, handed over the ownership and possession of the suit land to the appellant. The aforesaid family settlement cum oral partition was recognized by Heera in Civil Suit No.330 of 1995 decided on 6.6.1995, by admitting the contents of the plaint in that suit in favour of the appellant with his free consent. On the basis of the said judgment and decree, mutation was also sanctioned in the name of the appellant concerning the suit land. The respondents being married daughters of Heera were having no right, title or interest in the suit land. The appellant also relied upon a Will dated 17.11.1994 executed by Heera in his favour. All other averments were denied and dismissal of the suit was prayed for. After considering the evidence on record and hearing learned counsel for the parties, the suit of the plaintiff-respondent was dismissed RSA No.1089 of 2010(O&M) 3 vide impugned judgment and decree dated 25.11.2009 passed by the trial Court. Feeling aggrieved with the impugned judgment and decree passed by the trial Court, plaintiff-respondent No.1 filed an appeal before the Lower Appellate Court which was accepted vide impugned judgment and decree dated 3.3.2010. On appreciation of the evidence, the Lower Appellate Court held that on coming into being of the Hindu Adoptions and Maintenance Act, 1956, the appellant could not be validly adopted by Heera deceased and further that the appellant had not shown any custom or usage applicable to the parties which permitted Heera deceased to adopt the appellant at the age of 27 years. A finding was also recorded to the effect that the appellant had not brought any evidence on record to prove the fact that prior to 1994, he was ever recorded as adopted son of Heera deceased in any record. The Lower Appellate Court also observed that even in the plaint, (EX.D2) of civil suit No.330 of 1995, it was pleaded by the appellant that he was adopted in May, 1994 and the said plaint was filed on 31.3.1995 and the adoption deed (Ex.D1) was prepared on 4.4.1995. The Will dated 17.11.1994 propounded by the appellant in his favour was also not accepted. The Lower Appellate Court found that the appellant got judgment and decree dated 6.6.1995 passed in his favour by misleading and playing fraud upon the Court and the same does not confer any right, title or interest in respect of the suit property upon him. The Lower Appellate Court also held that since the appellant was not proved to be the adopted son of Heera, he had no pre-existing rights in the suit property which were created for the first time vide impugned decree dated 6.6.1995 and therefore, the aforesaid decree was required to be registered in accordance with the provisions of the Registration Act. Since the impugned decree is unregistered one, the same does not confer any right, RSA No.1089 of 2010(O&M) 4 title or interest in the suit land upon the appellant. Still not satisfied, the appellant has filed the instant appeal challenging the judgment and decree of the Lower Appellate Court. Learned counsel appearing on behalf of the appellant contended that even if adoption was not proved in favour of the appellant, the decree in question was not required to be compulsorily registered, as the appellant was having a pre-existing right in the property in dispute. On the basis of the aforesaid argument, learned counsel for the appellant submitted that the finding of the Lower Appellate Court that the decree in question requires registration as adoption in favour of the appellant was not proved, is erroneous and sought to raise the following substantial question of law allegedly arising out of this appeal: “Whether the registration of the consent decree in question was essential?” I have heard learned counsel for the appellant. The argument raised by the learned counsel for the appellant is without any force. There is nothing on record on the basis of which it can be held that the appellant who was a stranger was having any pre-existing right in the suit property. Learned counsel for the appellant was unable to convince this Court as to when his adoption by Heera was not proved on record, as to how he had any pre-existing right in the suit property in the presence of respondents who are admittedly Class-I heirs of deceased Heera in the absence of his rights being adopted son. In fact the rights of the appellant were created in the property for the first time vide impugned decree dated 6.6.1995. Moreover, the aforesaid decree was also passed on the basis of the averments in the plaint filed by the appellant alleging therein that he became the member of Joint Hindu Family of deceased Heera by virtue of his adoption and in the month of December 1994 and oral family settlement cum partition took place between the appellant and RSA No.1089 of 2010(O&M) 5 Heera wherein the suit property was given to him. Thus, the very basis for passing the impugned decree dated 6.6.1995 in favour of the appellant was the claim of the appellant having a right in the Joint Hindu Family property of Heera being adopted son and in the absence of this right, even the consent decree was not sustainable. Faced with this situation, learned counsel for the appellant relied upon a judgment of the Hon'ble Supreme Court in Ram Charan Das v. Girja Nandini Devi and others 1966 AIR SC 323, contending that the word 'family' in the context is not to be understood in a narrow sense of being a group of persons who are recognized in law as having a right of succession or having a claim to a share in the property in dispute and all that is necessary to show is that the parties are related to each other in some way and have a possible claim to the property or a claim or even a semblance of a claim on some other ground and the same can be termed as family settlement. There is no dispute with the proposition of law as settled in the judgment of the Apex Court as aforesaid. However, the aforesaid observations of the Hon'ble Supreme Court were altogether in a different context and the facts and circumstances because in that case, to put an end to the litigation, a compromise was reached between all the parties who were relations and who were having the same kind of claim over the property in dispute and the same was acted upon whereas in the present case, the appellant cannot have any claim to the property in dispute in the presence of respondents being Class-I heirs. Not only this, the aforesaid judgment and decree has been held to be obtained at the back of the respondents without impleading them as party and on the basis of wrong facts. In view of the aforesaid facts, the argument raised by the learned counsel for the appellant is without any force. RSA No.1089 of 2010(O&M) 6 No substantial question of law arises in this appeal. Dismissed. March 16, 2010 (RAKESH KUMAR GARG) ps JUDGE