Regular Second Appeal No. 62 of 2011 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 62 of 2011 Date of decision : January 07, 2011 Ashwani Kumar ....Appellant versus Anil Kumar and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Vikram Punia, Advocate for the appellant L.N. Mittal, J. (Oral) Defendant no. 1 Ashwani Kumar who claims himself to be adopted son of original plaintiff Khem Chand since deceased, has filed the instant second appeal having remained unsuccessful in both the courts below. Dr. Khem Chand plaintiff filed suit against appellant Ashwani Kumar defendant no. 1, his wife Manju Rani and Raj Pal defendants no. 2 and 3 alleging that plaintiff purchased suit property vide sale deed dated 6.9.1974. It was old kutcha house. Plaintiff demolished it and raised double storied building and also added another floor later on. The plaintiff started running his clinic in the suit property along with X-ray machine. Defendant no. 1 as a newly born child was abandoned in the plaintiff's Regular Second Appeal No. 62 of 2011 -2- hospital by his mother in July, 1968. The plaintiff taking pity brought up defendant no. 1 and got him educated upto Matriculation. Plaintiff later on kept defendant no. 1 as Attendant in his hospital. Plaintiff treated defendant no. 1 just like his son and also got him married with defendant no. 2. Defendant no. 3 was employed as Helper in the hospital by the plaintiff. On account of accident of the plaintiff in February, 1996 and consequent long hospitalization and on account of subsequent severe heart attack in November, 1996 whereupon plaintiff remained hospitalized, he was advised bed rest and therefore, his hospital in the suit property remained closed for about six years. The defendants were staying in the suit property as licencees of the plaintiff with his permission. However, when the plaintiff asked defendants to vacate the suit property, after putting of the matter, the defendants finally refused to vacate the same. Licence of the defendant was terminated orally as well as by serving notice dated 13.11.2003. The plaintiff accordingly filed suit for mandatory injunction directing the defendants to vacate and hand over the vacant possession of the suit property to the plaintiff who also claimed mesne profits. Defendants controverted plaint allegations. It was denied that plaintiff is owner or in possession of the suit property. It was also denied that plaintiff was running clinic in the suit property along with X-ray machine. It was alleged that plaintiff was having only three daughters and no male issue and therefore, the plaintiff adopted defendant no. 1 from Anath Ashram, Delhi in the year 1968. It was, thus, claimed that defendant no. 1 is adopted son of the plaintiff. Plaintiff's version that defendant no. 1 was abandoned in plaintiff's hospital was controverted. It was pleaded that Regular Second Appeal No. 62 of 2011 -3- in family settlement, defendant no. 1 became owner of the suit property. Hospital therein is being run by defendants no. 1 and 2. Defendant no. 3 is their employee. Defendants have employed doctor to run the hospital. It was admitted that defendant no. 1 was got educated by the plaintiff upto Matriculation certificate and was also got married with defendant no. 2. Various other pleas were also raised. Learned Civil Judge (Senior Division), Hisar vide judgment and decree dated 23.11.2007 decreed the plaintiff's suit. First appeal preferred by defendant no. 1 has been dismissed by learned Additional District Judge, Hisar vide judgment and decree dated 22.11.2010. Feeling aggrieved, defendant no. 1 has filed the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Even learned counsel for the appellant does not dispute that original plaintiff Dr. Khem Chand was owner of the suit property. Claim of the appellant is that the suit property was given to him in family settlement. However, the appellant has miserably failed to prove his said version. Defendant no. 1 while appearing as DW2 has reiterated his version regarding alleged family settlement. However, there is no other oral or documentary evidence regarding the alleged family settlement. Self serving bald and sole oral statement of defendant no. 1 – appellant himself is not sufficient to prove alleged family settlement or to prove that defendant no. 1 – appellant has become owner of the suit property pursuant to alleged family settlement. Concurrent finding by both the courts below to this effect, therefore, does not suffer from any infirmity much less Regular Second Appeal No. 62 of 2011 -4- illegality or perversity so as to warrant interference in second appeal. Learned counsel for the appellant emphatically contended that the appellant-defendant no. 1 had been adopted by the original plaintiff and in this regard defendant no. 1 wanted to lead additional evidence in first appeal by way of school certificate, bank account, insurance policies etc. but appellant's application for additional evidence has been dismissed by lower appellate court along with appeal itself. However, it was plaintiff's own case in the plaint that he had brought up defendant no. 1 just like his son because defendant no. 1 as newly born child was abandoned in plaintiff's hospital. It was, therefore, natural for the plaintiff to mention his own name as father of defendant no. 1 because name of natural biological father of defendant no.1 was not known. So consequently even if defendant no. 1 is depicted to be son of plaintiff Dr. Khem Chand in the aforesaid documents sought to be produced by additional evidence, it would nowhere prove adoption of defendant no. 1 by the plaintiff. Even in these documents, as conceded by learned counsel for the appellant, defendant no. 1 has not been depicted to be adopted son of the original plaintiff. Even in the instant second appeal or even in the first appeal, defendant no. 1 did not mention himself in the memo of parties to be adopted son of Khem Chand but simply mentioned himself to be son of Khem Chand. Mentioning of defendant no. 1 as son of Khem Chand in different documents would not depict lawful and legal adoption of appellant by Khem Chand plaintiff particularly so because the plaintiff treated defendant no. 1 just like his son although not as son or adopted son. Even assuming for the sake of argument only that defendant no. Regular Second Appeal No. 62 of 2011 -5- 1 was adopted as son by the plaintiff even then defendant no. 1 would not automatically become owner of the suit property. On the contrary defendant no. 1 claimed ownership over the suit property on the basis of alleged family settlement but defendant no. 1 has miserably failed to prove the alleged family settlement. For the reasons aforesaid, there is no merit in the second appeal. Concurrent finding recorded by both the courts below in favour of the original plaintiff and against defendants is based on proper appreciation of evidence and is duly supported by cogent reasons recorded in elaborate judgments by the courts below. The said finding, therefore, does not warrant interference in second appeal as it is neither perverse nor illegal nor based on misreading or misrepresentation of evidence. The appeal is accordingly dismissed in limine. ( L.N. Mittal ) January 07, 2011 Judge 'dalbir'