RSA No.2196 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2196 of 2010 Date of Decision: 10.08.2010 Sh. Mahi Pal .……Appellant Versus Jasbir and another ……Respondents Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Abhishek Sethi, Advocate for the appellant. L. N. MITTAL, J (ORAL) Plaintiff No.2-Mahipal has filed the instant second appeal, having remained unsuccessful in both the Courts below. In the memo of parties at Pages 23-A and 23-B , appellant has also been depicted as proforma respondent No.5 whereas in the original memo of parties at Page 23 of the paper book, plaintiffs No.1 and 3 to 5 were not impleaded either as appellants or as proforma respondents. Jabar Singh Plaintiff No.1 has since died and is represented by his legal representatives No. 4 (i) to 4 (xiv). Suit was filed by proforma respondent Nos.4 to 8 including the appellant-plaintiff No.2 against respondent Nos.1 to 3. The dispute is regarding inheritance of land of Jaimal. Plaintiffs are sons and daughters of Bhaga, brother of Jaimal. Defendant No.3-Jaipal is also a son of Bhaga. Defendant Nos.1 and 2 are sons of Jaipal defendant No.3. The plaintiffs alleged that suit land comprising of share of Jaimal since deceased devolved on all the five plaintiffs and defendant No.3 in equal shares i.e 1/6th share each being sons and daughters of brother of Jaimal, who died RSA No.2196 of 2010 -2- unmarried and issueless. Accordingly, the plaintiffs sought decree for joint ownership and joint possession of the suit land to the aforesaid effect. The plaintiffs also claimed declaration that defendant Nos.1 and 2 have no right, title or interest in the suit land on the basis of alleged adoption as per alleged adoption deed dated 04.01.1974 registered on 07.01.1974 and mutation No.4430. Decree dated 09.09.1991 suffered by defendant No.1 in favour of defendant No.2 and consequent mutation No.4794 were also challenged in the suit. Permanent injunction restraining defendants No.1 and 2 from interfering in proprietory and possessory rights of the plaintiffs was also claimed. Defendants while admitting the relationship between the parties denied the other plaint allegations and inter alia pleaded that Jaimal had adopted defendant No.1 Jasbir as his son and adoption deed dated 04.01.1974 registered on 07.01.1974 was also executed in this regard. Consequently, on the death of Jaimal, the suit land of his share devolved upon defendant No.1 being his adopted son and, therefore being his sole legal heir. Accordingly, defendant No.1 became owner in possession of the suit land. Aforesaid adoption and the adoption deed and inheritance mutation of Jaimal and the decree suffered by defendant No.1 in favour of defendant No.2 and the consequent mutation were defended by the defendants as legal and valid. Learned Additional Civil Judge (Senior Division), Kaithal vide judgment and decree 17.10.2007 dismissed the plaintiffs' suit. First appeal preferred by the plaintiffs has been dismissed by learned Additional District Judge, Kaithal vide judgment and decree dated RSA No.2196 of 2010 -3- 14.11.2009. Feeling aggrieved, plaintiff No.2 only has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Both the Courts below have arrived at concurrent finding of fact that adoption of defendant No.1 by Jaimal is duly proved. The said finding of fact is based on appreciation of evidence and is not shown to be perverse or illegal warranting interference in second appeal. Lower appellate Court is the final Court of fact. The finding recorded by the Courts below is justified by the evidence on record and is supported by detailed reasons recorded by both the Courts below. Consequently, no question of law, much less substantial question of law, arises for determination in the instant second appeal. Registered adoption deed regarding adoption of defendant No.1 by Jaimal has been produced in evidence by the plaintiffs themselves as Ex.P4. Under Section 16 of the Hindu Adoptions and Maintenance Act, 1956 (in short, the Act), if there is registered deed of adoption, presumption arises that adoption had been made in compliance with the provisions of the Act. Of course, the said presumption is rebuttable one. However, the plaintiff has failed to rebut the presumption arising from the registered adoption deed. Learned counsel for the appellant vehemently contended that Section 9 of the Act stipulates that the father of the child if alive shall alone have the right to give the child in adoption, but this right is not to be exercised without the consent of the mother of the child. It was contended that in the instant case, consent of the mother for giving defendant No.1 in adoption to Jaimal is not proved as adoption deed RSA No.2196 of 2010 -4- has not been signed by the mother of defendant No.1. The contention although apparently attractive cannot be accepted. Firstly, no such plea was even raised in the plaint and consequently the contention based on fact, and not on law alone, cannot be allowed to be raised being beyond pleadings. Secondly, in view of Section 16 of the Act, the Court has to presume that the adoption has been made in compliance with the provisions of the Act including the provision of Section 9(2) of the Act relating to consent of the mother of defendant No.1 for giving defendant No.1 in adoption to Jaimal. In fact if such presumption is not raised, the very purpose of Section 16 of the Act would be defeated. Thirdly, the adoption deed was not required to be signed by the mother of defendant No.1 to signify her consent to the adoption because the ceremony of adoption had already taken place. It is recited in the adoption deed that the ceremony of physically giving defendant No.1 in adoption by father of defendant No.1 to Jaimal had already taken place and customary ceremony of distribution of good (Jaggery) etc. had also taken place before the execution of adoption deed. Consequently, it cannot be said that consent of mother of defendant No.1 was not there while giving defendant No.1 in adoption to Jaimal. For all these reasons, the aforesaid contention canvassed by learned counsel for the appellant is found to be without any merit. For the reasons recorded hereinabove, I find no merit in the instant second appeal which is accordingly dismissed in limine. 10.08.2010 ( L. N. MITTAL ) A. Kaundal JUDGE