RSA No. 126 of 1999 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 126 of 1999 Date of decision 07.09. 2010. Smt. Umraoli ...... Appellant. versus Puran ...... Respondent. CORAM :- HON'BLE MR.JUSTICE K.C.PURI. Present : Ms. Shriya Chahar Panjeta, Advocate for the appellant. Mr. J.P.Sharma, Advocate for the respondent. K.C.PURI, J. This is regular second appeal directed by appellant-plaintiff against the judgment and decree dated 15.6.1998 passed by Shri R.K.Kashyap, Additional District Judge, Narnaul vide which the appeal preferred by the plaintiff against the judgment and decree dated 27.9.1991 passed by Shri T.C.Tanwar, the then Additional Senior Subordinate Judge, Mahendergarh was dismissed. The facts of the case as set up in the plaint are that Smt. Umrawali has filed suit for decree for declaration against the defendant on the allegation that she being the daughter of Mamraj is entitled to inherit his property. The defendant was never adopted by deceased Mamraj and the mutation bearing No.1053 dated 30.7.1983 regarding the suit land was RSA No. 126 of 1999 2 wrongly and illegally sanctioned in his favour. The impugned orders dated 30.7.1983, 20.12.1983 and 21.11.1985 passed by the Assistant Collector Ist Grade, Mahendergarh, the Collector Narnaul and the Commissioner, Range Hissar, Hissar respectively, vide which the disputed mutation No.1053 of the suit land has been held to be rightly sanctioned in favour of the defendant are wrong, against the law, null and void and not binding on the rights of the plaintiff. The pedigree table showing the relations of the plaintiff and the defendant is as under :- Bohta 1 1 Mamraj Begh Raj Parbhu 1 1 Smt.Umrawali Puran Earlier, Mamraj was the exclusive owner in possession of the suit land fully described in the head note of the plaint. After the death of Mamraj, the plaintiff being his daughter is entitled to inherit his property. The defendant was never adopted by late Mamraj through the adoption deed bearing No.46 dated 4.7.1983. The alleged adoption deed is the result of fraud misrepresentation and as such liable to be set aside. Deceased Mamraj was aged about 70 years he was hard of hearing and his eye sight was weak at the time of the execution of the disputed adoption deed dated 4.7.1983. The defendant was more than 15 years old at the time of the execution of the aforesaid adoption deed and so, he could not be lawfully adopted by Mamraj. On the basis of the disputed adoption deed, mutation bearing No.1053 dated 30.7.1983 regarding the suit land was unlawfully sanctioned in favour of the defendant. Against the mutation bearing No.1053, the plaintiff had filed an appeal which was wrongly dismissed on RSA No. 126 of 1999 3 20.12.1983 by the Collector, Narnaul. The plaintiff had preferred an appeal against the order dated 20.12.1983 but that too was dismissed on 21.11.1985 by the Commissioner, Hissar Range, Hissar. The plaintiff repeatedly asked the defendant to concede his claim but of no avail. Hence the suit. On notice, the defendant appeared and filed written statement denying averments of the plaint and took up preliminary objections that the plaintiff has no locus standi to file this suit, the suit is not maintainable that the suit is time barred, that the plaintiff is estopped from filing this suit by her own act and conduct that the parties to suit are governed by the custom of “ZAMINDARA” regarding the adoption and that the defendant is entitled to special costs under Section 35-A, CPC. On merits, it was asserted that the impugned mutation baring No.1053 was lawfully sanctioned in favour of the defendant. The impugned orders dated 30.7.1983, 29.12.1983 and 21.11.1985 were legally passed by the Assistant Collector, Mahendergarh, the Collector, Narnaul and the Commissioner, Hisar Range, Hisar respectively. The plaintiff is not the daughter of Mamraj. Denying other averments, defendant prayed for dismissal of the suit. Following issues were framed on 19.1.1987 :- 1. Whether the plaintiff is owner in possession of the land in dispute ? OPP 2. Whether the defendant is the adopted son of Mamraj ? OPD 3. Whether the plaintiff has no locus standi to file the present suit ?OPD. 4. Whether the suit is not maintainable ? OPD RSA No. 126 of 1999 4 5. Whether the suit is time barred?OPD 6. Whether the defendant is entitled to special costs ?OPD. 7. Relief. Both the parties have led their respective evidence on the aforesaid issues. After perusal of the evidence and hearing the learned counsel for the parties, the learned trial Court dismissed the suit of the plaintiff vide judgment and decree dated 27.9.1991. Feeling dissatisfied with the judgment and decree dated 27.9.1991, the plaintiff-appellant preferred appeal before the First Appellate Court. The said appeal was heard by Shri R.K.Kashyap, Additional District Judge, Narnaul, who dismissed the appeal vide judgment and decree dated 15.6.1998. Still feeling dissatisfied with both the judgments and decrees passed by the Courts below, plaintiff-appellant has preferred the present regular second appeal. I have heard learned counsel for the parties and have gone through the records of the case with their help. The appellant has placed on record following substantial questions of law for adjudication in this case :- 1. That whether the learned Courts below have erred in relying upon Ex.D/1 i.e. alleged Adoption deed, which is a forged document ? 2. Whether the Ld Courts below have erred in relying upon Ex.D/1 even when it is not signed by either of the parents of the respondent who gave him in adoption, which is mandatory as per the Hindu Adoption and Maintenance Act RSA No. 126 of 1999 5 1956 ? 3.That whether finding of the Ld Courts below is unsustainable in the eyes of law as the respondent was more than 15 years of age at the time of the alleged Adoption deed ? 4.That whether the Ld Courts below have erred in not taking into consideration that the Appellant is the daughter and only surviving issue of Late Mamraj which is even proved by testimony of PW1, PW2, PW3, PW4, PW5 and PW6 which goes unchallenged as they were not cross-examined ? 5. That whether even if the respondent is proved to be adopted as alleged, then also the Appellate is rightfully entitled to half share being daughter of Late Mamraj ? Learned counsel for the appellant has submitted that all the witnesses examined by the plaintiff are having relationship with Mamraj. Both the Courts below have misread and misinterpreted the evidence regarding her relationship with Mamraj. No cross-examination on these witnesses was conducted to the effect that she was not the daughter of Mamraj. The persons with special knowledge have been produced. Their testimonies have been ignored by both the Courts below wrongly. So, the finding of both the Courts below that plaintiff is not the daughter of Mamraj requires to be reversed. I have carefully considered the said submission and have gone through the records of the case. The crucial question for determination before both the Courts below was whether the plaintiff is the daughter of Mamraj, whose inheritance she claimed ? Both the Courts below have given a concurrent finding of fact RSA No. 126 of 1999 6 that plaintiff has failed to prove that she is daughter of Mamraj. There is nothing on the file to show that the said finding are the result of misreading and misinterpreting the evidence on the file. All the arguments now raised were raised before both the Courts below but do not find favour by both the Courts below. The witnesses of the plaintiff were duly cross-examined as discussed by the First Appellate Court in its judgment. So, the plaintiff cannot state that defendant had admitted the relationship of the plaintiff with Mamraj. The learned counsel for the appellant has further submitted that both the Courts below have committed error in relying upon adoption deed Exs.D-1. It has not been signed by the parties, who gave in adoption. It is further argued that respondent was more than 15 years at the time of alleged adoption. Both these arguments were also advanced before both the Courts below but do not find favour from both the Courts below. The factum of adoption is also a question of fact and the finding of both the Courts below is in favour of the defendant and against the plaintiff. There is also nothing on the file that the said finding is result of misreading and misinterpreting the evidence on the file. Otherwise also plaintiff can succeed only if she is able to prove that she is daughter of Mamraj. In view of the above discussion, the substantial questions of law raised by the plaintiffs/appellants above stand answered against the plaintiffs/appellants. Consequently, the appeal is without any merit and the same stands dismissed. RSA No. 126 of 1999 7 A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE September 07, 2010 sv