IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.: 98 of 1999. Reserved on: 18.03.2009. Decided on: 31.03.2009. Shri Shadi Ram. … … Appellant. Versus Shri Jai Gopal and Another. … … Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the Appellant: Mr. G.D. Verma, Senior Advocate with Mr. B.C. Verma, Advocate. For Respondents: Mr. Neeraj Gupta, Advocate. Rajiv Sharma, Judge: This regular second appeal is directed against the judgment and decree passed by the learned District Judge, Solan in Civil Appeal No. 16- S/13 of 1998 dated 7.12.1998. Brief facts necessary for adjudication of this regular second appeal are that the respondents/plaintiffs (hereinafter referred to as the plaintiffs for convenience sake) had filed a suit for permanent injunction restraining the appellant/defendant (hereinafter referred to as the Whether reporters of local papers may be allowed to see the judgment? Yes. - 2 - defendant for convenience sake) from raising any construction or changing the nature of the suit land as detailed in the plaint. It is stated in the plaint that the defendant in order to grab the best piece of land wanted to construct a structure over the suit land and also intended to cut valuable trees. The defendant filed written statement and counter- claim. In counter-claim, it is stated that he is adopted son of Smt. Sunkhi widow of Durgu. He being the legal heir and sole successor of Smt. Ram Rakhi, mutation after the death of Smt. Ram Rakhi should have been attested in his favour. The suit was decreed by the trial court on 30.3.1998. The defendant preferred an appeal before the learned District Judge, Solan. The learned District Judge, Solan dismissed the appeal on 7.12.1998. Hence, this regular second appeal. The regular second appeal was admitted on 14.7.1999 on the following substantial questions of law:- 1. Whether the averments made in para-2 of the Ex.DA amounts to an admission of a fact and, if so, what is the effect thereof? 2. Whether a person who has been adopted by one widow of the deceased after his death has a right to succeed to the estate of the other widow of the deceased as a legal heir of her deceased husband? Mr. G.D. Verma, the learned Senior Advocate has strenuously argued that the judgments and decrees passed by both the Courts below are not sustainable in the eyes of law. He has placed strong reliance upon Ex.D-A. He lastly contended that both the Courts below have wrongly construed the admission made on the basis of Ex.D-A. Mr. - 3 - Neeraj Gupta has supported the judgments and decrees passed by both the Courts below. I have heard the learned counsel for the parties and gone through the record carefully. Since both the substantial questions of law are interconnected, they taken up together for adjudication to avoid repetition to refer to the evidence. Shri Durgu was the owner of the suit land. He was succeeded by two widows, namely, Smt. Sunkhi and Smt. Ram Rakhi alongwith a son Nek Ram. He died in an accident. Smt. Sunkhi during her life time gifted half share of the suit land to the defendant. On death of Smt. Ram Rakhi alias Gungi, second widow of Durgu, mutation of inheritance, No.678 dated 18.12.1994 was sanctioned in favour of the plaintiffs. The case of the defendant is that he alone succeeded to the half share of Smt. Ram Rakhi in the suit land being the adopted son. The defendant has placed strong reliance on Ex.D-A. This is the copy of plaint filed in civil suit No.506/1. The defendant was not a party to this suit. Shri G.D. Verma has strongly relied upon Nagindas Ramdas v. Dalpatram Iccharam alias Brijram and others, AIR 1974 SC 471. He has vehemently argued that as per the ratio laid down in this judgment, the suit of the plaintiffs was required to be dismissed. Mr. Neeraj Gupta has relied upon Biswanath Prasad and others v. Dwarka Prasad and others, AIR 1974 SC 117 and Smt. Priya Bala Ghosh v. Suresh Chandra Ghosh, AIR 1971 SC 1153. It is clear from the ratio of judgment laid down in Biswanath Prasad’s case - 4 - (supra) that the admissions are substantive evidence by themselves, but not conclusive proof of the matters admitted. In the present case, the Court has to determine whether the defendant was adopted in accordance with law or not. In this case the admission of adoption may not be sufficient to prove the adoption, unless and until it is proved in accordance with law. In civil suit No.506/1 of 1990, admittedly, the defendant was not a party. The plaintiffs have challenged in the suit the Will of Smt. Ram Rakhi in favour of Kihru Ram. There is no admission in the plaint that the defendant was adopted by Smt. Ram Rakhi alias Gungi. It is not pleaded in clear terms that Ram Rakhi ever adopted the defendant as her son. In counter-claim also, it is stated that he was adopted son of Smt. Sunkhi and sole heir of Ram Rakhi. The statements of DW-2 and DW-3 regarding adoption are contradictory. In revenue papers, Panchayat records, voters list and in school, the entry is to the effect that defendant was recorded son of Shri Ram Rattan. This is also admitted by DW-2, Ganesh Datt, son of defendant. It is one of the basic ingredients of adoption that after adoption, the relations of the adopted son are severed with the natural parents. He has in fact inherited the property of his father Shri Ram Rattan. It is also necessary to perform Datta Homan for valid adoption. The defendant has not led any evidence that this ceremony was performed. The defendant has failed to prove the custom prevailing in the area on the basis of which one widow could adopt the son without the consent of other co-widow. It was necessary for him to plead the custom and to prove it. The defendant has failed to prove the adoption in accordance with law. - 5 - The learned Courts below after correctly appreciating the evidence have come to just conclusion that the defendant has failed to prove the adoption in accordance with. Consequently, in view of the observations made hereinabove, there is no substantial question of law involved in this regular second appeal and the same is accordingly dismissed. There shall, however, be no order as to costs. March 31, 2009. (Rajiv Sharma) (sck). Judge.