RSA No.2623 of 2008 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh Date of decision: 14.10. 2009 RSA No.2623 of 2008 (O&M) Vidya ......Appellants Versus Rohtash and another .......Respondents RSA No.2624 of 2008 Kamlesh ......Appellant Versus Rohtash .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Gorakh Nath, Advocate, for the appellants. **** SABINA, J. Plaintiffs Kamlesh and Chajju Ram (through his legal heirs) filed two suits separately bearing Nos. 182 of 11.3.1996 and 590 of 21.11.1997 respectively for declaration, which were RSA No.2623 of 2008 (O&M) 2 dismissed by the Civil Judge (Jr.Divn.), Narwana vide judgment and decree dated 9.5.2005. In appeals, the said judgment and decree were upheld by the Additional District Judge (I), Jind vide judgment and decree dated 23.4.2008. Hence, the present appeals. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 to 8 of its judgment, are as under:- “2. Brief facts are that plaintiff Kamlesh had filed a suit for decree for declaration to the effect that decree dated 9.2.1995 passed in civil suit no.49 instituted on 10.1.1997 to the extent of 1/12th share regarding the land measuring 347 Kanals 17 marlas, khewat and khata no. 70/87. 88 was illegal based upon fraud and mis representation was null and void and was not binding upon the rights of the plaintiff. It was pleaded by the plaintiff Kamlesh that she was daughter of defendant set no.2 and defendant no.1 was son of Khajana Ram and had got no concern with Chajju Ram. It was also pleaded that Rohtash defendant no.1 had got obtained a forged judgment and decree dated 9.2.1995 passed in civil suit no. 49 dated 10.1.1995 pretending himself as the adopted son of Chajju Ram. The said decree was based upon fraud and misrepresentation as defendant no.1 had got no concern with defendant no.2 and defendant no.2 had never adopted defendant no.1 and the adoption deed RSA No.2623 of 2008 (O&M) 3 dated 17.6.1994 was a bogus document having no legal value. It was, further pleaded that no family settlement as mentioned in the civil set no. 49 dated 10.1.1995 had taken place as there was no family of Chhajju Ram and Rohtash. Chhajju Ram resides with his wife while Rohtash resides with his father Khajana. It was also pleaded that defendant no.2 was a drug addict and was of unsound mind and taking advantage of this defendant no.1 had got transferred the land of the defendant no.2 by playing fraud upon him. It was also pleaded that a suit for permanent injunction was filed by her against defendant no.2 wherein, status quo order was passed by the Court and the defendant no.1 was having full knowledge of the said suit and the decree was passed in violation of the court order. It was further pleaded that Rohtash was having his vote with Khajana and his ration card was also prepared alongwith the family of Khajana and there was no joint family of defendant no.1 with defendant no.2. It was also pleaded by the plaintiff that the defendants were asked to get corrected the judgment and decree dated 9.2.1995 but of no avail, hence necessity to file the suit arose. 3. In the written statement filed on behalf of the defendants, it was pleaded that plaintiff was married and RSA No.2623 of 2008 (O&M) 4 she does not depend upon the defendant no.2 and further that plaintiff was daughter of first wife of defendant no.2 and after the death of first wife defendant no.2 had conducted second marriage but no issue was born, hence defendant no.2 adopted his nephew Rohtash in his childhood and Rohtash had been residing with defendant no.2 as adopted son. It was further contended that the defendant no.1 had been adopted by the defendant no.2 as per Hindu rites and zamindara customs and was given in adoption by the parents of the defendant no.1. An adoption deed registered on 17.6.1994 was also executed. It was also contended that the decree dated 9.2.1995 was rightly and legally passed and the plaintiff had got no right to challenge the decree. Remaining contents of the case of the plaintiff had been denied by the defendants stating that defendant no.1 was adopted son of defendant no.2 and the decree dated 9.2.1995 had been rightly passed and plaintiff was not entitled to any relief. Suit of the plaintiff Kamlesh was also contested by the defendants on the grounds of locus standi, cause of action, false and frivolous nature of the suit with these submissions a prayer for dismissal of the suit was made. 4. Replication to the written statement of the defendants was filed by the plaintiff, wherein she RSA No.2623 of 2008 (O&M) 5 reiterated her stan taken in the plaint and controverted the averments made by the defendants in the written statement. From the pleadings of the parteis issues were framed vide order dated 6.2.1997 but thereafter an amendment application was filed on 27.8.1997, which was allowed for making amendment in the written statement of the defendant no.2 on 20.3.1999. 5. In his amended written statement defendant no.2 submitted that plaintiff was his daughter. It was submitted that he was a patient of 'Asthma' and defendant no.1 and his family members used to give him drugs for treatment and they got passed a forged decree on 9.2.1995 by paying fraud and misrepresentation. It was also submitted that he did not engage any counsel and his statement and thumb impressions were obtained without his knowledge. It was also pleaded by the defendant no.2 t hat he was not bound by the decree which was a forged document and defendant no.1 had got no concern with him. It was also pleaded that defendant no.1 was never adopted by him and there is no joint family of him and defendant no1. No family settlement and no partition had taken place between him and defendant no.1. Further defendant no.2 pleaded defendant no.1 Rohtash resides alongwith his father RSA No.2623 of 2008 (O&M) 6 Khajana and defendant no.1 had never rendered any services to him. With submissions, a prayer for decree of the suit of the plaintiff was made. 6. Plaintiff Chhajju Ram had filed a suit for decree for declaration to the effect that judgment and decree dated 9.2.1995 passed in civil suit no.49 dated 10.1.1995 regarding land measuring 347 kanals 7 marlas khewat and khata no. 70/86 to 88 to the extent of 1/12 share was illegal, null and void and was based upon fraud and misrepresentation and was having no binding effect upon the plaintiffs was liable to be set aside. 7. It was pleaded by the plaintiff Chhajju Ram that he was a co-sharer. Co-owner to the extent of 1/12 share in the suit land measuring 347 kanals 7 marlas and defendant had got no concern with the same. It was also pleaded that defendant got passed the decree dated 9.2.1995 fraudulently and by misrepresentation alleging himself as the adopted son of plaintiff. It was also pleaded that he was not bound by the decree and the same was liable to be set aside as he was having no concern with Rohtash and never adopted him and also never executed any adoption deed. It was also pleaded that the adoption deed was a forged document and defendant was son of Khajana having ration card and RSA No.2623 of 2008 (O&M) 7 voter card with Khajan. It was further pleaded that he was in possession of 1/12th share of the suit land and no family settlement took place with defendant. As per plaintiff he was suffering from Asthma and the family members of the defendant used to give him medicine in the absence of his wife and daughter and thereafter, when his wife went to her parents house, defendant and his family members gave him drugs and he was not informed about the decree dated 9.2.1995. It was also pleaded that he did not appear in the court and his statement was not recorded. His thumb impressions were obtained outside when defendant brought him to Narwana. No advocate was engaged by him, hence, the decree was based upon fraud. It was also pleaded that he came to know about the decree dated 9.2.1995 in August, 1997 when his daughter came to the village and he had requested the defendant to get the judgment and decree dated 9.2.1995 set aside but of no avail, hence, necessity to file the suit arose. 8. In the written statement filed on behalf of the defendant, it was contended that plaintiff was owner to the extent of 1/12th share in the suit land but after 15.2.1995 he had got no concern with the suit land. As per defendant he was adopted by plaintiff on his own will RSA No.2623 of 2008 (O&M) 8 and plaintiff got suffered a decree regarding his share in the suit land in his favour. Hence, the question of fraud and misrepresentation does not arise. It was also submitted by the defendant that he was real son of brother of plaintiff and as the plaintiff was having no son he was adopted by the plaintiff and adoption deed was also executed and now he was owner to the extent of 1/12th share. The suit of the plaintiff was also contested on the grounds of maintainability, suppressions of material facts and estoppel. With these submissions, a prayer for dismissal of the suit was made by the defendants.” On the pleadings of the parties, following issues were framed by the trial Court:- “i) Whether judgment and decree dated 9.2.1995 is null and void on the grounds as alleged in the plaint? OPP ii) Whether the defendant was adopted by the plaintiff?OPD iii) Whether the suit is not maintainable in the present form?OPD iv) Whether plaintiff Kamlesh d/o Chajju has no locus standi to file the present suit?OPD v) Whether the parties are jat by castes and RSA No.2623 of 2008 (O&M) 9 governed by Zamindaras customs in the manner of alienation?OPD vi. Relief. After hearing learned counsel for the appellants, I am of the opinion that the present appeals are devoid of any merit and deserve to be dismissed. Decree dated 9.2.1995 passed in civil Suit No.49 dated 10.1.1995 was challenged by the plaintiffs Kamlesh and Chhaju Ram by way of separate suits. During the pendency of the suit, Chhaju Ram died and his legal representatives were brought on record. Plaintiff Kamlesh denied that Rohtash had ever been adopted by Chajju Ram. It was further pleaded by the plaintiff that Chhaju Ram was of unsound mind and Rohtash by taking advantage of the condition of Chhaju Ram had got the decree in his favour. Chhaju Ram had initially filed a joint written statement with Rohtash in the suit filed by Kamlesh challenging the correctness of the decree dated 9.2.1995 but subsequently, he had filed a separate written statement challenging the decree in question. DW-5 R.C.Goyal, Advocate deposed that Chhaju Ram had engaged him as a counsel in civil suit No.49 of 10.1.1995. He had filed written statement on 1.2.1995 as per the instructions of Chhaju Ram. Chhaju Ram had admitted the claim of Rohtash in the said suit. Statement of Chhaju Ram was recorded in the Court on 1.2.1995 and on the basis of the same, the suit was decreed in RSA No.2623 of 2008 (O&M) 10 favour of Rohtash. Thus, the plaintiff had failed to establish that the decree in question was a result of fraud or misrepresentation. Defendant Rohtash was adopted by Chhaju Ram vide adoption deed dated 13.6.1994 registered on 17.6.1994. Ex. D-35 is the adoption deed, vide which Rohtash was adopted by Chhaju Ram. It is mentioned in the adoption deed that Rohtash had been given in adoption by his parents as per the custom. First wife of Chhaju Ram had died and he was having a daughter from his first wife. Chhaju Ram and his second wife Vidya Devi were not having any child. Deed Writer, Suresh Kumar Sethi, who had scribed the adoption deed, was examined as DW-7 and he proved the execution of Ex.D-35. Defendant also examined handwriting and finger print expert, who had compared the thumb impressions of Chhaju Ram on the written statement dated 1.2.1995 and the statement recorded in the Court on that date and also on the adoption deed with the standard thumb impressions of Chhaju Ram. He also compared the thumb impressions of Vidya Devi on the adoption deed with her standard thumb impressions. As per his report, the questioned and standard thumb impressions of Chhaju Ram and Vidya Devi were of one and the same person. It has been observed by the Additional District Judge in the impugned judgment that in civil suit No.419/1994 (filed by Kamlesh against her father Chhaju Ram), Kamlesh ,while appearing in the witness box, had stated that her father desired to take Rohtash RSA No.2623 of 2008 (O&M) 11 in adoption and had transferred the land in his favour. Ex.D-36 dated 18.11.1997 is the judgment passed in the said suit. Kamlesh had also stated that during the pendency of the said suit, her father had adopted Rohtash and had suffered a decree regarding the land in his favour. Father of Rohtash had appeared in the witness box and had stated that he had given Rohtash in adoption to Chhaju Ram. Thus, the factum of adoption was admitted by Kamlesh in the said suit. In these circumstances, both the Courts below rightly dismissed the suits of the plaintiffs. No substantial question of law arises in these regular second appeals. Accordingly, the same are dismissed. (SABINA) JUDGE October 14, 2009 anita