R.S.A. No. 3754 of 2011 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. R.S.A. No. 3754 of 2011 Date of decision:- 07.12.2011 Ram Diya and others ...Appellants Versus Siya Ram and others ...Respondents 2. R.S.A. No. 3755 of 2011 Date of decision:- 07.12.2011 Ram Diya and others ...Appellants Versus Siya Ram and others ...Respondents CORAM: HON'BLE MS. JUSTICE RITU BAHRI Present:- Mr. R.S. Dhull, Advocate for the appellants. RITU BAHRI J. These regular second appeals are against the judgment dated 02.6.2011 whereby the Additional District Judge, Jind whereby appeal against the judgment and decree dated 05.8.2009 was accepted with costs and the appeal filed by Ram Diya was rejected with costs. Brief facts of the case are that the plaintiffs filed a suit R.S.A. No. 3754 of 2011 -2- for declaration with consequential relief of possession and permanent injunction. They claimed to be owners in equal shares of the land comprised in Khewat No.481 Khata No.552 total measuring 17 Kanals 17 Marlas situated within the revenue estate of Village Brah Kalan. The dispute relates to adoption deed No.24 dated 27.6.1977 and the judgment and decree dated 31.5.1984. The admitted case of the parties is that one Meehun son of Chhittar resident of Village Brah Kalan was owner of the agricultural land comprised in Khewat No.481 Khata No.552 total measuring 17 Kanals 17 Marlas as per jamabandi for the year 1999-2000 situated in village Brah Kalan, Tehsil and District Jind. Meehun died intestate in 1983 leaving behind his widow Smt. Pannia and his daughter Reshma and after his death they inherited the said land in equal shares. After the death of Pannia her share was also inherited by her daughter Reshma and in this way Reshma became absolute owner of the property. The plaintiffs are legal representatives of Reshma, who has also died and are entitled to get the mutation of ownership rested in their favour regarding the suit land. It is pleaded that defendant No.1 Siya Ram son of Gurmukh used to take the land on batai from Paania widow of Meehun. After the death of Paania the said land was given on batai by Reshma. After the death of Reshma, the defendant Siya Ram refused to give the batai to the plaintiffs, who are legal representatives of Reshma. He relied on the adoption deed alleged to have been executed by Meehun in R.S.A. No. 3754 of 2011 -3- his favour. Subsequently, plaintiffs came to know about the judgment and decree passed in suit No.229 of 23.5.1984. Subsequently, they came to know about sale deed No.3020 dated 03.10.2003 executed in favour of defendant Nos.2 and 3 by defendant No.1. On notice, defendant No.1 filed written statement on the ground of maintainability, cause of action, locus standi, concealment of facts, advalorem court fee, estoppel etc. On merits, it was alleged that Shri Meehun had adopted Siya Ram during his life time as per the custom prevailing in the Community on 27.6.1957. At that time Siya Ram was about 10 years old. Since then he ws residing with Meehun as his family member. It is a registered adoption deed No.24 dated 27.6.1977, executed by Meehun. After his death, his widow Paania and his daughter Reshma inherited 1/3 rd share each in the suit land. A consent decree was suffered by Smt. Paania and Smt. Reshma in favour of defendant No.1 on the basis of mutual family settlement and judgment and decree dated 31.5.1984 was passed in the civil suit filed by defendant No.1. The plaintiffs are children of Smt. Reshma but in view of the consent decree dated 31.5.1984 they have no right of inheritance in the share of Smt. Reshma. Defendant No.1 was in possession of the suit land since 1983 and he had sold the land to defendant os.2 and 3 vide sale deed No.3020 dated 03.10.2003. In view of the adoption deed and decree the sale deeds are not liable to be cancelled. Defendant Nos.2 and 3 contested the suit of the plaintiffs and R.S.A. No. 3754 of 2011 -4- denied the pleas taken by the plaintiffs in the plaint. They have adopted the pleas taken by defendant No.1 in the written statement. From the pleadings of the parties, on 1.4.2004 following issues were framed :- “1. Whether the plaintiffs are owners of the suit land in equal share thereof? OPP 2. Whether the plaintiffs are entitled to the possession of the suit land from the defendants? OPP 3. Whether the plaintiffs are entitled to the mense profits @ Rs.7500/- per acre per annum w.e.f. The date of filing of present suit till the possession of the same is handed over to them? OPP 4. Whether adoption deed No.24 dated 27.6.1977 is illegal, null and void and is not binding on the rights of the plaintiff?OPP 5. If issue No.4 is proved, what is the effect of the same on mutation No.1019 of 1984? OPP 6. Whether the judgment and decree dated 31.5.1984 passed in civil suit No.299 of 23.5.1984 are illegal, null and void, if so, what is the effect thereof on the mutation No.1105 of 1986? OPP 7. Whether the sale deed No.3020 dated 03.10.2003 executed by defendant No.1 in favour of defendants No.2 and 3 is illegal, null and void and is not binding on the rights of plaintiffs? OPP 8. Whether the plaintiffs are entitled to the relief of permanent injunction as sought for by them? R.S.A. No. 3754 of 2011 -5- OPP 9. Whether the suit of plaintiff is not maintainable in the present form? OPD 10. Whether the plaintiffs have no cause of action and locus standi to file the present suit?OPD 11. Whether the suit of plaintiffs is time barred? OPP 12. Whether the plaintiffs have not come to court with clean hands, if so, its effect? OPD 13. Whether the suit is bad for want of advalorem court fee? OPD 14. Whether the plaintiffs are estopped by their own act and conduct from filing the present suit?OPD 15. Whether the suit is false and frivolous and is liable to be dismissed with special costs? OPD 16. Whether the defendant No.1 had become owner in possession of the suit land by way of adverse possession also as alleged? OPD 17. Whether defendants No.2 and 3 are the bonafide purchasers of suit land, if so, its effect? OPD 18. Relief.” Issue Nos.1 to 8 were taken together and the trial Court after examining the entire evidence led by the parties set aside the adoption deed and held that the plaintiffs were entitled to 1/3 rd share if inherited by defendant No.1-Siya Ram on the demise of Meehun. The remaining 2/3 rd share in the suit land is owned and possessed by defendant No.1. The judgment and decree dated 31.5.1984 has been upheld as the plaintiffs have failed to prove that this decree was procured by misrepresentation and fraud. The plaintiffs were in knowledge of this decree and have challenged the decree after a gap of 19 R.S.A. No. 3754 of 2011 -6- years. Under Article 5 of the Limitation Act they could challenge this decree within a period of three years. As per findings on issue Nos.9, 10 and 11 it was held that suit qua adoption deed was maintainable on the basis of claim of succession right. Issue Nos.12,13 and 15 were not pressed by the defendants. On issue No.14 the findings was given that the plaintiff was estopped from filing the present suit qua the impugned judgment and decree. The plaintiffs could not lead any evidence to prove that defendant No.1 was in adverse possession of the suit land. The finding on issue No.16 was returned against defendant No.1. On issue No.17 whether defendant Nos.2 and 3 were bonafide purchaser, the trial Court has given the finding that they were bonafide purchasers of 4 kanals out of total land. The suit was decreed that the plaintiffs were owners of the suit land to the extent of 1/3 rd share. The appeal was filed by the plaintiffs as well as defendant-Siya Ram. The Appellate Court has reversed the findings of the trial Court and has upheld the adoption deed dated 27.6.1977. Meehun was owner in possession of the property in dispute and it is an admitted fact that the adoption deed was executed in the year 1977 and at that time the age of Siya Ram-defendant No.1 was 30 years. It is stated in the adoption deed that Siya Ram was living with Meehun since childhood. He had brought him up and arranged his marriage. The recital in the adoption deed proves that he has been adopted long back. After the death of Meehun, Siya Ram, the adopted R.S.A. No. 3754 of 2011 -7- son was given 1/3 rd share and 2/3 rd to Reshma and his wife Pannia. Reshma and Pannia never challenged this recital during their lifetime. They accepted the last wish of Meehun and also accepted the fact that Siya Ram was adopted son of Meehun. The subsequent civil court decree where Pannia and Reshma transferred their 2/3 rd share to Siya Ram and suffered a decree Ex.P12 dated 31.5.1984. This decree was never challenged by Reshma and Pannia during their life time. Even the plaintiff could not challenge the decree. Challenge to the decree that it was not registered has been rejected by the Appellate Court on the ground that it was Reshma, who was party to the said suit land and she was not competent to challenge it on the ground of registration. There was no challenge to the inheritance conducted in favour of defendant Nos.2 and 3. The appeal filed by Siya Ram is accepted with costs and appeal filed by Ram Diya was rejected. After going through the judgments passed by both the courts and from the facts and circumstances, the Adoption Deed dated 27.6.1977 is a valid deed. It is not liable to be rejected on the ground being illegal null and void. After the death of Meehun the land was inherited by Siya ram, his widow Paania and daughter Reshma and mutation of 1/3 rd ownership of the share was sanctioned. It is important to note that the mutation was never challenged by Smt. Paania widow of Meehun and daughter Reshma during their life time. Paania died in the year 1999 R.S.A. No. 3754 of 2011 -8- whereas Reshma died in the year 2002. They lived several years after the execution of these two documents i.e. Adoption Deed and decree passed in 1984. Hence, when Reshma and Paania did not challenge the collusive decree dated 31.5.1984 during their life time, it is to be believed that they have accepted Siya Ram to be the adopted son of Meehun. After the transfer of the land in favour of defendant No.1 by a mutual settlement on 31.5.1984, he sold his part of land to defendant Nos.2 and 3, who are bonafide purchasers. Counsel for the appellants has not been able to dispute that during the lifetime of Paania and Reshma they did not challenge the adoption deed as well as the decree dated 31.5.1984. No question of law much-less substantial question of law arises for consideration before this Court. The regular second appeal is dismissed. December 07, 2011 ( RITU BAHRI ) Vijay Asija JUDGE