RSA No.3671 of 2008 -1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3671 of 2008 Date of Decision: 14.11.2008 Banwari Lal and another ..Appellants. Vs. Bhagirath @ Bhagla and others ..Respondents. CORAM : HON'BLE MR.JUSTICE RAKESH KUMAR JAIN * * * Present: Mr.Ashok Verma, Advocate for the appellants. * * * Rakesh Kumar Jain, J. This is an appeal filed by the plaintiffs against the judgment and decree of both the Courts below. The pleaded case of the plaintiffs is that one Kishna son of Lala was the owner in possession of land measuring 71 Bighas 6 Biswas bearing old Khasra Nos.328/8(37-1), 154(34-5) situated in village Sulikhera, Tehsil and District Fatehabad. After consolidation in the village, old khasra numbers were converted into new Khasra numbers and it became 109 kanals 11 marlas. Kishna had one son Kesa who predeceased him. Kesa was survived by two sons namely Budha (father of the appellants) and Raju @ Rajia (predecessor-in-interest of the respondents). Raju @ Rajia was adopted by one Teja son of Harji resident of village Dobhi, Tehsil and District Hisar. The controversy involved in the present case is regarding ½ share of the land measuring 109 Kanals 11 Marlas. The case of the plaintiffs RSA No.3671 of 2008 -2 - is that in the year 1911-12 Raju @ Rajia was adopted by Teja and was thus transplanted into the family of Teja and when Kishna died in the year 1917 the entire property measuring 109 Kanals 11 Marlas was succeeded by Budha thereafter by the plaintiffs being his legal representatives. The case of the defendants is that Raju was adopted by Teja on 23.2.1922 AD at the age of 22 years and so at the time of death of Kishna when his succession opened, Raju was in the family of Kishna and had succeeded in equal share with Budha. On the basis of the pleadings of the parties, following issues were framed by the trial Court: 1. Whether Raju predecessor-in-interest of the defendant was taken in adoption by Teja in Samvat 1968 (year 1911-12) if so, its effect? OPP. 2. Whether the mutation No.82 sanctioned on 5.11.1917 in favour of deceased Raju and subsequent revenue entries are illegal, null and void and are liable to be set aside? OPP. 3. Whether the defendants can be restrained from alienating the suit property and from interfering in the possession of the plaintiff? OPP. 4. Whether the suit is within time ? OPP. 5. Whether the suit of the plaintiff is liable to be dismissed being false and frivolous, as such? OPD. 6. Relief. The trial Court decided issues No.1 to 4 against the plaintiffs and issue No.5 in favour of the defendants and dismissed the suit. The first Appellate Court also dismissed the appeal. RSA No.3671 of 2008 -3 - Sh.Ashok Verma, learned counsel for the appellants has vehemently argued that as per the document Ex.P14, statement of Teja in the civil suit, Raju @ Rajia was living with Teja having been adopted in 1968 BK when he was brought by Teja to his village. On the strength of this statement, learned counsel for the appellants submitted that it is clearly proved that since 1968 BK coincides with 1911, therefore, Raju @ Rajia was already adopted by Teja before the death of Kishna and he could not have succeeded to his property when Kishna died in 1917 AD. I have heard learned counsel for the appellants. After giving my thoughtful consideration to the submissions made by him and on a perusal of the record, I find that there is no merit in the present appeal. The first Appellate Court has taken into account all the aspects of the matter in detail and has observed as under : “The most relevant documents, which have been produced by the parties are Ex.P25 mutation No.299, Ex.D1 gift deed executed by Teja in favour of Rajia Ex.P14 statement of Teja in a civil suit and Ex.P41 which is a mutation regarding deletion of name of Smt.Sugni in favour of Rajia after performance of Karewa. As per document Ex.D1 which is the gift deed, it has been mentioned by Teja that age of Rajia was about 22 years and he has adopted Rajia and performed the ceremonies. In this deed covenant relating to adoption is in present form and does not relate back to the year 1968 BK as alleged by the plaintiffs-appellants. This document is purported to be written on 23.9.1922, so by this document, it may be inferred that Teja had adopted Rajia as his son, just when this document was executed. But RSA No.3671 of 2008 -4 - in this document date of adoption has not been mentioned. The second document which is Ex.P25 regarding gift deed Ex.D1 above, it has been mentioned by the then Assistant Collector Second Grade, Teja had adopted Raju @ Rajia but in this document no date of adoption has been mentioned so it can not be inferred that as to when Teja had adopted Raju @ Rajia. Now remains 3rd document Ex.P14, which is the statement of Teja in civil suit. In this document date of adoption has been mentioned in initial writing. It has been mentioned that Raju @ Rajia is living with Teja from 10-11 years and Rajia was adopted in 1968 BK when he was brought by Teja in his village. In the same document Teja has deposed that he had adopted Raju @ Rajia three years back i.e. from the date of execution of gift deed Ex.D1 and in this very document Teja has deposed that Raju @ Rajia was adopted in 1977 VK and he was adopted 6/7 days prior to execution of the document Ex.D1. So this document is very ambiguous regarding date of adoption of Raju so by these three documents nothing can be gathered regarding date of adoption of Raju @ Rajia by Teja. So by the cumulative effect of these four documents it has not been proved on file as to when Raju @ Rajia was adopted by Teja resident of Dobhi. The plaintiff had filed this suit and onus of proving this fact was on the plaintiff but the plaintiff has miserably failed to prove the fact as to when Rajia was adopted by Teja. Therefore, in these circumstances the suit of the plaintiffs- appellants is liable to be dismissed. The findings of learned trial Court regarding date of adoption of Rajia which has been considered in the RSA No.3671 of 2008 -5 - year 1922 is not correct appreciation of fact but in view of the above said circumstances, the plaintiffs-appellants had miserably failed so learned trial Court has rightly decided this issue and controversy in favour of the plaintiffs-appellants. The second contention of learned counsel for the parties regarding custom by which the parties are governed or not become redundant in view of the above said findings because when Kishna died in the year 1917, the mutation was sanctioned regarding inheritance of Kishna in favour of Budha and Raju to the extent of equal share in the year 1917 which is Ex.D21. So in these circumstances, this controversy lost its importance that the parties to the suit were governed by custom or old Hindu law because in the above said facts and circumstances whether the parties were governed by custom and Hindu law, the result regarding succession would have been same, therefore, this scrutiny is not required by the Court. As far as entry in revenue record regarding succession of Kishna in favour of Raju and Budha is concerned that entries presumption of truth because no rebuttal has been produced by the plaintiffs to substantiate their contention regarding adoption of Raju before death of Kishna.” Thus, the appellants cannot be allowed to pick up a sentence or two from the statement of Teja in the document Ex.P14 without referring to the entire statement according to which the document itself has become ambiguous regarding the date of adoption. Since the burden of proof to prove this issue was upon the plaintiffs as per issue No.1, the plaintiffs have miserably failed to prove the same before both the Courts below who have RSA No.3671 of 2008 -6 - concurrently found as fact that the date of adoption of Raju @ Rajia is not 1911 but 1922 after the death of Kishna. Thus, Raju @ Rajia had also succeeded the property of Kishna before his adoption by Teja. Therefore, date of adoption of Raju @ Rajia is a question of fact which has been concurrently decided by both the Courts below in favour of the defendants and against the plaintiff. No other point has been raised by the learned counsel for the appellants. In view of the above, I do not find any question of law much less substantial involved in this appeal. Thus, the present appeal is hereby dismissed with no order as to costs. (Rakesh Kumar Jain) 14.11.2008 Judge Meenu