IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 53 of 1997 Reserved on : 16th July, 2008 Date of Decision: 25th July, 2008 Balak Ram Appellant-plaintiff Versus Het Ram (D) through his LRs Smt. Devki Devi and others Respondents-defendants Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? Yes. For the appellant: Mr. Bhupinder Gupta, Sr. Advocate, with Mr. Janesh Gupta, Advocate. For the respondent: Mr.G.D.Verma, Sr. Advocate, with Mr.B.C.Verma, Advocate. Sanjay Karol, J. This second appeal is directed against the judgment and decree dated 24.12.1996 passed by Additional District Judge, Shimla, HP in Civil Appeal No. 48-S/13 of 1992, titled as Shri Het Ram vs. Shri Balak Ram, reversing the judgment and decree dated 3.1.1991, passed by Sub Judge, Ist Class, Theog, District Shimla, HP, in Civil Sit No. 254/1 of 1988, titled as Shri Balak Ram vs. Shri Het Ram. Shri Balak Ram, the appellant herein, as plaintiff filed a suit against Shri Het Ram, defendant and original respondent herein. During the pendency of the present appeal, Shri Het Ram expired and his legal Whether the reporters of Local Papers are allowed to see the Judgment? 2 representatives were brought on record. For the purpose of reference, appellant Shri Balak Ram is referred to as plaintiff and original respondent Shri Het Ram is referred to as the defendant. The plaintiff filed a suit for declaration and injunction and in the alternative for joint possession with respect to half share, in land comprised in Khasra No. 147/7, 149/10, 151/11, 153/12, 155/30, Kitas 5, measuring 26 Bighas 18 Biswas, situated in Chak Pansejal, Pargana Jais, Tehsil Theog, District Shimla, H.P. (total land, hereinafter referred to as the suit land). In terms of sale deed dated 17.2.1969, plaintiff purchased half share in the suit land from its owner Shri Hira son of Shri Jai Singh (hereinafter referred to as the seller). The registration of sale deed was objected to by the legal heirs of seller but eventually pursuant to the orders passed by the authorities the same was registered on 12.3.1979. The plaintiff desired to seek partition of the land but since the defendant was shown to be in exclusive possession and ownership of the suit land, no partition could take place, which necessitated filing of the suit. The defendant resisted the suit, inter alia, stating (a) Shri Hira had not sold the land in question to the plaintiff; (b) In any case he was not competent to sell the same in view of compromise decree dated 2.5.1968 passed by Sub Judge, Theog, in Civil Suit No. 40/1 of 1968; (c) the plaintiff’s sale deed has been wrongly registered by the Registrar; (d) the successors-in-interest/legal heirs of Shri Hira, the seller, Smt. Chai and Smt. Malaki had sold the share in the land for a valuable consideration to the defendant and as such the land also stood mutated in his name in the revenue record (e) The other co-sharer Shri Konl Ram son of Shri Jai Singh had also sold his half share in the suit land to the defendant, thus the 3 defendant was in the exclusive ownership and possession of the entire suit land since the year 1969 and (f) in the alternative the defendant by virtue of long, uninterrupted and hostile possession had perfected its title on the basis of adverse possession. Based on the pleadings of the parties of the parties, the trial Court framed the following issues:- “1. Whether the plaintiff is owner of suit land to the extent of ½ share as alleged? OPP 2. Whether the plaintiff is in joint possession over the suit land as alleged? OPP 3. Whether the plaintiff is entitled to joint possession of the suit land in the alternative as prayed? OPP. 4. Whether the defendant is owner in possession of entire suit land as alleged in para No.2 of the written statement? OPD. 5. Whether the defendant in alternative has become owner of half share of suit land by way of adverse possession as alleged in para 2 of written statement? OPD. 6. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD. 7. Relief.” The plaintiff examined himself as PW-1 and got exhibited sale deed Ext.P-1 and also affidavit Ext.P-2 executed by the seller evidencing the sale. Shri Shiv Singh (PW-2) scribe and Shri Kanshi Ram (PW-3) witness to the sale deed were also examined. In support of its case, the defendant examined himself as DW-1, Shri Durga Singh (DW-2), Hari Ram son of Shri Dhan Singh (DW-3), Shri Hari Ram son of Shri Hira Ram (DW-4), Shri Balak Ram (DW-5), Shri K.R.Kashyap, Advocate (DW-6). 4 The defendant got exhibited the copy of judgment dated 2.5.1968 (Ext.D-6) and decree sheet (Ext.D-7) passed in Civil Suit No. 40/1 of 1968. The revenue record (mutation) showing the sale of land by Smt. Chai and Smt. Malaki (successor in-interest of Shri Hira Ram) were exhibited as Ext.D-1 to Ext.D-5. The deed of adoption Ext.DW-6/A evidencing the adoption of Shri Hari Ram (DW-4) by Shri Hira Ram (the seller), who sold the land to the plaintiff, was also placed on record. Appreciating the material on record, the trial Court decreed the plaintiff’s suit holding him to be in joint ownership and thus in possession to the extent of half share of the suit land, entitling him to seek partition of the land by metes and bounds and permanently restraining the defendant from ousting the plaintiff to the extent of his share. The trial Court held that the plaintiff’s witnesses PW-1, PW-2 scribe, PW-3 witness to the sale deed, had sufficiently proved that the seller had sold his share to the plaintiff in the suit land. The Court found that since neither the plaintiff nor the defendant were party to the previous litigation, therefore, the same was not binding on the plaintiff, particularly, since only Smt. Chai and Smt. Malaki as successors-in-interest inherited the estate of the seller to the exclusion of Shri Hari Ram the adopted son of the seller. Shri Hari Ram, the adopted son of the seller, hereinafter is referred to as the adopted son. The Court also found that since Shri Hari Ram (DW-4), the adopted son had not made any grievance with regard to non-compliance of the compromise decree, therefore, the challenge to the seller’s competency was not sustainable. The sale deed Ext.P-1, registered in the year 1979 was held to be valid and binding amongst the parties. The trial Court found that the defendant had neither pleaded nor proved the ouster of 5 the plaintiff from the suit land and, therefore, the defendant’s plea of having perfected its title by way of adverse possession was not tenable in law. In an appeal, the defendant succeeded and the first appellate Court dismissed the plaintiff’s suit while reversing the judgment, decree passed by the trial Court. The Court held that the defendant’s witnesses Shri Het Ram (DW-1), Shri Durga Singh (DW-2), Hari Ram son of Shri Dhan Singh (DW-3), Shri Hari Ram son of Shri Hira Ram (DW-4) (the adopted son), Shri Balak Ram (DW-5), Shri K.R.Kashyap, (DW-6) had proved that DW- 4 stood legally adopted by the seller and that the defendant was in possession of the suit land since 1969 onwards. The Court found that in view of the condition imposed in the deed of adoption Ext.DW-6/A and compromise decree Ext.D-7, the seller was restrained from transferring the land in favour of the plaintiff. It was held that DW-4 and DW-6 had proved the adoption and the plaintiff had failed to disprove the adoption as required under Section 16 of the Hindu Adoptions & Maintenance Act, 1956 (hereinafter referred to as the Adoption Act). The Court also held that plaintiff’s father also known as Shri Konl Ram was a party to the earlier litigation and also the consent decree and, therefore, it was he who had devised this mechanism of getting the sale deed executed in favour of his son so as to over come the consent decree. The Court further held that the defendant had purchased the whole of the suit land in the year 1969 itself, but however, also held that since the plaintiff’s sale was held to be invalid and non est, therefore, the defendant who had repudiated the plaintiff’s title from day one had also become owner by way of adverse possession as the 6 defendant’s possession was hostile to the plaintiff. Accordingly, the plaintiff’s suit was dismissed. Assailing the said judgment and decree the present appeal was admitted on the following substantial questions of law:- “1. Whether the adoption which is absolutely in contradiction of Section 10 of the Hindu Adoptions and Maintenance Act can be held to be valid on the basis of oral evidence or the fact that the said document evidencing such adoption has been registered which has presumption under Section 16 of the Hindu Adoptions and Maintenance Act, 1956? 2. Whether the learned lower Appellate Court erroneously held that defendant-respondent is in adverse possession, when no pleadings of adverse possession, ouster by co-sharer were proper nor the evidence in this regard was available? 3. Whether the learned lower Appellate Court has erroneously and in a highly perverse manner rendered the findings holding the sale deed Exhibit P-1 to be non est, what relevance or impact the consent decree has in previous suit to which the plaintiff was neither a party nor was claiming through the persons who was party to the said litigation on the title of the plaintiff? 4. Whether the title of the defendant qua the half share of land alleged to have been purchased from the successor in interest Shri Hira could have been upheld on the reasoning given in the judgment; are such findings in contradiction to the findings rendered for setting aside the Exhibit P-1?” I have heard the learned counsel for the parties and also perused the record. 7 From the material on record, the following facts emerge:- 13.7.1961 - Vide deed of adoption (Ext.DW-6/A), Shri Hari Ram (DW-4) was adopted by Shri Hira son of Shri Jai Singh. 7.3.1968 – Shri Hari Ram, the adopted son filed a suit restraining his father Shri Hira (seller) from transferring the land owned by him. The suit was compromised vide compromise deed (Ext.DW-4/B) and consent order Ext.D-6 and consent decree Ext.D-7 was passed on 2.5.1968 conditionally restraining the seller from alienating the suit land. However, the decree was to be ineffective if Konl Ram defendant No.3 therein and father of the plaintiff was to pay a sum of Rs.2000/- to the adopted son upto Asuj 2025 B.K. and the seller was free to alienate the land. 17.2.1969 - Shri Hira (seller) sold his half share in the suit land to the plaintiff vide sale deed Ext.P-1. 24.2.1969 – Shri Konl Ram son of Shri Jai Singh (brother of the seller and a co-sharer in the suit land) sold his half share to the defendant for a valuable consideration vide registered sale deed, which is evident from revenue document Ext.D-1. With the death of Shri Hira (seller), his estate, property stood mutated in the name of his legal heirs Smt. Chai and Smt. Malaki. 4.7.1969 - Smt. Chai transferred her 1/4th share in the suit land in favour of defendant for a valuable consideration as is evident from record Ext.D-4. 25.6.1971 - Smt. Malaki transferred her 1/4th share in the suit land in favour of defendant for a valuable consideration vide registered sale deed as is evident from revenue record Ext.D-2. 8 Thus the defendant was put into possession of the entire suit land. 12.3.1979 – Plaintiff’s sale deed Ext.P-1 was finally registered pursuant to the orders passed by the Registrar. 1.3.1988 – Plaintiff’s suit in question was filed seeking a declaration, injunction and possession. Adoption not valid Section 5 of the Adoption Act clearly stipulates that no adoption shall be made except in accordance with the provisions contained in Chapter-II and any adoption made in contravention thereof shall be void. Section 10 clearly provides that no person, who is either married or above the age of 15 years shall be taken into adoption, unless and until there is a custom or usage, applicable to the parties which permits persons to be taken in adoption. Section 16 raises a presumption in favour of adoption, in compliance of the provisions of the Act, unless and until it is disproved. The deed of adoption (Ext.DW-6/A) was registered. Undisputedly, Shri Hira (the seller) was 80 years of age and Shri Hari Ram (the adopted son) was married and 30 years of age as on the date of adoption. A one page deed, inter alia, contains the following recitals:- “I, Hira hereby agree that I shall not alienate the immoveable property now owned by me in any manner without the previous permission of Shri Hari Ram in writing That Shri Hari Ram is married and is about 30 years of age but there is custom and usage which is applicable to the parties, which permit the parties to adopt a person already married or more than 30 years.” 9 No doubt, DW-4 has deposed that the ceremony of adoption, which had been completed was reduced into writing, but, however, his testimony is conspicuously silent with regard to custom or usage applicable to the parties permitting the adoption of a person, who is married or above 15 years of age. DW-6 the scribe to Ext.DW-6/A has simply stated that he drafted the said deed and the same was signed by the concerned parties. This is the only evidence with regard to adoption. Except for the recital in the deed of adoption that there is a custom and usage applicable to the parties, there is nothing on record to substantiate or prove the same. Importantly none of the attesting witnesses to the adoption deed was examined to prove the adoption deed. The Apex Court in Jai Singh vs. Shakuntala, (2002) 3 SCC 634, has held that while it is true that the registered instrument of adoption presumably stands out to be taken to be correct but the court is not precluded from looking into it upon production of some evidence contra the adoption. The evidence, which is made available to the court for rebutting the presumption, can always be looked into. It is admitted case of the defendant that after the death of Shri Hira, (the seller) Smt. Chai and Smt. Malaki alone succeeded to his estate. There is nothing on record to substantiate that the seller had either disowned his adopted son or that the deceased had left a Will excluding him from the estate. There is nothing on record to show why the adopted son was excluded from inheritance. It is not the case of the parties that the adopted son was taking care of and looking after the seller. In fact both of them had been litigating over property. The relations were not cordial. This also casts a doubt about the valid adoption. 10 In my view, the statutory presumption would arise only and only if the conditions stipulated under Section 10 of the Adoption Act stand complied with. In the absence of the same, the adoption is statutorily held to be void under Section 5 of the Adoption Act and the instrument evidencing the same would be of no consequence. Mere recital or registration of a document by itself would not be a proof enough to show that mandatory requirement as stipulated under Section 10 (iii) and (iv) stands complied with. It was incumbent upon DW-4 to have deposed and narrated, substantiated or explained the custom and usage governing the parties showing that it was open for the parties to have adopted a married and an adult son. There is no whisper about the same. Therefore, it cannot be said that Ext.DW-6/A is a valid deed of adoption or any presumption can be raised thereto. The first Appellate Court itself decided the question of adoption by going into the validity thereof. The learned Judge has seriously erred in holding that plaintiff Balak Ram could not have contested the adoption of DW-4. Substantial question of law No.1 is answered accordingly. Validity of plaintiff’s sale deed Compromise decree dated 2.5.1968 (Ext.D-7) is to the effect that the seller is restrained from alienating his share in the suit land, subject to defendant No.3 therein paying a sum of Rs.2000/- to the plaintiff (the adopted son). The said decree is a decree in personam and not in rem, binding the parties to the suit. 11 Be that as it may be the fact of the matter is that the adopted son (DW-4), who was the plaintiff in the said suit, in the present proceedings has not deposed anything with regard to non-compliance of the terms of the said decree. Importantly, the sale deed executed between the seller in favour of the plaintiff was not challenged in any civil proceedings by any of the parties to the previous litigation. No doubt, the adopted son had raised objection before the Registrar with regard to registration of sale deed Ext. P-1, but however, in spite of his objection and also the objection of Smt. Chai, the Registrar, Shimla, in terms of its order dated 21.10.1978 directed the Sub Registrar to register the sale deed. The contesting parties accepted the same and did not assail any further. Importantly, the objection taken by DW-4 was not that the seller by virtue of the consent decree (Ext.D-7) had been restrained or that the terms contained therein had not been complied with by the parties to the said decree. Therefore, there was no bar in the transfer of the land by the seller in favour of the plaintiff. The seller being otherwise competent had validly transferred the land by a registered document for a valuable consideration in favour of the plaintiff. It is not the case of any of the parties/ legal heirs of the seller or the adopted son that execution of the sale deed was by an act of fraud, coercion or misrepresentation. Both PW-2 and PW-3 have proved that the sale deed was prepared at the instance of the seller and the contents of the documents were read over and explained to him and he signed as such. Part of the sale consideration was paid to the seller. The ratio of law laid down by the Apex Court in Sait Tarajee Khimchand and others v. Yelamarti Satyam and others, AIR 1971 SC 1865, pressed by Mr. G.D.Verma, learned counsel for the respondent herein 12 to contend that mere marking of a document as an exhibit does not dispense with its proof in the facts of the present case is inapplicable as the original of the sale deed was brought in the Court and photocopies were exhibited only after seeing the same. Ext.P-1 duly stands proved to have been validly executed by the seller. In this view of the matter, it cannot be held that the same is non est. As per order dated 2.3.1979 while registering the sale deed, a sum of Rs.1900/- was additionally deposited by the plaintiff in the Government Treasury. This was so done as Rs.1900/- was required to be paid as per the sale deed. The plaintiff was under no obligation to do so as in the absence of any challenge to the sale deed the only remedy with the seller or his successors-in-interest was to recover the amount by way of filing of Civil Suit. The first Appellate Court has been extremely presumptuous in holding that Shri Konl Ram father of the plaintiff wanted to wriggle out of the judgment and consent decree dated 2.5.1968, therefore, “the sale deed Ext.P-1 has been designed to frustrate the judgment and decree dated 2.5.1968”. As has already been noticed, the execution of the sale was not objected to by the parties to the previous litigation on the ground that the terms of the consent decree had not been complied with. It is quite apparent that half share was sold, during the pendency of the registration proceedings, and, therefore, the sellers had objected to the registration. In my view, the trial Court has seriously erred in recording that the adopted son has deposed that Shri Balak Ram, plaintiff’s father had not complied with the terms and conditions of the judgment and decree 13 dated 2.5.1968. This is not borne out from the record. For the aforesaid reason, the decision referred to and relied upon by Shri Verma, learned senior counsel for the respondent as reported in Surjit Singh and others. v. Harbans Singh and others, AIR 1996 SC 135, that alienation in defiance of the restraint order would not be permitted as it would defeat the ends of justice and prevalent public policy, in my view, is also not applicable in the facts of the present case. The learned Judge further erred in holding that while directing the registration of sale deed Ext.P-1, the Registrar had not taken into account the consent decree dated 2.5.1968. Here again the Court has been presumptuous. It was not the case of the contesting parties before the Registrar that the said fact had been brought to his notice. It is true that the defendant had purchased half share belonging to Shri Konl Ram on 24.2.1969 and was put in possession thereof. The same was not a subject matter of challenge by the plaintiff in the suit. It has also been proved that other half share belonging to Shri Hari Ram, which had vested in favour of Smt. Chai and Smt. Malaki also stood transferred for a valuable consideration in favour of defendant as is evident from revenue record Ext. D-4 and Ext.D-2. However, these sales are subsequent to the sale made in favour of the plaintiff. The plaintiff’s sale is held to be valid. The contention on behalf of the defendant that he was a bonafide purchaser having purchased the land for a valuable consideration is unacceptable. It is not that the defendant was a stranger and not aware of the sale Ext.P-1. Smt. Chai and DW-4 had raised objection to the registration of the sale deed and sale by her to the defendant is only thereafter. He purchased the land from the parties to the earlier litigation. 14 The registration of the document has to relate back to the date of execution and even if the seller had expired on the date of registration, it would not matter as his legal heirs and successors-in-interest had been objecting to the same and in spite of their objection and in their presence the document was ordered to be registered. [Milkha Singh and another vs. Tara Singh and others, AIR 1973 P&H 445; Jangi v. The Board of Revenue, U.P., AIR 1981 All. 191]. It is correct that in the revenue record the defendant has been shown as the owner of the half share originally owned by the seller, but, however, that fact by itself would not defeat the plaintiff’s right. The plaintiff filed the suit in question yet the defendant did not assail the plaintiff’s sale. That the decree was satisfied has not been pleaded by the plaintiff, but, however, it is equally true that the party to the previous litigation has not come forward disputing the same on this ground. Therefore, in my view any subsequent sale or preparation of the revenue entries on the basis thereof would have no effect on the validity of the sale Ext.P-1. The plaintiff is owner to the extent of half share belonging to Shri Hari Ram in the suit land. The challenge to the sale deed Ext.P-1 on the ground that the seller was not competent to sell the land in view of restriction imposed in adoption deed Ext.DW-6/A and also consent decree Ext.D-7 is untenable in law. The Court has misconstrued the provisions of Adoption Act and wrongly attached presumption to the adoption deed. 15 Substantial questions of