RSA No.4633 of 2010 (O & M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4633 of 2010 (O & M) Date of Decision: 24.05.2011 Haryana State and others ……Appellants Versus Jai Deep …...Respondent Coram: HON’BLE MR. JUSTICE L. N. MITTAL. Present: Ms. Tanisha Peshawaria, DAG, Haryana for the appellants. Mr. Rajesh Khandelwal, Advocate for the respondent. L.N. MITTAL, J (ORAL) Defendants-State of Haryana and others have filed the instant second appeal, having lost in both the Courts below. Respondent-plaintiff-Jai Deep filed suit against defendants/appellants alleging that the plaintiff is adopted son of Maman Ram, who died in harness. The plaintiff accordingly claimed compassionate appointment. Defendants denied the adoption of plaintiff by Maman Ram since deceased. Various other pleas were also raised. Learned Civil Judge (Junior Division), Hisar vide judgment and decree dated 29.07.2009 decreed the plaintiff’s suit. First appeal preferred by defendants has been dismissed RSA No.4633 of 2010 (O & M) - 2 - by learned District Judge, Hisar vide judgment and decree dated 23.07.2010. Feeling aggrieved, defendants have filed the instant second appeal. I have heard learned counsel for the parties and perused the case file. The plaintiff in order to prove his case examined Roop Chand, Clerk PW-1, who brought file of the succession petition which had been instituted by plaintiff Jai Deep against general public claiming succession certificate for the debts and liabilities of Maman Ram. Since the said petition was not contested by anybody, as no particular person was party to the said petition except general public, the same was allowed. Roop Chand proved various documents from the said file. Kishore Clerk as PW-2 proved documents from the service record of Maman Ram since deceased. The plaintiff himself appeared as PW-3 and broadly stated according to his version. On the other hand, defendants examined Rajbir Singh DW-1 Deputy Superintendent. He broadly stated according to defendants’ version. Plaintiff’s case is based on succession certificate and unregistered adoption deed dated 17.01.2003. As regards succession certificate, defendants herein were not made party to the succession petition. Consequently, merely on the basis of order passed in the succession petition, it cannot be said that RSA No.4633 of 2010 (O & M) - 3 - plaintiff is adopted son of Maman Ram. On the basis of succession certificate, the plaintiff is certainly entitled to receive debts due to Maman Ram, but the plaintiff cannot be held to be adopted son of Maman Ram for the purpose of the instant suit. As regards adoption deed, the same is unregistered one. Consequently, presumption under Section 16 of the Hindu Adoption and Maintenance Act, 1956 is not attached to the unregistered adoption deed. Moreover, the plaintiff has not proved the alleged adoption deed by examining any witness thereof. Roop Chand, Clerk PW-1 proved certified copy of the adoption deed from the file of succession petition. However, Roop Chand, Clerk could not prove execution of the adoption deed by Maman Ram. Execution of the adoption deed by Maman Ram could be proved by examining some witness of the adoption deed, but the plaintiff has not examined any witness of the adoption deed to prove its execution. Faced with the aforesaid situation, counsel for the appellants contended that affidavits of Mangat Ram, Sher Singh and Krishan produced in succession case have been proved and these affidavits prove execution of the adoption deed by Maman Ram. The contention is untenable. Deponents of the aforesaid affidavits have not been examined as witnesses in the instant suit and consequently, defendants had no opportunity for cross-examining them. Their affidavits tendered in the RSA No.4633 of 2010 (O & M) - 4 - succession case cannot be read in evidence in the instant suit without examination of the deponents as witnesses in the instant suit. It is thus apparent that execution of alleged adoption deed by Maman Ram has not been proved. Plaintiff has also not examined any witness of the factum of adoption in the instant suit. Self serving statement of the plaintiff is not sufficient to prove the alleged adoption. There is practically no legal evidence to prove alleged adoption of plaintiff by Maman Ram. It would also not be out of place to notice here that the adoption deed was executed just 12 days before the death of Maman Ram. At that time, the plaintiff was much above the age of 15 years and could not be legally adopted in view of the provisions of the Hindu Adoptions and Maintenance Act. For the reasons aforesaid, I find that plaintiff has miserably failed to prove that he is adopted son of Maman Ram. Finding of the Courts below to the contrary is patently perverse and illegal and is based on complete misreading and misappreciation of evidence. The said finding is, therefore, liable to be set aside in exercise of second appellate jurisdiction because it raises substantial questions of law for adjudication in this second appeal. RSA No.4633 of 2010 (O & M) - 5 - As a necessary consequence of the aforesaid discussion, the instant second appeal is allowed. Judgments and decrees of the Courts below are set aside. It is held that plaintiff is not proved to be adopted son of Maman Ram since deceased. Consequently, the plaintiff is not entitled to compassionate appointment in lieu of death of Maman Ram. Consequently, suit filed by the plaintiff stands dismissed. (L. N. MITTAL) JUDGE 24.05.2011. A.kaundal