IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 2474 of 2008 Date of Decision: 12.5.2009 Udai Singh ...Appellant. Versus Mukesh and others ...Respondents. CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL. PRESENT: Mr. Baljinder Singh, Advocate for Mr. K.S. Dhaliwal, Advocate for the appellant. AJAY KUMAR MITTAL, J. In terms of order dated February 4, 2009, cost of Rs.5000/- has been deposited by the learned counsel for the appellant with the Haryana State Legal Services Authority, Chandigarh and a photo copy of the receipt has been placed on the record. Being unsuccessful before the courts below, plaintiff No.1 has approached this Court by way of present regular second appeal against the judgment and decree dated 13.10.2007 passed by the first appellate court affirming that of the trial court dated 31.8.2005 whereby the suit of the plaintiffs for declaration and permanent injunction was dismissed. Put succinctly, the facts of the case are that defendant No.2 is the real brother of the plaintiffs whereas defendant No.1 is son and defendant No.3 is the wife of defendant No.2. It was pleaded that R.S.A. No. 2474 of 2008 -2- Parkash alias Om Parkash, the real brother of the plaintiffs and defendants No.2 and 4, was owner in possession to the extent of 1/4th share of the agricultural land measuring 130 kanals 3 marlas comprised in khewat No.108, khatauni No. 137, situated within the revenue estate of village Nidana, Tehsil and District Jind (hereinafter referred to as the “suit land”). He was unmarried and was residing with the plaintiffs and defendants No.2 to 4 and after his death the plaintiffs as well as defendants No.2 to 4 along with their sister became owners in possession of the suit land in equal shares. During the life time of deceased Om Pakash, the plaintiffs and defendants No.2 and 4 were cultivating the suit land in equal shares. It was further pleaded that defendants No.2 and 3 had got executed and registered the adoption deed dated 28.10.1991 whereby said Om Parkash allegedly took defendant No.1 in adoption which was illegal, null and void, based upon fraud and misrepresentation and was not binding on the rights of the plaintiffs because no ceremonies of adoption were ever performed; at the time of execution of the adoption deed, defendant No.1 was major and could not be legally adopted by deceased Om Parkash and that though the same was executed on 26.10.1991 but was got registered on 28.10.1991 in collusion with the officials of the Sub-Registrar, Jind. It was next pleaded that by taking the benefit of illness of deceased Om Parkash, defendants No.2 and 3 got his thumb impressions on some blank papers and later on used the same for preparing a forged and fabricated adoption deed. Even the father's name of deceased Om Parkash and the father's name of defendant No.2 were wrongly mentioned in the adoption deed. On the basis of the aforesaid adoption R.S.A. No. 2474 of 2008 -3- deed, the defendants had got mutation dated 26.6.1997 qua the property left by deceased Om Parkash sanctioned in favour of defendant No.1 which was also illegal, null and void as the same was sanctioned at the back of the plaintiffs and no opportunity of personal hearing was afforded to the plaintiffs. According to the plaintiffs, the said adoption deed was executed only to deprive them of their right to inherit the property of Om Parkash. The plaintiffs requested the defendants a number of times to get the aforesaid adoption deed as well as the mutation cancelled but they did not pay any heed to their request which gave rise to the filing of the suit for declaration. Upon notice, defendants No.1 to 3 contested the suit by filing a joint written statement raising various preliminary objections whereas defendant No.4 filed a written statement admitting the claim of the plaintiffs. It was pleaded that defendant No.2 was the brother of the plaintiffs and defendant No.3 was the wife of defendant No.2 but defendant No.1 who was the natural son of defendants No.2 and 3 was no more their son on account of having been adopted by deceased Parkash alias Om Parkash. It was further pleaded that the deceased Om Parkash was unmarried who used to reside separately from his brothers and he adopted defendant No.1 as his son. Deceased Om Parkash was in cultivating possession of the suit land being owner during his life time and after his death, defendant No.1 had been in actual physical cultivating possession of the same as absolute owner being the adopted son of deceased Om Parkash. The adoption deed was executed on 25.10.1991 but was got registered on 28.10.1991 before the Sub-Registrar, Jind by the deceased himself. According to R.S.A. No. 2474 of 2008 -4- the answering defendants the adoption deed as well as the mutation were legal and valid and binding on the rights of the plaintiffs. The other averments made in the plaint were denied and a prayer for dismissal of the suit was made. On the pleadings of the parties, the trial court framed various issues and on appreciation of the oral as well as the documentary evidence led by the parties held that the adoption deed dated 28.10.1991 was not illegal, null and void and was not based on fraud and misrepresentation and that the mutation dated 26.6.1997 sanctioned on the basis of the aforesaid adoption deed was also not liable to be set aside. Further, it was held that defendant No.1 was the adopted son of deceased Om Parkash and was in cultivating possession of the same. Accordingly, the trial court vide judgment and decree dated 31.8.2005 dismissed the suit of the plaintiffs holding further that the plaintiffs were not entitled to the consequential relief of permanent injunction. Feeling aggrieved, the plaintiffs took the matter in appeal and the lower appellate court vide judgment and decree dated 13.10.2007 affirmed the findings recorded by the trial court and dismissed the appeal. I have heard the learned counsel for the appellants. No illegality or perversity could be pointed out by the learned counsel for the appellants in the findings recorded by the trial court and affirmed by the appellate court. Further, no misreading or misappreciation of the evidence available on record has been shown by the learned counsel for the appellants warranting interference by this court in the regular second appeal. The courts below had recorded a R.S.A. No. 2474 of 2008 -5- finding of fact that the adoption deed dated 28.10.1991 was legal and valid and defendant No.1 had rightly inherited the suit land being Class I heir of deceased Om Parkash. Further, the courts below had recorded a concurrent finding of fact that the suit of the plaintiffs was not maintainable and that they had no locus standi to file the suit. No question of law, much less a substantial question of law arises in this appeal. In view of the above, there is no merit in this appeal and the same is hereby dismissed. There shall, however, be no order as to costs. May 12, 2009 (AJAY KUMAR MITTAL) gbs JUDGE C.M. No. 7240-C of 2008 IN RSA No. 2474 of 2008 Present: Mr. Baljinder Singh, Advocate for Mr. K.S.Dhaliwal, Advocate for the appellant. **** This is an application under Section 151 of the Code of Civil Procedure for condonation of 44 days' delay in refiling the appeal. After hearing the learned counsel and perusing the application which is supported by an affidavit, the delay of 44 days in refiling the appeal is condoned. CM stands disposed of accordingly. May 12, 2009 (AJAY KUMAR MITTAL) gbs JUDGE