IN THE HIGH COURT OF JUDICATURE AT PATNA First Appeal No.9 of 1986 ==================================================== 1. Smt.Shakuntala Singh, Wife of Sri Rameshwar Prasad Singh. 2. Sri Rameshwar Prasad Singh, Son of Ramautar Prasad Chaudhary. Both residents of Mohalla-Kathalbari, Khanjarpur, Police Station- Barari, Disttrict-Bhagalpur--- (Defendants 1st party) 3. Mostt. Kalabati Devi, Wife of deceased Nandalal Bhagat. 4. Dayanand Bhagat. 5. Adityanand Saini Mali. Sons of deceased Nand Lal Bhagat. All residents of Mohalla-Naya Gauan, Police Station-Jamalpur, District- Monghye(Defendants 2nd party) .... .... Appellant/s Versus 1. Smt.Kishni Devi, Wife of Sri Prashottam Tibriwal, Resident of Village- Mahgama, Police Station-Mahgama, District- Santhal Parganas. 2. Bindo Kumar Dhandhania, Son of Late Kashi Ram Dhandhania, resident of Mohalla-Patel Babu Road, Bhagalpur. .... .... Respondent/s ==================================================== Appearance: For the Appellant/s : Mr. S.S.Dwivedi, Sr.Adv. with Mr. Gopal Prasad Roy, Adv. For the Respondent/s: Mr. T.N.Matin,Sr.Adv.with Mr. Ramadhar Singh,Adv. ==================================================== CORAM: HONOURABLE MR. JUSTICE V. NATH ORAL JUDGMENT Date: 17.10.2012. The defendants in T.S. No. 68 of 1980 of the court of Additional District Judge II, Bhagalpur are the appellants in this appeal assailing the judgment and decree dated 18th October 1985 by which the said suit has been decreed declaring the title of the plaintiff over the suit property and holding her entitled to the recovery of possession of the same from the defendant-1st set. The broad essential facts of the case of the plaintiff are this:- Patna High Court FA No.9 of 1986 dt.20-09-2012 2 Mulchand Ram Kishorpuria was the recorded owner of 2 Bighas and 5 Kathas of homestead land of Holding No. 58 (old), 39 (new) in Moti Kochwan Lane, Ward No. 1, Circle No. 2 of Bhagalpur Municipality. His adopted son Bansidhar Kishorpuria executed a registered sale deed dated 23.12.1935 transferring the said property to Sri Paliram Singhania, who came in possession after the purchase and got his name mutated in the records of Bhagalpur Municipality as well as in the records of the ex-landlord for the purchased properties. The plaintiff Kishni Devi is one of the two daughters of Paliram Singhania. Paliram Singhania transferred some of the properties of his share (not the suit properties), allotted to him in partition with his son, to his two daughters by the registered deed of gift dated 03.03.1958 and put the donees in possession. Paliram Singhania died on 18.03.1958 leaving behind four sons and two daughter as his heirs, and thereafter a partition, by way of family arrangement, was done among the four sons on 16.02.1961 wherein the 2 Bighas and 5 Kathas of homestead land, commonly known as „Bagicha‟ (Garden), was allotted jointly to the share of only three sons. Immediately thereafter, the said three sons exchanged the said homestead land and „Bagicha‟, allotted to their share, with the property gifted to the two sisters. The two sisters, namely, Kishni Devi, and Shanti Devi thus acquired exclusive title over the homestead land and Bagicha, got their names mutated in municipal registers with regard to the same, Patna High Court FA No.9 of 1986 dt.20-09-2012 3 paid rent and obtained rent receipts. The plaintiff, later on, amicably partitioned the said property with her sister and in that partition the eastern block of half of the homestead land and Bagicha came to the share of the plaintiff and other half i.e. western block was allotted to the share of her sister. A map was also prepared showing the division of shares between the two sisters and an agreement to this effect was also executed on 01.08.1970 between them. The plaintiff thereafter sold portions of her allotted half share to different persons who have been coming in possession of their purchased land, after making constructions and getting their names mutated in the municipality as well as the Anchal Office of the State of Bihar and only 10 katha of the land, after the said transfers, has remained with the plaintiff which is the suit land. The sister of the plaintiff had also sold away her entire share and the purchasers are in possession after constructing their respective house over the same. The defendant no. 4 Dayanand Bhagat, however, filed appeal against the mutation order in favour of the plaintiff wherein he claimed himself to be Nati (daughter‟s son) of Ram Phal Bhagat Mali and further claimed that Mulchand Ram Marwari had, by oral gift, given the entire land i.e. 2 Bigha 10 kathas to Ramphal Bhagat Mali as he had installed an idol of the „Sheetla‟ on the said land. However, the appeal was dismissed finding the plaintiff in possession of the suit land and thereafter the revision of the defendant no. 4 was also Patna High Court FA No.9 of 1986 dt.20-09-2012 4 dismissed. The defendant no. 4 also got initiated proceedings under 144 Cr.P.C. raising dispute over the suit land. Thereafter, the defendant second party, claiming themselves to be the heirs of Ramphal Bhagat Mali, executed a registered sale deed on 30.06.1976 in favour of the defendant No. 1 with regard to the suit property who made attempt to take possession over the same which led to a proceeding under Section 144 Cr.P.C. In the municipal survey records of right, the name of the defendant 1st set was however collusively entered by the survey authorities and the plaintiff‟s objection was rejected but the plaintiff has challenged the order in appeal. Similarly, the order of mutation in favour of defendant 1st set has been challenged by the plaintiff in the appeal. The plaintiff, thus, has claimed exclusive title over the suit land and denied the right, title and interest of the defendants over the suit land and filed the suit for declaration of her title and for declaration that the defendant 1st set have not acquired any title over the suit land on the basis of the sale deed dated 30.06.1976 executed by the defendant 2nd set. The relief for confirmation of possession or in the alternative for recovery of possession has also been sought for. The defendant 1st set and defendant 2nd set have filed joint written statement, denying the assertions and claim of the plaintiff, by mainly pleading the following facts: Mulchand Ram was the original owner of Holding No. 58 Patna High Court FA No.9 of 1986 dt.20-09-2012 5 (old), 39 (new), Moti Kochwan Lane, Bhagalpur. The entire plot of land measuring 2 Bigha 5 katha originally belonged to Budhan Paswan and others who sold 2 Bigha and 1 katha to Mulchand Ram by a registered sale deed dated 20th December 1913. Thereafter, Mulchand Ram got his name mutated in the Bhagalpur Municipality and the said mutation continued up till 1939-40. Mulchand Ram dedicated the said land to „Shitala Asthan‟ with Ramphal Bhagat Mali in occupation of the same for performing Puja etc.. Ramphal Bhagat Mali had continued in possession of the entire land and became absolute owner of the same by the law of prescription and adverse possession. After the death of Ramphal Bhagat Mali, the defendant 2nd set, who are his heirs, have continued in possession over the same on the basis of inheritance. The adoption by Mulchand Ram of Bansidhar Kishorpuria as his son has been specifically denied with further denial that Mulchand Ram had no name as Mulchand Ram Kishorpuria. In this manner, the acquisition of title over the said land by Paliram Singhania, the father of the plaintiff, through purchase by sale deed dated 23.12.1935 from Bansidhar Kishorpuria, has been denied asserting that Bansidhar Kishorpuria had no title over the properties of Mulchand Ram, and consequently the right, title and interest of the plaintiff over the suit land have also been denied. The defendants have asserted that the defendant no. 1 has purchased the suit land by registered sale deed Patna High Court FA No.9 of 1986 dt.20-09-2012 6 dated 30th June 1976 from the defendant 2nd set and has come in possession over the same as owner thereof. In view of the rival pleadings of the parties, the learned court below has framed altogether eleven issues out of which issue nos. 5, 6, 7, 8, 9 and 10 which were the material issues are as follows:- Issue no. 5:- Whether Mulchand Ram Kishorpuria and Mulchand Ram Marwari are one and the same man or they are two different persons? Issue no. 6:- Is the story of adoption of Banshidhar Kishorpuria by Sri Mulchand Ram Kishorpuria as claimed by the plaintiff correct? Issue no. 7:- Is the sale deed dated 23.12.35 executed by Banshidhar Kishorpuria in favour of Paliram Singhania in respect of 2 Bigha 5 dhur of homestead land bearing Holding No. 58 (old) 39 (new) of Moti Kochwan Lane in Mohalla Khanjarpur of the town of Bhagalpur a valid document and was acted upon? Issue no. 8:- Had Ramphal Mali acquired any right, title or possession over 2 bighas and odd land? Issue no. 9:- Whether Smt. Shakuntala Singh the defendant no. 1, acquired any right, title or interest over the suit land by virtue of the sale deed dated 30.06.76? Issue no. 10:- Has the plaintiff got any subsisting title to Patna High Court FA No.9 of 1986 dt.20-09-2012 7 the suit land and is the plaintiff entitled for the decree of confirmation of possession or in the alternative for the recovery of possession of the suit land as claimed by her?. After hearing the parties and scrutinizing their pleadings and evidence, the learned court below has come to the finding that Mulchand Ram Marwari and Mulchand Ram Kishorpuria was one and the same person. It has further been found that Mulchand Ram Kishorpuria had adopted Bansidhar Kishorpuria as his son and accordingly issue nos. 5 and 6 were decided in favour of the plaintiff. The learned court below has further come to the conclusion that the sale deed dated 23.12.1935 in favour of Paliram Singhania was a legally valid document and had been fully acted upon and accordingly issue no. 7 has also been decided in favour of the plaintiff. It has been finally held that Ramphal Bhagat Mali did not acquire right, title or interest over 2 Bigha and odd Kathas of land and consequently the defendant no. 1 also has not acquired right, title and interest over the suit land on the basis of her purchase through the sale deed dated 30th June 1976. On the basis of these finding, the learned court below has decreed the suit declaring the title of the plaintiff over the suit land and further holding her entitled to recovery of possession over the same from the defendant 1st set. The plaintiff has also been found entitled to mesne profits to be determined later. Heard Mr. S.S. Dwivedi, the learned senior counsel Patna High Court FA No.9 of 1986 dt.20-09-2012 8 appearing on behalf of the appellants and Mr. T.N. Matin, the learned senior counsel appearing on behalf of the plaintiff-respondent. The assail of Mr. S.S. Dwivedi, the learned senior counsel, to the impugned judgment and decree is two fold. Firstly, he has challenged the finding of adoption of Banshidhar Kishorpuria by Mulchand Ram. It has been urged that there is total absence of the necessary pleading in the plaint with regard to the case of adoption and even otherwise also there is no evidence to substantiate the case of adoption which can be established by necessarily proving that the ceremony of „giving and taking‟ of the child had been performed. It has further been pointed out that even the circumstances, as unfolded by the evidence on record, also are not in consonance with the story of adoption of Banshidhar Kishorpuria by Mulchand Ram. Elaborating his submissions, the learned senior counsel has contended that there is no evidence to establish that Mulchand Ram was ever described as Mulchand Ram Kishorpuria anywhere and further, Mulchand Ram acquired title over only 2 Bigha 1 katha of land from Budhan Paswan and another by purchase but the sale deed executed by his alleged adopted son Banshidhar Kishorpuria mentions the transfer of altogether 2 Bigha 5 Katha of land which fact itself shows that Banshidhar Kishorpuria was not even acquainted with the real facts, when normally a truly adopted son would have known the correct facts. It has been pointed out that entries of the names of Paliram Patna High Court FA No.9 of 1986 dt.20-09-2012 9 Singhania as well as Mulchand Ram Marwari in the municipal records are also suspicious in nature as no order of mutation has been produced on behalf of the plaintiff to substantiate the same. Further, it has been contended that there is admittedly no document of adoption and the oldest of the witnesses of the parties, who has been examined as D.W.-1, is no other than Purohit of Mulchand Ram but he has also not supported the story of adoption as pleaded by the plaintiff. It has been next contended by the learned senior counsel for the appellants that Mulchand Ram had dedicated his purchased 2 Bigha 1 katha of land to „Shitla Asthan‟, with Ramphal Bhagat Mali to perform Puja etc. and placed him in possession of the property. After the death of Ramphal Bhagat Mali, it has been submitted, his heirs who are the defendant 2nd set in the suit, inherited the property and continued in possession of the same. It has thus been urged that although no proof of dedication by Mulchandram is available but still it is a case of lost grant and therefore, the defendant 2nd set had acquired valid title over the property including the suit property by prescription. It has been urged that the learned court below has also found the defendants in possession over the suit land but has not considered that the defendants have perfected their title over the suit property by adverse possession. It has further been pointed that the dispute with regard to possession started only in the year 1970-71 for the first time and prior to that there was no dispute and the defendant Patna High Court FA No.9 of 1986 dt.20-09-2012 10 2nd set continued in peaceful possession over the dedicated properties. It has been canvassed that the defendant 2nd set were well within their rights to transfer the suit land in favour of the defendant no. 1 by registered sale deed conveying valid title and possession over the suit land to her. Finally, it has been argued that the learned court below has misconstrued and misinterpreted the evidence on record and has passed the impugned judgment on the basis of misconception of law and facts and as such, the impugned judgment and decree are not fit to be sustained. Per contra, Mr. T.N. Matin, the learned senior counsel appearing on behalf of the plaintiff-respondent, has submitted that there is no foundation at all for the claim of the defendant 2nd set of acquisition of title by adverse possession over the suit land. It has been submitted that in view of the statements in the written statement, it is manifest that the initial entry of Ramphal Bhagat Mali over the suit land was a legal entry as Pujari or Caretaker, and he and his successor-in-interest have been continuing in possession over the suit land as such with the permission of the admitted owner Mulchand Ram. It has thus been urged that the basic ingredient of adverse possession i.e. „animus possidendi, is completely absent as the defendants have failed to state as to how and when Ramphal Bhagat Mali or his successors have started claiming their hostile title over the suit land. It has been contended that the suit is governed by Article 65 Patna High Court FA No.9 of 1986 dt.20-09-2012 11 of the Limitation Act by which the plaintiff has only to establish his/her title over the suit land and the defendants can defeat the claim of the plaintiff for recovery of possession only when they establish that their possession over the suit land has become adverse to the plaintiff for more than the prescribed period. It has been further submitted by the learned senior counsel that from the facts of the case it transpires that Mulchand Ram Marwari died in the year 1923-24 and therefore the adoption of Banshidhar Kishorpuria must be assumed to have taken place long back. It has been urged that in all such cases of old/ancient adoption, the burden of proof is not no strict, as actual evidence of “giving and taking” of the boy in adoption, in all probability stand wiped out by the passage of time. It has, therefore, been canvassed that in such cases if the adoption has been accepted in the normal course by the family members and relatives then the strict proof of „giving and taking‟ is dispensed with. It has been pointed out that the close family members including the cousin of Bansidhar Kishorpuria has come before the court in support of the adoption of Banshidhar Kishorpuria by Mulchand Ram and therefore absence of the evidence of „giving and taking, could not be very material. It has further been urged by the learned senior counsel that the execution of the sale deed in the year 1935 by Bansidhar Kishorpuria and thereafter dealing of the purchased properties in partition and exchange by the family members Patna High Court FA No.9 of 1986 dt.20-09-2012 12 of the purchaser Paliram Singhania are sufficient to suggest that the adoption had in fact taken place and recognized. Elaborating his submissions, the learned counsel has pointed out that even the kinsmen of Mulchand Ram have supported in their deposition that Mulchand Ram was also known as Mulchand Ram Kishorpuria and he had adopted Bansidhar Kishorpuria as his son. It has been thus argued that the learned court below has not committed any error of law and fact and the impugned judgment and decree require no interference. The learned counsels for the parties have also relied upon a number of decisions which shall be referred to appropriately later on. In view of the rival contentions of the parties, the following points emerge for determination in this appeal: (i) Whether the plaintiff has succeeded in establishing her title over the suit property on the basis of the sale deed dated 23.12.1935 by proving that the vendor Bansidhar Kishorpuria was the adopted son of the admitted owner Mulchand Ram who was also known as Mulchand Ram Kishorpuria or Mulchand Ram Marwari? (ii) Whether the defendants have succeeded in establishing their case of acquisition of title by adverse possession over the suit property? (iii) Whether the impugned judgment and decree by the Patna High Court FA No.9 of 1986 dt.20-09-2012 13 learned court below are sustainable in law as well as on facts? Point No.I:- There is no dispute between the parties that the suit property originally belonged to Mulchand Ram but the discord between the parties is that Mulchand Ram was a different person than Mulchand Ram Kishorpuria. Further, the plaintiff‟s case is that Mulchand Ram Kishorpuria adopted Bansidhar Kishorpuria as his son and subsequently Bandishar Kishorpuria by registered sale deed dated 23.12.1935 sold the 2 ¼ Bighas of homestead land alongwith trees standing over the same which he had inherited after the death of Mulchand Ram to Paliram Singhania who undisputedly was the father of the plaintiff. In this manner the plaintiff has claimed that the suit property has been acquired by her father and later on the plaintiff acquired title over the same through exchange with her brothers and thereafter by partition with her sister. To the contrary the specific case of the contesting defendants is that Bansidhar Kishorpuria was never adopted by Mulchand Ram as his son and thus he never acquired any right, title or possession over the suit property by inheritance from Mulchand Ram. The learned senior counsel on behalf of the defendant has laid emphasis that in order to establish valid adoption, the proof of actual “giving and taking” of the person being adopted is essential and heavy burden lies on the person who propounds the adoption to prove Patna High Court FA No.9 of 1986 dt.20-09-2012 14 this fact. It has been urged that in absence of proof of this fact, the case of adoption cannot be accepted by other evidence howsoever enormous the same may be. Strong reliance has been placed by the learned senior counsel on the following decisions of the Apex Court in support of this contention; (i) AIR 1961 SC 1378 [Lakshman Singh Kothari Vs. Smt. Rup Kanwar.] (ii) AIR 1983 SC 114 [Madhusudan Das Vs. Smt. Narayani Bai & Ors.] (iii) AIR1987 SC 962 [Rahasa Pandiani Vs. Gokulananda Panda.] The learned senior counsel appearing on behalf of the respondent on the other hand has contended that there is no dispute regarding the proposition that the proof of actual “giving and taking” is essential to establish the fact of adoption but in old cases of adoption where direct evidence to the fact of “giving and taking” is difficult to be found, the said principle regarding proof is not strictly applicable. Learned senior counsel has further canvassed that the decree of proof of the fact of adoption also varies in cases where the adoption is being challenged by a family member and where it is challenged by a stranger to the family. In the later case where old adoption is challenged by a stranger, the initial burden is not so heavy on the person asserting adoption and is discharged by leading some Patna High Court FA No.9 of 1986 dt.20-09-2012 15 evidence suggesting the fact of adoption and thereafter the burden shifts to the stranger to establish that no adoption has taken place. Learned senior counsel has placed reliance upon the following decisions in support of his propositions. (i) AIR 1970 SC 1286 [Debi Prasad Vs. Smt. Tribeni Devi & Ors.] (ii) AIR 1969 SC 1359 [Ramarao Vs. K. Bhaskarar.] (iii) AIR 1964 Orissa 117 [Balinki Padhano & Anr. Vs. Gopalkrishna Padhano & Ors.] (iv) AIR 1976 Rajasthan 40 [Moti Lal & Ors.Vs. Sardar Mal & Ors.] In the case of Laxman Singh (supra) their lordships have considered the law of adoption vis-à-vis the ceremony of “giving and taking” and, after taking notice of the treatise on Hindu law, have held that “under the Hindu Law, whether among regenerate caste or among Sudras, there cannot be a valid adoption unless the adoptive boy is transferred from one family to another and that can be done only by the ceremony of „giving and taking‟. The object of the corporeal giving and receiving in adoption is obviously to secure due publicity. To achieve this object it is essential to have a formal ceremony. No particular form is prescribed for the ceremony, but the law requires that the natural parent shall hand over the adoptive boy and the adoptive parent shall receive.” In the case of Madhusudan Das(Supra), Patna High Court FA No.9 of 1986 dt.20-09-2012 16 their Lordships have reiterated the principle that “ for a valid adoption, the physical act of giving and taking is an essential requisite, a ceremony imperative in all adoptions whatever the caste. And this requisite is satisfied in its essence only by the actual delivery and acceptance of the boy, even though there exists expression of consent or an executed deed of adoption”. In the case of Rahasa Pandiani (Supra), their Lordships have observed that in a case where the adoption is not supported by any registered document, the Court has to act with a great deal of caution and circumspection keeping in mind that a claim of spurious adoption is not less frequent than concocting a spurious will and thus the matter has to be approached cautiously keeping in mind suspicious circumstances. From the above postulates, it is clear that a fact of adoption will have to be proved by necessarily leading evidence of the ceremony of “giving and taking” and the Court will have to carefully scrutinize the evidence adduced to establish an adoption. However, in none of the above decisions, the issue regarding an ancient or old adoption was involved where direct