THE HON’BLE SRI JUSTICE B.PRAKASH RAO And THE HON’BLE SRI JUSTICE G.BHAVANI PRASAD C.C.C.A.Nos.206 and 207 of 2005 COMMON JUDGMENT: (Per BPR,J) Since these two appeals arise out of the same suit and against a common Judgment and Decrees, they are taken up together for disposal. In C.C.C.A.No.206 of 2005, the appellants 1 and 2 are the defendants 1 and 2 in O.S.No.619 of 1999, which has been filed inter alia seeking for declaration and possession of the suit schedule property by the sole respondent-plaintiff, which has been decreed as per the Judgment and Decree, dated 25-8-2005, whereas the appellants in the other appeal are the plaintiffs in the other suit in O.S.No.353 of 2001, filed by the appellants herein as the plaintiffs 1 and 2 inter alia seeking for permanent injunction against the defendants 1 to 6 therein and are the respondents 1 to 6 herein. For convenience sake, the parties are referred to as arrayed in the Court below. The case of the plaintiffs in O.S.No.353 of 2007 in short is to the effect that the plaintiffs are the brothers and sons of late K.Bheemsen Rao. Late K.Anantha Rao is the brother of late K.Bheemsen Rao. After the death of Anantha Rao, his wife K.Ramadevi adopted plaintiff No.1 during his childhood as per customs and brought him up as adopted mother. Ever since the adoption, the plaintiff No.1 is in care and custody of her adopted mother and residing in the suit schedule property, which consists of a house adjacent to each other in one compound and common entrance. However, since certain disputes arose between the members in the family after the date of late Anantha Rao, the matter led to litigation and ultimately on appeal before this Court, a compromise was arrived at by settling the dispute. Therefore, it is only after such compromise since Rama Devi was not having children, she took the plaintiff No.2 on adoption. Rama Devi died on 30-8-1999. Since the defendants therein filed other suit in O.S.No.619 of 1999, the plaintiffs had to take recourse to the present suit. Further, since attempts are made to threaten and disturb the possession, the suit for injunction was filed. Contesting the suit claim, the case of the defendant No.1 was that no doubt there was a compromise between the parties after certain disputes arose in CCCA.No.124 of 1979 wherein late K.Rama Devi paid an amount of Rs.65,000/- to the plaintiffs and their mother, and, Rama Devi was allowed to construct a compound wall, at which point of time, again there was an obstruction, which led to a police complaint. The allegations of the plaintiff No.2 that he was adopted was totally denied, however, it was pleaded that Rama Devi executed a registered will Deed No.8/99, dated 2-2-1989 in favour of the defendant No.3, and after the death of Rama Devi, he became absolute owner and processor since they are already in possession all along. However, since the plaintiffs break open the lock and took possession of the same illegally, the defendant had to file another suit in O.S.No.619 of 1999 for declaration and possession. Plea that there was already adoption is totally not correct hence the suit is liable to be dismissed. On this and other allegations, the Court below framed the following issues: 1. Whether the plaintiffs are entitled for the relief of perpetual injunction as prayed for? 2. Whether there is any cause of action to file the suit? 3. To what relief? In the other suit in O.S.No.619 of 1999 wherein a comprehensive relief of declaration of title and for possession by evicting the defendants was sought, the case revolves around on self same set of circumstances and the pleas as set forth in the above suit. The plaintiffs therein claimed their right, title and interest in pursuance of the said Will dated 2-2-1989 subsequent to the compromise decree dated 29-12-1987 in CCCA.No.124 of 1979. Smt Rama Devi died on 1-9-1999 and after her death, the suit premises was forcibly taken possession. The plea of the defendants about adoption is not true and correct, hence the suit. The above claim was again resisted by the defendants therein, who are the appellants herein virtually on the self same lines, falling back on the plea of adoption by late Rama Devi, after the aforesaid compromise and the defendant No.2 as adopted son being succeeded to the property in possession and enjoyment in his own right, title and interest. The execution of alleged Will is denied too. With these and other allegations, the Court below framed the following issues: 1. Whether the will dated 22-1-1989 was obtained by the father of the Plaintiff from Rama Devi by playing fraud against her? 2. Whether the second Defendant is the adopted son of Rama Devi? 3. Whether the Plaintiff is entitled to the declaration and the consequential relief of possession as prayed for? 4. Whether the plaintiff is entitled for mesne profits as prayed for? 5. To what relief? As mentioned in the judgment, the suit in O.S.No.353 of 2001 was initially filed as OS.1157 of 1999, and subsequent to transfer, it was clubbed with O.S.619 of 1999 and renumbered as OS.No.353 of 2001. A common trial took place wherein PWs.1 to 5 were examined on behalf of the plaintiffs marking the documents Exs.A.1 to A.77, whereas on behalf of the defendants DWs.1 to 4 were examined and Exs.B.1 to B.21 were marked. The Court below on appreciation of the evidence and material on record dismissed the suit in OS.No.353 of 2001 and whereas decreed the other suit in OS.619 of 1999 granting declaratory rights and entitlement for possession of the suit schedule property. Hence these two appeals. After hearing the counsel on either side in detail and after going through the entire material on record, the point which arises for consideration is on the twin pleas, one plea is in pursuance of a Will dated 2-2-1989 and another is on the basis of adoption. It has to be seen that the plaintiff No.2, who claims to be the adopted son was examined as PW.1 and got support from the depositions of PWs.2 to 5. PW.1 virtually reiterates the claim from out of the plaint, PW.2 is his maternal uncle, PW.3 is neighbour and PW.4 is a resident of another village and grandfather of the plaintiffs. PW.5 is a retired principal and neighbour of the plaintiffs. In once voice, no doubt they tried to support the case of the plaintiffs about adoption, but, however the Court below considered their depositions in a categorical manner since heavy burden lies on the plaintiffs to establish the factum of adoption. It was found specifically that the compromise decree, which is marked as Ex.B11 would show that Rama Devi paid a sum of Rs.65,000/-. The said compromise is dated 28-12-1987, whereas the amounts were paid later under Ex.B.12 and B.13 undisputedly. That apart, the other documents in Exs.A.1 to A.74 consisting of various tax receipts, water and electricity bills etc., would amply show the possession of Rama Devi. PW.1 does not in any way explain as to how such amount could have been paid, if really, there was adoption after the compromise on 25-1- 1988. Neither there is a link thereto nor explanation given by the plaintiffs. Admittedly, no document is forthcoming in support of the alleged adoption even though it has been stated by the witnesses that the document was executed in their presence. Surprisingly, above all, the plaintiff No.2, who is the adopted son and for whom the entire claim has been set forth and relief sought for has not come into the witness box to give deposition. There is no explanation as to why the plaintiff No.2 could not be examined nor there can be any excuse. Therefore, on the face of such serious contest from the defendants, though it has been alleged in fact by the PWs.2 to 5 that adoption took place on 25-1-1988, but there is no consistency as to the mode, manner and the factum. Ex.B.13, the receipt dated 19-3-1988 showing the payment of Rs.15,000/- totally damage the plea of adoption as set forth by the plaintiffs. There is no one, who could speak about the adoption ceremony or the very factum of adoption as such in the manner as it required to be established. Whereas PW.1 in fact supports the case of the defendants about the execution of the Will deed in favour of the defendant No.3. It is admitted that none of the relatives were present at the time of adoption. The truth and correctness of the depositions of PW.3 and other witnesses have been seriously disputed having regard to the inconsistency. Further, their own witnesses would say that Rama Devi used to stay in her house till her death. Therefore, even on a re-reading of the depositions of PWs.1 to 5 would amply justify the reasoning given by the Court below in denying the factum of adoption as alleged. Thus, we are in entire agreement with the Court below to hold that the plaintiff has utterly failed to establish the very factum of adoption. We do not find any reasons to vary with the reasoning given in support of the finding. Coming to the other aspect about the Will deed, which is a registered one and which is marked as Ex.B.1, that also as rightly observed by the Court below amply proved not only by the attesters, who were examined as Exs.PWs.2 to 3, but also that of admissions on the part of the plaintiffs. An attempt was made on the part of the appellants to show that such admissions would not in any way dispel the burden lying on them to prove the Will. Be that as it may, the evidence, as rightly pointed out through DWs.2 and 3, whose version about the execution and attestation has remained unshaken, and further, it is their case that DW.1 to DW.3 together went to Sub- Registrar’s Office to execute a Will deed. The stamp paper was purchased by Rama Devi and DW.3 is an advocate who deposed that he separately went to the sub-registrar’s office at the request of Rama Devi. We have once again perused the entire depositions of DWs.1 to 3 and have no hesitation to hold that the Court below was absolutely right in holding that Ex.B.1 Will deed has been proved by due examination of attestors since their version is consistent. Nothing has been pointed out even at this stage by the learned Counsel appearing on behalf of the appellants herein to show any serious discrepancies or any such circumstance, which would shake the very execution of the document or its genuineness. In view of the same, we once again reiterate the finding of the Court below to hold that the alleged Will Deed dated 2-2-1999, which is marked as Ex.B.1 is true and valid. It is also sought to be contended by placing reliance Bhoop Singh Vs. Ram Singh Major and Others[1] that the alleged compromise decree is not a registered one, whereas the very same decision, after considering the various aspects holds as under: “8. Coming to the post-independent decisions, the first to be pressed into service is that of High Court of Assam and Nagaland in Sudhir Chandra Guha v. Jogesh Chandra Das, AIR 1970 Assam 102. This decision does support the legal submission advanced by Shri Sehgal inasmuch as it has been held that the compromise decree in an earlier suit being relatable to immovable property which was subject matter of the suit, section 17 (2) (vi) of the Registration Act did exempt the decree from registration. It was, therefore, held that the compromise decree in question was not required to be registered for conferring title in respect of property in the decree as per its terms. AIR 1982 Cal 222, (Surjya Kumar Das v. Smt Maya Dutta) also sustains the legal proposition advanced by the learned counsel to the extent that a compromise decree confined to the subject matter of suit does not require registration to confer title by its force.” From the above, it has not been pointed out on behalf of the appellants any such warranting circumstances to necessitate any such registration in the present case. Even though, the other decisions were cited across the Bar, however, we are of the view that having regard to the findings as given on facts and on appreciation of the material on record, no such question arises to have any say on the main finding. We do not find any merits in either of the appeals. Both the appeals are accordingly dismissed with costs. __________________ (B.PRAKASH RAO,J) grk Date:07-04-2011 __________________ (G.BHAVANI PRASAD,J) [1] (1995) 5 SCC 709