IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 342 of 2001. Date of decision: 16.8.2011 _________________________________________________ Gurdas Ram adopted son of Jallaha ….Appellant. Versus Prabhu son of Nauda ….Respondent. Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 For the appellant : Mr. T.S. Chauhan, Advocate. For respondents : Mr. N.K. Thakur, Advocate. Surinder Singh, J : (Oral) Present Regular Second Appeal under Section 100 of the Code of Civil Procedure filed by the defendant against the concurrent findings by the courts below, was admitted on the following substantial question of law: (i) Whether the suit for declaration as tenant in possession was maintainable without impleading original owners of the suit land as parties? (ii) Whether the plaintiff could get any relief from the Civil Court without getting set-aside orders of the 1 Whether the reporters of Local Papers may be allowed to see the judgment ? - 2 - Revenue Court whereby, defendant has been declared as tenant in possession? (iii) Whether the Civil Court has jurisdiction in this matter in view of Section 112 of H.P. Land Tenancy Rights Act which bar jurisdiction of Civil Court for determination of Tenancy Rights? (iv) Whether the defendant was not adopted son of Shri Jallah in view of voluminous revenue record and sale deed dated 16.2.1959 whereby defendant was recorded adopted son of Shri Jallaha? (v) Whether the judgment and decree are vitiated for mis-appreciation of Exts. D1, D3, D9 and D10 and wrong appreciation of Ext.PW3/A and Ext. PW4/A? 2. Briefly stated, the facts giving rise to the present appeal can be summed-up thus. The suit land was held by Jallaha as a tenant, after his death by his widow Smt. Shanti Devi. Both died issueless. Plaintiff- respondent Prabhu being the real brother of Jallaha succeeded to the suit land. Later, mutation No. 1763 was attested in favour of the defendant behind the back of the plaintiff and reflected in the jamabandi for the year 1985-86 ( Ext. P1) showing him the adopted son of Jallaha. The plaintiff on coming to know about it, filed suit for declaration that this entry is incorrect, ineffective and not binding upon his - 3 - rights. Feeling invasion of his right, he sought consequential reliefs of injunction. 3. The suit was resisted and contested by the defendant/appellant questioning the locus-standing of the plaintiff to file the suit, non-joinder of necessary parties by taking preliminary objections and on merits it is averred that he was adopted by Jallaha as his son in the year 1958 where-after some of the property was mutated in his name showing him adopted son, which was purchased by him through sale deed. He admitted that widow of Jallaha named Smt. Shanti had succeeded to his estate but contended that after her death, he inherited the suit property being adopted son of Jallaha. 4. In replication, the stand taken by the respondent has been denied, including the preliminary objections and even paras of the pliant were reaffirmed. 5. On the pleadings of the parties, learned trial Court framed the following issues:- i. Whether the plaintiff is tenant in possession of the suit land as alleged? OPP. ii. Whether the revenue entries contrary to plaintiff’s such interest over the suit land are - 4 - void, ineffective having no bearing over the rights of the plaintiff over the suit land as alleged? OPP iii. Whether the plaintiff is entitled to the relief of permanent injunction as prayed? OPP iv. Whether the plaintiff has no locus standi to file this suit? OPD v. Whether the suit is bad for non-joinder of necessary parties as alleged? OPD vi. Whether the suit is without any cause of action? OPD vii. Whether the suit is bad for purposes of court fee valuation thereof as alleged? OPD (vii-A) Whether the defendant is the adopted son of Jallaha as alleged, if so, its effect? OPD. viii. Relief. 6. Issues No. I to III were decided in affirmative and others in negative, as such the suit filed by the plaintiff was decreed which was assailed in appeal by the defendant before the first appellate Court. The learned first appellate Court took note of the relevant provisions of the Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as “the Act”) and held that onus to prove the issue of adoption was on the defendant to which he could not discharge successfully. The learned first appellate Court also perused the documents tendered by the defendant in evidence and came - 5 - to the conclusion that there has been no ceremony of actual giving and taking in the alleged adoption of the defendant by the natural father of the adopted father. Even the evidence of the defendant/appellant itself shows that no such ceremony had ever taken place. Even the evidence adduced was lacking to press into service Section 50 of the Act. The learned first appellate Court also on re-appraisal of the evidence came to the conclusion that the consent of the wife of Jallaha, as required under Section 7 of the Act is also lacking. The sale deed Ext. P7 relied upon by the defendant stands contradicted by another sale deed Ext. PW4/A in which the name of the father has been shown as Rulda. Further, the Missal Haquit Bandobast Jadid Sani for the year 1987-88 Ext. PC and Ext. PD shows him as the son of Kanhu. Thus the reference about the adoption in the sale deed as adopted son of Jallaha was held not to be sufficient to prove the actual adoption as such his appeal was dismissed. Hence the present appeal, precisely on the grounds that the courts below mis-appreciated the documentary evidence on record and the - 6 - defendant has proved the performance of ceremony of adoption. 7. In view of the above, in my opinion, except substantial questions of law No 4 and 5 above, other questions are irrelevant for the purpose of determining the present appeal, as these do not arise at all for its determination and also for the reason that the matter solely hinges upon the proof of adoption of the defendant by late Shri Jallaha; the moment adoption stands proved, everything would follow in his favour. 8. The moot question in the instant case is whether the defendant is proved to be adopted son of Jallaha and the substantial questions No. 4 and 5 above require re-appreciation of evidence whether the courts below have rightly dealt with it. 9. Chapter II of the Act aforesaid deals with the adoption and Section 5 thereof regulate the adoption. Whereas Section 6 refers to the requisites of the valid adoption and it reads as under:- “6. Requisites of a valid adoption. No adoption shall be valid unless- (i) The person adopting has the capacity, and also the right, to take in adoption; - 7 - (ii) The person giving in adoption has the capacity to do so; (iii) The person adopted is capable of being taken in adoption; and (iv) The adoption is made in compliance with the other conditions mentioned in this Chapter. “ 10. Further, Section 7 states about the capacity of a male Hindu to take in adoption with a proviso added to it that if his wife is living, he shall not adopt except with the consent of his wife unless the wife has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a Court of competent jurisdiction to be of unsound mind. The explanations added to this Section are not relevant in the present context. 11. Section 11 provides for other conditions for a valid adoption which, inter alia, says that the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth or in the case of an abandoned child or child whose parentage is not known, from the place or family where it has, been brought up to the family of its adoption. Provided - 8 - that the performance of data homam shall not be essential to the validity of adoption. 12. Thus on the perusal of the aforesaid provisions of law, the onus heavily lies upon the defendant to prove that his adoption has been in accordance with the aforesaid provisions. The year of adoption is 1958 as mentioned in the written statement but in his statement before the Court, he says 1959 but in both the eventualities this Act has been in force. On perusal of evidence on record, I find no reference in his statement that his natural parents had given him in adoption to the adopted father and also the wife of the adopted father, Smt. Shanti had also consented to it. Even defendant did not make any reference about the ceremony having been performed. Pertinently, when the defendant has failed to prove the essential ceremonies of adoption, the adoption is not proved, therefore, there was no occasion of his being recorded as an adopted son of Jallaha in the jamabandi for the year 1985-86, more specifically when his name was not found mentioned as such even in the earlier jamabandis prepared after the death of Shri Jallaha. Further had - 9 - he been adopted son of Jallaha, he could have inherited the estate of his adopted father along with Shanti Devi to the extent of equal shares which is not there nor defendant has assailed the said mutation of inheritance at any time rather his contention is that after the death of Jallaha, his estate was succeeded by Smt. Shanti Devi, thereafter rightly succeeded by him. There are also conflicting entries with respect to the parentage of the defendant in Ext. PC and Ext. PD Missal haquiat Bandobast jadid sani for the year 1987-88 and in pedigree table, the defendant has been shown to be son of Kanhu. But in the sale deed Ext. PW4/A registered on 7.3.1986, he has been shown to be the son of Rulda. In the application dated 4.5.1990 Ext. PW3/A seeking correction of revenue entries, he has shown himself as adopted son of Shri Jallaha in the memo but in para 2 of the application, he stated that Shanti Devi widow of Jallah died issueless leaving behind no legal heirs. 13. Further, the mutation Ext. D10 with respect to the partition wherein he has been shown to be co- owner of the land and has been shown adopted son - 10 - of Jallaha has no relevance against the above factual background, more particularly when the defendant has primarily failed to prove a valid adoption, in accordance with law. Thus, the learned trial Court taking note of the above provisions of law and the evidence on record, rightly came to the conclusion that the defendant has no right to inherit the property or tenancy rights of Jallaha or Smt. Shanti Devi which is only inheritable by the plaintiff as per provisions of Section 15 of the Hindu Succession Act, 1956 and the relevant provisions of the Tenancy Act. Thus I do not find any mis-interpretation or mis-appreciation of law and facts arrived at by the Courts below. The substantial questions (IV) and (V) above are accordingly answered and others are not attracted in the above fact situation. 14. For the foregoing reasons, the appeal sans merit and is accordingly dismissed. 15. Parties are left to bear their own costs. August 16 , 2011 (Surinder Singh), (cm) Judge.