R.S.A.No.119 of 1982 (O&M) : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH REGULAR SECOND APPEAL NO.119 OF 1982 DATE OF DECISION: July 02, 2008 Shamsher Singh .....Appellant VERSUS Gobind Singh and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr.Deepak Sibal, Advocate with Mr.Davinder Lubana, Advocate, Mr.Akshay Bhan, Advocate, for L.Rs of the appellants. Mr.Vinod Bhardwaj, Advocate. Mr.Ajay Tewari, Advocate, for applicant in CM No.444-C of 2007. Mr.G.S.Grewal, Senior Advocate with Ms.Tanisha Peshawaria, Advocate, for the respondents. **** RANJIT SINGH, J. Appellant has claimed right and title to the property being an adopted son. He remained unsuccessful in suit which he filed and in the first appeal and thus has challenged both the verdicts by filing R.S.A.No.119 of 1982 (O&M) : 2 : the present Regular Second Appeal. The dispute goes to pre-partition era and present appeal is pending since 1982. Even the appellant-plaintiff is no more and stands substituted by his L.Rs. Similarly some of the respondents also stand substituted by their L.Rs. on their death and this is so reflected in the amendments carried out in the memo of parties from time to time. Even now, one application is pending adjudication whereby prayer has been made for impleading Gursharan Kaur as respondent No.18 under Order 1 Rule 10 CPC. This application was filed once the arguments in the case were heard and the judgment reserved. The applicant claims herself to be legal heir of Sham Kaur wife of Ganda Singh, whose property is in issue in the present appeal. It is not made clear in the application as to how the applicant has woken to be heard now and where she has remained though suit was filed in the year 1976 and decided in 1979. This application accordingly has been opposed by the respondents and the same shall be dealt with after making reference to the controversy that requires adjudication in the present case. The facts in this case as noticed are that Shamsher Singh (appellant-plaintiff) instituted a suit for declaration to the effect that he is owner in possession of the land as described in the heading of the plaint and for further declaration that he is owner of the equity of redemption regarding land as separately detailed in the heading of the plaint being Khata No.35/35 and Khasra number as mentioned and entered in jamabandi for the year 1973-74, situated in the area of village Sukhgarh, Hadbast No.89, Tehsil Kharar. In the alternative, appellant-plaintiff also has claimed possession of the land in suit. R.S.A.No.119 of 1982 (O&M) : 3 : This land originally belongs to Ganda Singh son of Nihal Singh of village Sukhgarh. Appellant-plaintiff is son of Karam Kaur daughter of Harnam Singh, who was collaterally related to Ganda Singh. After the death of Harnam Singh, the property owned by him was inherited by his real brother Amar Singh. Amar Singh died issueless as he was not married and thus property owned by Amar Singh was inherited by Ganda Singh as he was the only surviving cousin of Amar Singh. Ganda Singh died in the year 1948, leaving behind his wife Sham Kaur and allegedly his adopted son Shamsher Singh (plaintiff- appellant). Ganda Singh was a Jat agriculturist and thus was governed by the customs in the matters of succession and adoption. The averment in the suit further is that after the marriage of Karam Kaur with the appellant-plaintiff''s father, she lived with Ganda Singh and gave birth to two children, i.e., the appellant-plaintiff and his younger brother Shivdev Singh. Ganda Singh was also issueless and thus it is claimed that soon after the birth of appellant-plaintiff, he had adopted the plaintiff as his son under the custom after performing the requisite ceremonies. It is claimed that this adoption was performed in the collection of brotherhood where `Gur' (Jaggery) was distributed and the appellant-plaintiff was taken in lap by Ganda Singh. Ever since that date, appellant-plaintiff claims to have lived with Ganda Singh and was treated as his son and the appellant had been treating Ganda Singh as his father. It is also mentioned that Sham Kaur wife of Ganda Singh has also been treating the appellant as her son. Appellant also claims to have been brought up, educated and married by his adopted father Ganda Singh. The case further is that after the death of Ganda Singh, he alone was entitled R.S.A.No.119 of 1982 (O&M) : 4 : to succeed his property being his adopted son, but to gain the confidence of his adopted mother, he allowed the mutation to be sanctioned in favour of Sham Kaur, widow of Ganda Singh and adopted mother of appellant-plaintiff. The mutation was sanctioned in the names of Sham Kaur and Shamsher Singh in equal share. Appellant Shamsher Singh had also acted as Lambardar for some time and states to have been acknowledged as the adopted son by Sham Kaur. He continued to live with his adopted mother and enjoyed the property jointly with her. Appellant then claims that six years prior to filing of suit, Sham Kaur died. He continued to be in possession of the property but Basant Kaur and Baljit Kaur mothers of defendants No.1 to 4 and 5 and 5-A respectively in collusion with revenue authorities got the mutation of land sanctioned in their favour bye-passing the appellant. He, thus, claims that the property was wrongly mutated in favour of Basant Kaur and Baljit Kaur daughters of Harnam Singh as he being adopted son was entitled to inherit the property after the death of Sham Kaur. Appellant would further claims that Sham Kaur was not the owner of the suit property and was merely a trustee `Benamidar' for the appellant-plaintiff, whereas the legal and beneficial (equitable ownership) vested in the appellant- plaintiff. Appellant has also claimed that he is managing the property left by Sham Kaur, his adopted mother and is in cultivating possession thereof. It is stated that the mutation sanctioned in favour of defendants No.1 to 5-A vide mutation No.1064 dated 19.8.1971 is without any right and authority and as such is altogether illegal. It is on the basis of this mutation that the defendants are threatening the appellant-plaintiff to take forcible possession of the suit land for R.S.A.No.119 of 1982 (O&M) : 5 : which they do not have any right to interfere in the peaceful possession of the appellant-plaintiff. He has thus claimed declaration of ownership regarding the land in his possession. As regards the land which is in possession of the mortgagees, the appellant-plaintiff has claimed declaration that he is the owner of equity of redemption and in alternative he has claimed possession of the said suit land as well. In short, the claim of the appellant-plaintiff is based on the fact that he is the adopted son of Ganda Singh and Sham Kaur and thus is entitled to the ownership and possession of the land to the exclusion of Basant Kaur and Baljit Kaur daughters of Harnam Singh. The suit was resisted by the defendants, who are the offspring of Basant Kaur and Baljit Kaur. As per the defendants, the suit land was never owned or possessed by Ganda Singh. They also denied if the appellant-plaintiff was ever adopted by Ganda Singh as his son. It is claimed that he never became the adopted son of Ganda Singh and Sham Kaur. The respondents would plead that the appellant-plaintiff was never brought up, educated or married by Ganda Singh and was never treated as son by Ganda Singh and Sham Kaur. In their reply, the respondents would point out that the appellant-plaintiff is recorded as son of Gurbachan Singh in the school records and so too in the voters list and in the records of the Army service, where he had remained from the year 1939 to 1941. The respondent-defendants would also point out that the appellant had raised a loan from the Co-operative Society, Sukhgarh describing himself as son of Gurbachan Singh. It is claimed that even Gurbachan Singh, the father of the appellant, has also denied the R.S.A.No.119 of 1982 (O&M) : 6 : alleged adoption. The deed of adoption which was pressed into service, though not exhibited, is stated to be paper transaction besides urging that appellant-plaintiff was never adopted nor treated as such before or after the alleged deed of adoption which was also destroyed by Ganda Singh. Explaining the mutation of the land in favour of appellant, it is stated that the same was wrongly sanctioned in his favour and presence of Sham Kaur was also wrongly recorded. It is also mentioned that Sham Kaur never made any statement conceding to the adoption and rather had hotly contested the alleged adoption before a civil court in a suit filed by the appellant-plaintiff on 14.10.1958, which was dismissed on 16.12.1959. This suit was filed by the appellant claiming possession of the land belonging to Ganda Singh being his adopted son. Sham Kaur had denied the adoption as alleged by the appellant-plaintiff in the said suit of which she statedly was enjoying the exclusive possession even to the exclusion of the appellant-plaintiff. It is further disclosed in the reply that Sham Kaur had died much prior to six years of the institution of the present civil suit. Accordingly, the ownership of the appellant and his possession over the suit land is denied by the respondent-defendants. According to the respondents, mutation was sanctioned in favour of Sham Kaur, she being the only heir of Ganda Singh, which was never contested by appellant-plaintiff. He also did not even make a claim before the Rehabilitation Authorities for allotment of a land belonging to Ganda Singh and left in Pakistan. It is, thus, claimed that mutation of inheritance of Sham Kaur was rightly sanctioned in favour of Basant Kaur, (mother of defendants No.1 to 4 and Balbir Kaur (mother of defendants No.5 and 5-A). R.S.A.No.119 of 1982 (O&M) : 7 : To further strengthen their case, the respondents would point out that the appellant-plaintiff had contested the mutation and failed upto Financial Commissioner. It is, thus, denied that the appellant-plaintiff is adopted son and is entitled to inherit the property of Sham Kaur or Ganda Singh as claimed. The averment that Sham Kaur was mere trustee is again denied by stating that she was the owner in possession of the property and thus the land/property has rightly come into the possession and ownership of Basant Kaur and Baljit Kaur. It is also mentioned that Sham Kaur had never mortgaged any land and as such the question of consent by the appellant-plaintiff did not arise. Appellant-plaintiff is out of possession and having failed in his suit filed for possession in the year 1959, his right and title, if any, stood extinguished under Section 27 of the Limitation Act. Respondent-defendants, thus, would also claim that they are in adverse possession if not as rightful heir under a colour of title as owner, continuously without interruption openly to the knowledge of all concerned and as such have become owners by adverse possession. The land mortgaged was redeemed by the respondent-defendants on payment of mortgage money to which the appellant has never raised any objection. It is also stated that the appellant never took any action after dismissal of his suit filed for possession on 14.10.1958, which was dismissed on 16.12.1959. According to the respondents, this judgment is final and binding on the parties and would operate as res judicata against the appellant- plaintiff. The case of the respondents, thus, is that Sham Kaur was holding this property inherited from Ganda Singh as owner to the exclusion of the appellant-plaintiff since the year 1948. It is also R.S.A.No.119 of 1982 (O&M) : 8 : stated that Sham Kaur was the owner of ½ share in squares No.18 and 20 in Pakistan while Ganda Singh was owner of square No.19. Sham Kaur and Ganda Singh held equal areas of land in Pakistan. P.Rights Sanad was issued in favour of Sham Kaur regarding the land owned and possessed by Ganda Singh as well as land owned and possessed by her in Pakistan. Appellant-plaintiff had challenged the same but failed before the civil court. As already noticed, he never approached the Rehabilitation Authorities for that purpose. Thus, the claim, he even may have, has become time barred. On the pleadings of the parties, as afore-mentioned, the trial court framed the following issues:- 1. Whether the plaintiff is adopted son of Ganda Singh? OPP. 2. Whether the plaintiff and Smt.Sham Kaur inherited the property of Ganda Singh in 1948 to the extent of ½ share, each? OPP. 3. Whether the defendants 1 to 5 are the next heirs of Smt.Sham Kaur? OPD. 4. Whether the judgment dated 16.12.59 of the court of Sub Judge Ist Class, Kharar operates as resjudicata? OPD. 5. Whether Ganda Singh was the owner of the entire property in dispute? OPP. 6. Whether the suit is properly valued for purposes of court fee? OPP. 7. Whether the parties are governed by custom in the matters of adoption and succession. If so, what the R.S.A.No.119 of 1982 (O&M) : 9 : custom is? OPP. 8. Whether the suit is within time? OPP. 9. Whether Smt.Sham Kaur deceased held the property in suit in trust and was a benami for the plaintiff? OPP. 10. Whether the plaintiff is entitled to succeed to Sham Kaur as her adopted son? OPP. 11. Whether Sham Kaur and defendants 1 to 5 became the owners by adverse possession? OPD. 12. Whether the defendants 1 to 5 got the land redeemed as mortgaged by Sham Kaur and what is its effect? OPD. 13. Whether the plaintiff is entitled to the declaration or possession of the suit land? OPP. 14. Relief. Issues No.1 to 7, 9 and 10 were decided against the appellant-plaintiff by Sub Judge IInd Class, Kharar. He also found issue No.11 in favour of the defendants. He accordingly dismissed the suit of the appellant-plaintiff with costs. The appellant-plaintiff filed appeal against this order dated 30.4.1979, which was also dismissed on 5.10.1981 affirming the judgment passed by the Sub Judge, Kharar. The findings on issues No.8 and 11 have been reversed. That is how, the appellant-plaintiff is in second appeal. Having regard to the rival contentions raised by respective parties, the basic issue that would require determination in the present case would relate to the aspect of adoption as pleaded by the plaintiff-appellant and countered by respondent-defendants. The remaining issues as framed would accordingly depend upon the R.S.A.No.119 of 1982 (O&M) : 10 : decision whether the appellant was able to establish his adoption to be valid or not. To prove this adoption, the appellant has relied upon the oral account given by himself, his natural father Gurbachan Singh (PW1), Amar Chand (PW5), Hari Singh (PW6) and Nand Singh (PW8). Their versions were analyzed and appreciated by both the courts below to conclude that it would not be safe to rely upon said versions to hold that adoption of the appellant was valid. On the contrary, the respondent-defendants have highlighted various circumstances and the evidence given by different persons to contest the adoption as pleaded by the appellant-plaintiff. The views as taken by the courts below have respectively been seriously challenged by the counsel representing the respective parties and need a notice. Reliance has been placed on a copy of adoption deed, which was marked `A' and was not exhibited on record. The first question that arose was to see if this document can be looked into by the court in evidence or not. To counter this, the counsel for the appellant would rely on legal re-course by saying that the existence of the adoption deed has been admitted by the defendants in the written statement filed by them and this is a valid piece of evidence wrongly ignored. Averments in the reply in this regard are as under:- “The alleged deed of adoption was all a paper transaction. In fact, the plaintiff was never adopted nor treated as such before or after the alleged deed which was destroyed by Ganda Singh”. This is stated to be an admission on the part of the respondents and it is urged that this would show that (i) the existence R.S.A.No.119 of 1982 (O&M) : 11 : of adoption deed was admitted, (ii) the contents thereof are also admitted when it is stated that it was not acted upon. Counsel would plead that this can be so urged only if one had gone through the contents of the adoption deed. He, thus, contends that the contents of the deed are admitted. The first question that would require consideration is whether this adoption deed can be taken into consideration or not. Concededly this document is a marked document and was not exhibited. The legal position in regard to marked document, is well settled. The main argument raised by the counsel for the appellant that the admission made by the respondents about the adoption deed would cure this defect would help the cause of the appellant if the contents of the reply, as referred and reproduced above, are termed as admission on the part of respondent-defendants. The contents cannot be taken as admission. The portion reproduced above and highlighted as admission apparently is taken out of context to urge that it would amount to admission. As to what constitute admission is well understood in the legal parlance to invite any uncalled for debate in this regard. Under Section 17 of the Indian Evidence Act, an admission is defined as a statement oral or documentary, which suggests any inference as to any fact and issue or relevant fact. An admission is a voluntary acknowledgment by a party or some one identified with him in legal interest of the existence of certain facts which are in issue or relevant to an issue in the case. Admission unless explained furnishes the best evidence, but admission as a whole has to be looked into for arriving at a conclusion. To have R.S.A.No.119 of 1982 (O&M) : 12 : value and an effect as stated, an admission has to be clear, certain and definite and not ambiguous, vague or confused. Statement to operate as an admission must be clear in its meaning. Admission is not conclusive proof of the matter admitted, though it may in certain circumstances operate as estoppel. (See K.S. Srinivasan v. Union of India, AIR 1958 SC 419). It has also been held In the case of Nagubai Ammal and others v. B.Shama Rao and others, AIR 1956 SC 593 that an admission is not a conclusive as to the truth of a matter stated therein. It is only a piece of evidence, the weight to be attached to which must depend on the circumstances under which it is made. It can be shown to be erroneous or untrue, so long as the person to whom it was made has not acted upon it to his detriment, when it might become conclusive by way of estoppel. It is further held that it must be shown that there is a clear and unambiguous statement by the opponent, such as will be conclusive unless explained. Section 17 of the Indian Evidence Act does not seem to be making any distinction between an admission made by a party in a pleading and other admissions and admission made by a party in a plaint signed and verified by him. However, such an admission cannot be regarded as a conclusive in the other suit and it is open to a party to show that it is not true. (See Basant Singh v. Janki Singh, AIR 1967 SC 341). In this context, let us see if the alleged averment made in the reply, as reproduced above, can be taken as an admission or not. The contents of the reply that alleged adoption deed was a paper transaction is being pressed to say that this amounts to an admission by the respondents that there was an adoption deed. This certainly R.S.A.No.119 of 1982 (O&M) : 13 : would not fit in the definition of an admission as noted above. This adoption deed, which is described as a paper transaction, is referred to as `alleged'. This has also to be read as whole and not in isolation as is being done In the reply, it is further mentioned that the plaintiff was never adopted nor treated as such and so this alleged deed was destroyed by Ganda Singh. The only inference that can be drawn from this reply is that there was an alleged adoption deed which was not true and was destroyed. How this can be treated as an admission on the part of respondents to say that there was a valid adoption deed is really not understood. In fact this has also to be appreciated in the context of complete averment in this regard in the reply. The perusal of the plaint would show that averment in regard to adoption of the plaintiff after performing the customs and ceremonies is averred in para 5 of the plaint. In reply to this, the respondents admitted the fact that Ganda Singh was issueless as correct but denied the remaining part as wrong by further mentioning that “plaintiff was never adopted by the deceased Ganda Singh”. In para 6 of the plaint, it is stated that after adoption, plaintiff lived with Ganda Singh, who has been treating him as his son and plaintiff has been treating Ganda Singh as his father. Similar averment in regard to Sham Kaur for treating the appellant-plaintiff as her son is also made, besides stating that the plaintiff was brought up, educated and married by his adopted father (Ganda Singh). This para of the plaint has again been denied as wrong. It is further stated that there was no such treatment as alleged. The fact as pleaded that plaintiff was brought up, educated or married by Ganda Singh is also denied and rather it is pointed out in the reply that the appellant-plaintiff is R.S.A.No.119 of 1982 (O&M) : 14 : recorded as son of Gurbachan Singh in the school record, in the voters list and in the Army where he was in the service from 1939 to 1941. It is further averred that the plaintiff had also raised a loan from Co-operative Society, Sukhgarh where he had described himself as son of Gurbachan Singh. Reference is also made that even his natural father Gurbachan Singh had denied the fact that the plaintiff was adopted. It is thereafter stated “that the plaintiff was never adopted by Ganda Singh nor treated as his son. The alleged deed of adoption is all a paper transaction. In fact the plaintiff was never adopted nor treated as such before or after the alleged deed which was destroyed by Ganda Singh.” Reading in this context as a whole, this part of a written statement can certainly not be termed as an admission. In order to be competent, an admission has to be clear, certain, definite and not vague or confused which is not so in the present case. It is further required to be appreciated that the respondents are not party to the execution of the adoption deed. They are also not witnesses to said adoption deed. The admission in regard to adoption deed by them, as such, obviously would not carry any presumption against them even if the statement as alleged and reproduced above is taken as an admission on the part of the respondent-defendants. As per Section 70 of the Indian Evidence Act, admission of a party to an attested document of its execution by himself shall be sufficient proof of its execution against him, but no such presumption otherwise be carried when the admission is in