-:1:- S.B.CIVIL FIRST APPEAL NO.119/1991 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT S.B.CIVIL FIRST APPEAL NO.119/1991. GALLA (SINCE DECEASED) THROUGH HIS LRS. VERSUS MADAN LAL. CIVIL REGULAR FIRST APPEAL UNDER SECTION 96 C.P.C. AGAINST THE JUDGMENT AND DECREE DATED 03.04.1991 PASSED BY SHRI JASPAL SINGH, DISTRICT JUDGE, TONK IN CIVIL SUIT NO.9/1997 (85/1990). Date of Judgment. : March 24, 2009. PRESENT HON'BLE MR.JUSTICE DALIP SINGH HON'BLE MR.JUSTICE DALIP SINGH Mr.Parag Rastogi, for the appellant. Mr.Nitin Jain, for the respondent. BY THE COURT : This first appeal under Section 96 C.P.C. has been filed against the judgment and decree dated 03.04.1991 passed by the learned District Judge, Tonk in Civil Suit No.9/1997 (85/1990) by which the suit filed by the plaintiff-appellant against the defendant for setting aside the sale-deed and permanent injunction has been dismissed. The facts, in brief, are that the plaintiff-appellant filed a suit alleging that he was the adopted son of the deceased Devi -:2:- S.B.CIVIL FIRST APPEAL NO.119/1991 Lal and, therefore, Devi Lal could not have sold the agricultural land vide Exhibit-2, the sale-deed, in favour of the defendant Madan Lal as the property was the ancestral property in which on account of the adoption the plaintiff acquired a right by birth and, therefore, Devi Lal, the vendor, having adopted the plaintiff had no exclusive right to sell the land, hence the sale- deed be declared to be null and void. The learned trial court framed as many as seven issues. However, the principal issue on which the case of the plaintiff- appellant rests and which alone has been stressed before this court is Issue No.1 which pertains to the alleged fact of adoption of the plaintiff by the defendant Devi Lal as in case the plaintiff-appellant fails to prove the same he has no right to challenge the sale by Devi Lal. Learned counsel for the appellant contended that Devi Lal was the son of Kana and Kana had another son Harla. Harla was the natural father of the plaintiff and Harla had two sons; the plaintiff Galla and Harji. It was the case of the plaintiff that Harla died in Samvat Year 2008, corresponding to the year 1951, and after the death of Harla, Devi Lal had adopted the plaintiff Galla. It was the case of the plaintiff Galla that he had been given in adoption by the widow of Harla to Devi Lal in the same Year 1951 (Samvat Year 2008). -:3:- S.B.CIVIL FIRST APPEAL NO.119/1991 Learned counsel for the appellant took pains to point out that there was enough evidence to prove the fact of adoption inasmuch as the plaintiff himself as PW-1 had categorically stated that he had been given in adoption by his natural mother and Devi Lal and his wife took the plaintiff in adoption and accepted him as their son, thus, giving an taking was proved. It was contended by the learned counsel for the appellant that the plaintiff had categorically alleged that the marriage of the plaintiff was performed by the deceased Devi Lal and that after the adoption the plaintiff had started to live as member of the family of the deceased Devi Lal. On the basis of the above as well as on the basis of the document allegedly executed by the deceased Devi Lal i.e. Exhibit-1 dated 30.04.1978, Devi Lal had categorically stated in Exhibit-1 that the mother of the defendant and her husband who used to take Devi Lal for treatment, fraudulently got the sale-deed executed in favour of the defendant and this fact he had stated while executing the document (Exhibit-1) on 30.04.1978. It was contended by the learned counsel of the appellant and in the light of the document (Exhibit-1) that the deceased Devi Lal had specifically stated that he had adopted the plaintiff and, therefore, in the light of the aforesaid narration in Exhibit-1 dated 30.04.1978 there was unimpeachable evidence to show that the deceased himself had admitted the fact that plaintiff -:4:- S.B.CIVIL FIRST APPEAL NO.119/1991 was the adopted son of the deceased Devi Lal. It was contended that the learned trial court erred in not relying upon the Exhibit-1. Learned counsel for the appellant pointed out that the learned trial court has committed a serious error in holding that the plaintiff was not living as a member of the family of the deceased when there was enough evidence to the trial. Learned counsel for the respondent, on the other hand, took paints to support the judgment of the learned trial court and pointed out that the learned trial court has given sufficient reasons while deciding the Issue No.1 against the plaintiff. The circumstances which were pointed out by the learned counsel for the defendant-respondent were that there was no document to show that the deceased Devi Lal had adopted the plaintiff as his son. It was further pointed out that it has also come on record that the terms between the deceased Devi Lal and the plaintiff prior to the death of Devi Lal on 25.05.1978 i.e. less than a month after the alleged execution of the document (Exhibit-1) on 30.04.1978, had never been cordial. On the contrary, there was litigation going on between the plaintiff and the deceased Devi Lal, the vendor even on 30.04.1978 when Exhibit-1 was allegedly executed. A revenue suit was going on in the court of A.C.M. between the plaintiff Galla and deceased -:5:- S.B.CIVIL FIRST APPEAL NO.119/1991 Devi Lal. The said suit had been filed by the plaintiff and the defendant Devi Lal in his written statement in the said suit, which has been filed as Exhibit A-1 and which is dated 25.04.1978 had categorically denied the fact of adoption of plaintiff Galla by him. This fact of having filed the suit against Devi Lal and that it was pending even on 30.04.1978 was admitted by the plaintiff in his cross examination. It was pointed out that the written statement (Exhibit A-1) which was filed on 25.04.1978 by the deceased Devi Lal is enough to rebut the evidence of the plaintiff that he was the adopted son of the deceased Devi Lal and, therefore, the document (Exhibit-1) produced by the plaintiff cannot be relied upon and is a suspicious piece of evidence. Learned counsel further pointed out that the plaintiff himself on being cross-examined had admitted to the fact on a question being put to him that the land of his natural father Harla had been mutated in the name of the plaintiff. The plaintiff was unable to explain the circumstances as to why the name of the plaintiff had been incorporated in the revenue record with regard to the agricultural land of the deceased Harla, the natural father of the plaintiff. In case the plaintiff had been adopted by the deceased Devi Lal, he would have ceased to have any right in the property of his natural father Harla. It was also pointed out that the specific question which was put to -:6:- S.B.CIVIL FIRST APPEAL NO.119/1991 the plaintiff as PW-1 which was to why he had given his father's name as Harla he could not explain and could only state that it was a mistake. The question and its answer are as follows:- "ूँ न :- खाते में आपने अपने िपता का नाम देवीलाल के बजाये हरला क् यों िलखाया? उत् त् र :- गलती से नाम िलखवा िदया ।" It was pointed out that the answer to the question clearly suggest that the plaintiff had admittedly mentioned in the revenue record his father as the natural father Harla and not Devi Lal. It was submitted that this amounted to an admission on the part of the plaintiff himself and rebuts the entire case of the plaintiff that he is the adopted son of the deceased Devi Lal. As against the plaintiff's evidence, learned counsel for the defendant pointed out that the defendant had examined the widow of the deceased Devi Lal, DW-2 Smt.Para who had categorically denied the fact of adoption of the plaintiff by the deceased. Learned counsel for the respondent also pointed out that the learned trial court also took into consideration the fact that the land in dispute was sold to the defendant vide registered sale-deed executed on 01.12.1977 and the alleged document dated 30.04.1987 (Exhibit-1) on which the plaintiff has sought to rely upon in which allegedly the deceased Devi Lal had -:7:- S.B.CIVIL FIRST APPEAL NO.119/1991 denied the fact of having sold the land to the defendant was executed merely a month before the deceased Devi Lal died whereas the stamp paper on which the said document was prepared was purchased on 24.01.1978. The person who purchased the alleged stamp paper has not been produced. The said document, it is submitted, has been purchased in suspicious circumstances and, therefore, the same has rightly been discarded by the learned trial court. It is also pointed out that the plaintiff has not been able to produce any of the witnesses of the community who might have been present at the time of the alleged adoption, nor has the plaintiff produced before the court the natural mother of the plaintiff to support his case that the plaintiff was given in adoption to the deceased Devi Lal by the widow by Harla, the natural mother of the plaintiff. It has further been submitted that there is no evidence produced by the plaintiff to suggest that the natural mother of the plaintiff was not alive at the time of recording of the evidence. Hence, an adverse inference for withholding the best evidence must be drawn against the plaintiff. Learned counsel for the respondent has further pointed out that Harla had two sons; the plaintiff Galla and his younger brother Harji Ram. From the evidence on record more particularly the statement of the plaintiff as PW-1 which was recorded on 17.01.1980, it was pointed out that as per the -:8:- S.B.CIVIL FIRST APPEAL NO.119/1991 plaintiff the adoption had taken place some 27-28 years prior to the recording of that statement. The plaintiff's own witness PW- 2 Bhagwana has stated as follows:- "देवीलाल ने वादी को गोद ले रखा था । गोद िलये 27-28 वषर् हो गये ।" In cross examination, the said witness has admitted as under:- "हरला के दो बेटे थे । उनमें से एक लडका और था जो 30 साल पिहले मर गया ।" It is pointed out that the aforesaid statement of PW-2 was also recorded on 17.01.1980 and from the statement of the said witness it is clear that the second son of Harla, Harji Ram had died prior to the alleged adoption and, therefore, the deceased Harla having been survived by his only child the plaintiff Galla, the plaintiff being the only child, could not have been given in adoption by the widow of Harla as such even on that account the alleged adoption is invalid. Needless to say that the aforesaid submission has been made only in the alternative assuming that the fact of adoption is held proved. I have given my thoughtful consideration to the rival submissions and I have also considered the reasoning given by -:9:- S.B.CIVIL FIRST APPEAL NO.119/1991 the learned trial court while deciding the Issue No.1 and I have perused the record and the evidence led by the parties. From the judgment of the learned trial court, I find that the learned trial court has taken pains to consider all the relevant circumstances while deciding the Issue No.1. Civil Suits being decided on the preponderance of probabilities, the circumstances which have been taken into account by the learned trial court and as pointed out by the learned counsel for the respondent are relevant. Firstly, there is the admission on the part of the plaintiff that in the revenue records pertaining to the lands of the deceased Harla, the natural father of the plaintiff, the land has been mutated in the name of the plaintiff Galla and in which the plaintiff has himself given out his father's name as Harla who was the natural father of the plaintiff and not Devi Lal, the adoptive father. The admission being the best evidence and though the admission can be explained but in the instant case, all that the plaintiff could state in cross examination was that his father's name was given by mistake (गलती से नाम िलखवा िदया ।). This in the facts and circumstances cannot be relied upon. The plaintiff as PW-1 though has stated in his statement that in most of the papers after his adoption he has given his -:10:- S.B.CIVIL FIRST APPEAL NO.119/1991 parentage i.e. the father's name as Devi Lal but no such document has been produced in evidence to support the aforesaid. This fact assumes importance in the light of the fact that there is an admission to the question put to the plaintiff as to why in the revenue record he has entered his father's name as Harla and not Devi Lal. Had there been any such document where the plaintiff had given his father's name as Devi Lal, the aforesaid statement could have been explained but in the absence of any such documentary evidence on record, the circumstance goes against the plaintiff. This could have been the best evidence in support of the plaintiff and the same not having been produced at trial when admittedly the same was in existence an adverse inference is liable to be drawn against the plaintiff. Apart from the above, the learned trial court has taken into consideration the document (Exhibit A-1) the written statement filed by Devi Lal himself in the suit filed by the plaintiff against Devi Lal. Exhibit A-1 is the written statement dated 25.04.1978. The suit had been filed in the year 1977 being Suit No.606/1977. The deceased Devi Lal has himself categorically denied in para 1 of the additional pleas that he had taken the plaintiff in adoption. On the contrary, he has stated that the plaintiff was the son of Harla. The aforesaid written statement filed by the deceased Devi Lal in the suit filed -:11:- S.B.CIVIL FIRST APPEAL NO.119/1991 by the plaintiff against the deceased Devi Lal is enough to negative the evidence of the plaintiff which has been taken as a circumstance by the learned trial court for discarding the evidence of Exhibit-1, the alleged document executed by the deceased Devi Lal wherein he has described the plaintiff as his adopted son and also stated that the sale-deed dated 01.12.1977 was executed by misrepresentation and fraud in favour of Madan Lal defendant on the part of his daughter and her husband who are the parents of Madan Lal defendant who is also the grandson of the deceased Devi Lal. The learned trial court, in my opinion, has rightly taken this as a circumstance against the plaintiff as it can hardly be explained as to why five days prior to the execution of the alleged document (Exhibit-1) on 30.04.1978 in the written statement (Exhibit A-1) dated 25.04.1978, in the suit filed by the plaintiff Galla, the deceased had denied the fact of adoption and had admitted the execution of the sale-deed in favour of the defendant Madan Lal. It may be stated that Madan Lal is none other than his own grandson being the son of his daughter Smt.Prem. It is not the case that the said suit filed by plaintiff against Devi Lal deceased was compromised withdrawn. In view of the above, I find no infirmity having been committed by the learned trial court while discarding the evidence of the plaintiff in the form of Exhibit-1. The learned -:12:- S.B.CIVIL FIRST APPEAL NO.119/1991 trial court has had the benefit of witnessing the demeanor of the witnesses and has rejected the testimony of the plaintiff in the light of the document (Exhibit A-1), the written statement filed by the deceased Devi Lal, which has been produced from the court and the authenticity of which is not in doubt. In that view of the matter, the submissions of the learned counsel for the appellant while challenging the findings on Issue No.1 cannot be sustained. The findings on Issue No.1 based upon the reasonings as mentioned therein do not call for any interference, in the facts and circumstances of the present case. In view of the above, I find no substance in this appeal and the appeal is accordingly dismissed. In the facts and circumstances, there shall be no order as to costs. (DALIP SINGH),J. Solanki DS, Jr.P.A.