Jharkhand High Court

Janki Tatwa Alias Dogri vs Ram Lakhan Mandal (Ramni Tatwa ... on 22 February, 2023

                                       1

      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                     S.A. No. 106 of 2002

      1. Janki Tatwa Alias Dogri, son of late Kesobar Tatwa Alias Dagri, resident of
         village Hathnaga, P.S. Jarmundi, Sub Division and District Dumka,
      2. Kareli Devi, daughter of late Bishu Tatwa and widow of late Shripathi
         Tatwa, resident of village Makani, P.S. Jama, Sub Division and district-
         Dumka
                                                     ...... Appellants
                            Versus
      1. Ram Lakhan Mandal (Ramni Tatwa original name) son of Basukui Mandal
         resident of village Makani, P.S. Jama, Sub Division and District-Dumka
      2. Basukai Mandal, son of late Rupu Mandal
      3. Smt. Godli Devi, wife of Basukai Mandal, both resident of village Makani,
         S.C. Bara, P.S.Jama Sub division and District-Dumka
                                                     ...... Respondents
                   ---------

CORAM:       HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
                           ---------
For the Appellants          : Mr. Rajiva Sharma, Sr. Advocate
                              Mr. Ritesh Kumar, Advocate
For the Respondents         : Mr. Gaurav Abhishek, Advocate

11/Dated: 22/02/2023

Heard Mr. Rajiva Sharma, learned senior counsel assisted by Mr. Ritesh

Kumar, learned counsel for the appellants and Mr. Gaurav Abhishek, learned counsel

for the respondents.

2. This second appeal has been filed being aggrieved and dissatisfied with

judgment dated 28.05.2002 passed in Title Appeal No. 04 of 1999 by the learned

District Judge, Dumka allowing the appeal and setting aside the judgement dated

31.03.1999 passed in Title Suit No. 28/1995 by the learned Subordinate Judge-I,

Dumka.

3. The appellants/plaintiffs have instituted suit for declaration that the

defendant no. 1 is not the adopted son of Ramni Tatwain and that the registered deed

of adoption No. 194/1989 is void abinitio, in operative and fit to be cancelled. Apart

from that relief for cost has been sought. The said suit was numbered as Title Suit No.

28 of 1995 which was decided by judgment dated 31.03.1999 and decree signed on

13.04.1999 whereby the suit was decreed in favour of the appellants/plaintiffs.

Aggrieved with that the respondents/defendants preferred Title Appeal No. 04 of 1999

which was decided on 28.05.2002 whereby the learned appellate court allowed the

title appeal with costs and reversed the judgment dated 31.03.1999/decree signed

on 13.04.1999 by the learned trial court. Aggrieved with that the appellants/plaintiffs

have filed the present second appeal.

4. The case of the plaintiffs/appellants is that Debi Tatwa had two sons

Sahru Mehtar and Kishan Mehtar. Sahru had five sons, namely, Bishni Bhim,

Surju, Kailu and Bhupati. Plaintiff no. 2 Karelee is the wife of Bhisu Mahto who is

dead now. Bhim Bhupati and Surju died issueless. Kailu had two daughter Pateli

Debi and Ramnee Debi. Plaintiff no.1 is son of Patali. Ramni died issueless.

According to plaintiff, Kishan Mehtar died before Settlement leaving his widow

Rebati who has been recorded in respect of Kishan Mehtar's property

appertaining to Jamabandi No.31.Name of Sahru Mahtar was recorded with

respect to Jamabandi no.34. After the death of Rebati, Saharu, being the

surviving brother of Kishan, inherited this lands of jamabandi no.31. Further case

is that Ramni died issueless on 6.8.95. Though last rites and shradh of Ramnee

was performed by plaintiff no.1, yet, on the said date, (6-8-95) these defendants

wanted to cremate the dead body of Ramnee on the plea of adoption and

produced a deed of adoption bearing no.194/89 alleged to have been executed

by Late Ramnee. The plaintiffs have questioned the factum of adoption and

denied the validity of deed. They alleged that defendant no.2 (Basuki Mandal ) is

man of dubious character, sophisticated and influential Mahajan of the village

who had greedy eye over sophisticated the property of Ramni and with that

intent he frequently visited the house of Ramnee and gained confidence and

projected himself and her well wishers and assured to help and protect her

interest as Ramnee had some dispute with with her sister's son in the share and

enjoyment of produce out of the property inherited from her father Late Kailu

Tatwa. It is apprehended that defendant no.2 practised undue influence and

fraud on Ramnee with a view to get L.T.I. purporting to execute adoption by

alleging that she had adopted defen-dant no.1 as son on 7-5-82. As a matter of

fact, no ceremony of giving and taking took place. The defendants are by castes

Gwala and according to local custom, Ramnee could not even contemplated to

adopt a child of different caste. The story of adoption is false and fabricated. It is

then alleged that defendant no.1 was aged about 17 years on 7-5-82 and he has

not been transferred from the family of natural parents to the family of adoptive

mother. In the aforesaid circumstances, the present suit was filed for declaration

hereinabove specified.

5. The case of respondents/defendants is that the claim by filing one set of

W.S. they denied to have practiced fraud upon Ramnee Tatwain in the manner

suggested by the plaintiff in the plaint and it was alleged that the plaintiffs having full

knowledge since 1982 that Ramnee had adopted defendant no.1, but intentionally did

not filed suit during her life time obviously because the plaintiffs always used to

torture her and not allowing her to share the crop and as such, Ramnee having found

herself helpless, adopted the defendant no.1 as her son on 7-5-82 after performing all

religious ceremony and, that defendant no.1 has been treated as the son of Ramnee

and he is called Rameshwar Tantee. It is then the case that soon after getting

knowledge of adoption, the plaintiffs started torturing Ramni Debi and was compelled

to live separately. She then constructed a house over a piece of land of Kaila Layak.

She fell ill and died on 6.8.95 .Her last rites and Shradh was performed by defendant

no.1. It is claimed that plaintiff never performed the shradh nor they ever objected to

creamation of dead body of Ramnee. No fraud was played in executing the deed of

adoption. With these averments, prayer is for dismissal of suit.

6. By order dated 18.06.2003 this second appeal was admitted on the

following substantial question of law:-

"Whether the presumption under Section 16 of the Hindu Adoption and

Maintenance Act, 1956 in respect of Exhibit B/4 was sufficient for holding the adoption

valid in all respect".

7. Mr. Rajiva Sharma, learned senior counsel appearing for the appellants

submits that finding of the learned trial court that the ceremony of giving and

taking could not be proved by cogent evidence has been reversed by the learned

appellate court without considering and discussing the evidence on record and without

assigning any cogent reason. He further submits that D.W.1 Basuki Mandal

categorically stated in his deposition in para-13 that neither he called his priest nor

Ramni called her priest, D.W. further stated in para 13 that Sanjay Mishra is his priest

for the last 20 years but he did not call him. He further submits that D.Ws. evidence

itself proved that adoption was not valid and the learned appellate court without

discussing the material on record has reversed the finding of the learned trial court.

According to him relying only on the basis of Section 16 of the Hindu Adoption and

Maintenance Act, 1956 the learned appellate court proceeded to decide the appeal

which is against the mandate of law and in that view of the matter law point framed

by this court may be answered in favour of the appellants/plaintiffs.

8. Per contra, Mr. Gaurav Abhishek, learned counsel appearing for the

respondents submits that the learned trial court failed to take into consideration

Section 16 of the Hindu Adoption and Maintenance Act, 1956 and weakness of the

witness of the respondents/defendants will not come to rescue the

appellants/plaintiffs, when the appellants/plaintiffs themselves failed to prove their

case. He submits that learned appellate court has rightly considered the evidences as

well as documents and thereafter has proceeded to decide the case in the light of

Section 16 of the Hindu Adoption and Maintenance Act, 1956. He further submits that

in para 19 of the written statement of the defendant nos. 1 and 2 pleading was there

and the reason of execution of Exhibit B/4. He further submits that learned

appellate court has taken into consideration of the fact that plaintiffs have also

admitted that Ramnee put her L.T.I. on Exhibit B/4 in that view of the matter

execution of Exhibit B/4 is not in dispute which is adoptive deed. On these grounds

he submits that law point framed by this may be answered in favour of the

respondents/defendants. There is no illegality in the judgement of learned appellate

court and the learned appellate court has rightly reversed the finding of the learned

trial court.

9. In view of above submission of the learned counsel for the parties, the

Court has gone through L.C.R and the judgment of the learned trial court as well as

the appellate court and finds that the learned trial court has framed five issues to

decide the suit. The learned trial court while deciding the issue No. VI whether

adoption on deed no. 194/89 is valid, genuine and operative or not, the learned trial

court found that statement of witness leaves no room of doubt that in fact no

ceremony of giving and taking ever took place. D.W. 4 statement was taken into

consideration by the learned trial court and the court found that he did not attend the

function of adoption however he candidly claimed that he had participated in shradh

ceremony of Ramnee which was performed by Rameshwar Tantee. The Court held

that if he is family barbar of Ramni he could have knew about other details of her

family. He has accepted that he knew nothing about the family of Ramnee. He was

not knowing as to the parentage of Ram Lakhan. He had not attended shradh of

Ramnee. He has not seen the house of Karilee. He was not knowing even the house

of Basuki. Considering all these statements, learned trial court found that he is quite

stranger and deliberately brought by defendant for the sake of counting the numbers.

Learned trial court further held that natural mother has not been examined in this

case. D.W.1 has admitted in his evidence in para 11 that his son had studied upto 5 th

class. D.W.2 admitted that Lakhan is aged about 30 years. In para 4 he admitted

that Ram Lakhan was studying in High School. Considering all these aspects the

learned trial court has held that the deed is forge and fabricated.

10. The learned appellate court held that in view of Evidence Act burden is

on the person who is alleging fraud to prove the fraud and accordingly it was upon

the plaintiffs/appellants to prove that the defendants committed fraud in creating

executing the deed of adoption (Ext. B/4). It is an admitted fact that there were

strained relation between Ramnee Devi in her life time with the plaintiffs/appellants

and their ancestors. Considering this aspect of the matter the learned appellate court

has come to the conclusion that the plaintiffs and their ancestors would not have got

opportunity to know what was being done by Ramnee Devi particularly about the

adoption of D.W.1 by Ramni Devi. The appellate court held that the Ramni Devi must

have had concealed the adoption of defendant no. 1 by her from the plaintiffs and

their ancestors for few beginning years because plaintiffs were the interested persons

to oppose the adoption by Ramni Devi of any one. The learned appellate court

further held that once registered deed of adoption is there the case is required to be

decided in the light of Section 16 of the Hindu Adoption and Maintenance Act, 1956

and further discussed the evidences of D.W.1 and D.W.2 as well as Exhibit B/4 and in

para 19 of the written statement of the defendants and considering all these aspects

the learned appellate court came to the conclusion that execution of exhibit B/4 which

is adoption is valid one. The L.T.I. of Ramnee on Ext. B/4 was not denied by the

plaintiffs/appellants and in that view of the matter the execution of Exhibit B/4 was

not in dispute. The learned appellate court found that the appellants/plaintiffs have

failed to prove Exhibit B/4 as false and forged documents and further held that the

defendant no. 1 was adopted legally by Ramni Devi and defendant no. 4 was legally

adopted son of late Ramni Devi. By the cogent reason the learned appellate court

has held that the suit was barred by limitation in para 43 onwards.

11. In view of the discussions made by the learned appellate court as has

been discussed hereinabove it transpires that it has been proved that there was

strained relationship between Ramnee Devi and the plaintiffs/appellants. The L.T.I. of

Ramni on Exhibit B/4 was admitted by the plaintiffs/appellants. It is settled law that

when a person claiming anything on the pleading onus lies upon him to prove the

case. The weakness of the witness of the defendants will not rescue the person who

is claiming in the suit of any prayer in the light of Section 102 of the Evidence Act and

this aspect of the matter has been recently considered by the Hon'ble Supreme

Court in the case of " Smriti Debbarma (Dead) through Legal Representative

V. Prabha Ranjan Debbarama and others" reported in 2022 Live Law (SC) 19

wherein para 31 the Hon'ble Supreme Court has held as under:-

"31. The burden of proof to establish a title in the present case lies upon the plaintiff as this burden lies on the party who asserts the existence of a particular state of things on the basis of which she claims relief . This is mandated in terms of Section 101 of the Evidence Act, which states that burden on proving the fact rests with party who substantially asserts in the affirmative and not on the party which is denying it. This rule may not be universal and has exceptions , but in the factual background of the present case, the general principle is applicable. In terms of Section 102 of the Evidence Act, if both parties fail to adduce evidence, the suit must fail. Onus of proof, no doubt shifts and the shifting is a continuous process in the evaluation of evidence, but this happens when in a suit for title and possession, the plaintiff has been able to create a high degree of probability to shift the onus on the defendant. In the absence of such evidence, the burden of proof lies on the plaintiff and can be discharged only when he is able to prove title.The weakness of the defence cannot be a justification to decree the suit. The plaintiff could have succeeded in respect of the Schedule 'A' property if she had discharged the burden to prove the title to the Schedule 'A' property which squarely falls on her. This would be the true effect of Sections 101 and 102 of the Evidence Act. Therefore, it follows that the plaintiff should have satisfied and discharged the burden under the provisions of the Evidence Act, failing which the suit would be liable to be dismissed. Thus, the impugned judgment by the High Court had rightly allowed the appeal and set aside the judgment and decree of the trial court. We, therefore, uphold the findings of the High Court that the suit should

be dismissed. We clarify that we have not interfered or set aside any observations of the High Court in re the Tripura Land Revenue and Land Reforms Act, or defendants' claim etc. Notably, M/s. Hotel Khosh Mahal Limited is not a party to the present proceedings."

12. Non examination of the adoptive mother, deceased mother is not fatal in

deciding the case if it is proved by way of other evidence. It is settled law that it is

quality and not quantity of evidence that is relevant. Section 16 of the Hindu

Adoption and Maintenance Act, 1956 was subject matter in the case of "Laxmibai

(Dead) through LRS & Another Vs. Bhagwantbuva (Dead) through LRS. and

Others" reported in (2013) 4 SCC 97 wherein para 38 to 40 the Hon'ble Supreme

Court has held as under:-

"38. Admittedly, before the trial commenced, Smt Laxmibai had died. The other witnesses who entered the witness box however proved the adoption ceremony and adoption deed. Smt Gopikabai was not examined. Thus, the question that arises is : Whether the court has to weigh or count the evidence and also whether a deposition of a witness is to be doubted merely on the ground that the witness happened to be related to the plaintiff?

39. In the matter of appreciation of evidence of witnesses, it is not the number of witnesses but quality of their evidence which is important, as there is no requirement in law of evidence that any particular number of witnesses is to be examined to prove/disprove a fact. It is a time-honoured principle that evidence must be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value provided by each witness, rather than the multiplicity or plurality of witnesses. It is quality and not quantity, which determines the adequacy of evidence as has been provided by Section 134 of the Evidence Act. Where the law requires the examination of at least one attesting witness, it has been held that the number of witnesses produced do not carry any weight. [Vide Vadivelu Thevar v. State of Madras [AIR 1957 SC 614 : 1957 Cri LJ 1000] ; Jagdish Prasad v. State of M.P. [1995 SCC (Cri) 160 : AIR 1994 SC 1251] ; Sunil Kumar v. State (Govt. of NCT of Delhi) [(2003) 11 SCC 367 : 2004 SCC (Cri) 1055 : AIR 2004 SC 552] ; Namdeo v. State of Maharashtra [(2007) 14 SCC 150 : (2009) 1 SCC (Cri) 773 : AIR 2007 SC Supp 100] ; Kunju v. State of T.N. [(2008) 2 SCC 151 : (2008) 1 SCC (Cri) 331 : AIR 2008 SC 1381] ; Bipin Kumar Mondal v. State of W.B. [(2010) 12 SCC 91 : (2011) 2 SCC (Cri) 150 : AIR 2010 SC 3638] ; Mahesh v. State of M.P. [(2011) 9 SCC 626 : (2011) 3 SCC (Cri) 783] and Kishan Chand v. State of Haryana [(2013) 2 SCC 502 : JT (2013) 1 SC 222] .]

40. Furthermore, there cannot be any dispute with respect to the settled legal proposition, that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue. Without this, it is not possible to impeach his credibility. Such a law has been advanced in view of the statutory provisions enshrined in Section 138 of the Evidence Act, 1872, which enable the opposite party to cross-examine a witness as regards information tendered in evidence by him during his initial examination-in-chief, and the scope of this provision stands enlarged by Section 146 of the Evidence Act, which permits a witness to be questioned, inter alia, in order to test his veracity. Thereafter, the unchallenged part of his evidence is to be relied upon, for the reason that it is impossible for the witness to explain or elaborate upon any doubts as regards the same, in the absence of questions put to him with respect to the circumstances which indicate that the version of events provided by him is not fit to be believed, and the witness himself, is unworthy of credit. Thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box, to give a full and proper explanation. The same is essential to ensure fair play and fairness in dealing with witnesses. (See Khem Chand v. State of H.P. [1994 Supp (1) SCC 7 : 1994 SCC (Cri) 212 : AIR 1994 SC 226] , State of U.P. v. Nahar Singh [(1998) 3 SCC 561 : 1998 SCC (Cri) 850 : AIR 1998 SC 1328] , Rajinder Pershad v. Darshana Devi [(2001) 7 SCC 69 : AIR 2001 SC 3207] and Sunil Kumar v. State of Rajasthan [(2005) 9 SCC 283 : 2005 SCC (Cri) 1230 : AIR 2005

SC 1096] .)"

13. In view of reasons and analysis the Court comes to the conclusion that

the judgment of the learned appellate court is well founded judgment and law point

framed by this Court is answered to the effect that presumption under Section 16 of

the Hindu Adoption and Maintenance Act, 1956 in respect of Exhibit B/4 was

sufficient for holding the adoption valid in the light of above discussions as the

plaintiffs/appellants have failed to prove that the Exhibit B/4 was not carrying L.T.I. of

Ramnee Devi rather that has been admitted as discussed hereinabove. The law point

is answered accordingly. This second appeal is dismissed.