Baldev Singh & Anr vs Ram Chander
2023 Latest Caselaw 8768 P&H

                            RSA No.2231 of 2016                    -1-                  2023:PHHC:079613

                             IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

                            102                                     RSA No.2231 of 2016 (O&M)
                                                                    Reserved on : 12.05.2023
                                                                    Date of Decision : 01.06.2023

                            Baldev Singh and Another                                         ....Appellants

                                                               VERSUS

                            Ram Chander                                                     ....Respondent

                            CORAM : HON'BLE MRS. JUSTICE ALKA SARIN

                            Present :    Mr. S. S. Chauhan, Advocate for the appellant.



                            ALKA SARIN, J.

1. The present appeal has been preferred against the judgments

and decrees dated 27.05.2014 and 11.01.2016 passed by the Courts below

dismissing the suit filed by the plaintiff-appellants.

2. The brief facts relevant to the present lis are that the defendant-

respondent is the nephew (brother's son) of the plaintiff-appellants. The

plaintiff-appellants filed a suit for declaration that they are owners in

possession in equal share in land measuring 103 kanal 08 marla situated in

Village Kemla, Sub-Tehsil Kanina, Tehsil and District Mohindergarh and

are entitled to get their names recorded in revenue record as such. It was

averred that their brother Nathu Singh son of Salhadi Singh died during life

time of Salhadi Singh in 1956 and the defendant-respondent is the only legal

heir of Nathu Singh. Their uncle (father's brother) Moola Ram was issueless

and was the owner of chak of land and the parties to the suit were cultivating

the suit land jointly and that the defendant-respondent has no share and

concern with the land of Moola Ram. However, in collusion with Shishpal

Lambardar and Rameshwar Joshi and to cause loss to the plaintiff-

appellants, an adoption deed no.16 dated 29.05.1957 was executed whereby JITENDER KUMAR 2023.06.01 15:19 I attest to the accuracy and integrity of this order/judgment.

Chandigarh
                             RSA No.2231 of 2016                    -2-                   2023:PHHC:079613

the defendant-respondent was given in adoption to Moola Ram which

adoption deed was liable to be set aside. It was submitted that the defendant-

respondent was the only heir of Nathu Singh and thus could not be given in

adoption and the adoption was not in accordance with the Hindu Adoption

and Maintenance, Act, 1956. It was further submitted that on the basis of the

adoption deed, mutation no.266 dated 08.12.1970 was entered and

sanctioned illegally which was liable to be set aside and that the adoption

deed is not valid, a result of fraud and liable to be set aside and its resultant

mutation is also liable to be set aside. Hence, the suit. In the written

statement the defendant-respondent took the plea that he was validly adopted

by Moola Ram. As per the defendant-respondent he was only 6 years old

when his natural father Nathu Singh expired and his mother Gomati was

having no source of income and any assistance from any corner. Then Moola

Ram took him in adoption in the presence of respectable inhabitants of the

community and ceremony of giving and taking had been performed and Gur

and Shakkar was also distributed. It was submitted that the defendant-

respondent was considered as son of Moola Ram by the inhabitants of the

village and the surrounding area. The adoption deed dated 29.05.1957 was

executed and got registered on 14.06.1957 in the office of Sub Registrar,

Mohindergarh about which the plaintiff-appellants were having notice and

knowledge since its execution. According to the defendant-respondent he

and the plaintiff-appellants were having joint khewat which they got

separated by mutual consent and since then the defendant-respondent is

coming as owner in possession of the estate of Moola Ram being his adopted

son.

3. The Trial Court framed the following issues : JITENDER KUMAR 2023.06.01 15:19 I attest to the accuracy and integrity of this order/judgment.

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1. Whether plaintiffs are owner in possession over

disputed property ? OPP

2. Whether adoption deed no.16 dated 29.05.1957 as

well as mutation no.266 dated 08.12.1970 is illegal

and as such liable to be set aside ? OPP

3. Whether the suit is time barred ? OPD

4. Whether the suit is not maintainable ? OPD

5. Whether the plaintiffs have no cause of action to

file the present suit ? OPP

6. Whether the plaintiffs be estopped from filing the

suit by their own act and conduct ? OPD

7. Whether the plaintiffs have not came before the

Court with clean hands ? OPD

8. Whether the defendant is entitled for special cost

under Section 35A of CPC ? OPD

9. Relief.

4. On the basis of the pleadings of the parties and the evidence on

the record, the Trial Court dismissed the suit of the plaintiff-appellants vide

judgment and decree dated 27.05.2014. The Trial Court inter-alia found that

the plaintiff-appellants had failed to prove their possession over the suit

property and also held that the plaintiff-appellants had no locus standi to

challenge the adoption deed which was a registered document. The suit was

also held to be time-barred. Aggrieved by the decision of the Trial Court, an

appeal was preferred which appeal was also dismissed vide judgment and

decree dated 11.01.2016. Hence, the present regular second appeal.

5. Learned counsel for the plaintiff-appellants would contend that JITENDER KUMAR 2023.06.01 15:19 I attest to the accuracy and the Courts below have erred in dismissing their suit on illegal and erroneous integrity of this order/judgment.

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                             RSA No.2231 of 2016                    -4-                  2023:PHHC:079613

grounds and that the adoption of the defendant-respondent was not valid and

was not established by the evidence on the record and was thus void ab-

initio and as a result the mutation entered and sanctioned in pursuance

thereof was also illegal and liable to be set aside.

6. I have heard learned counsel for the plaintiff-appellants.

7. In the present case both the Courts below have concurrently

upheld the adoption of the defendant-respondent by Moola Ram. The natural

mother of the defendant-respondent appeared as DW3 and supported the

adoption. The adoption was evidenced by a registered adoption deed.

Section 16 of the Hindu Adoption and Maintenance Act, 1956 lays down the

rule of presumption which requires that when there is a duly registered deed

of adoption the Court shall presume that the adoption has been made in

compliance of the provisions of the Act unless and until it is disproved. This

is no doubt a rebuttable presumption and the onus is upon the person

challenging such adoption to rebut it. The plaintiff-appellants, apart from

bald oral assertions, have not been able to disprove and dislodge the

adoption of the defendant-respondent. Learned counsel for the plaintiff-

appellants has not been able to point out any clinching evidence to prove that

the adoption was a result of fraud or not in accordance with law. The burden

of proof lay upon the plaintiff-appellants to prove that the adoption was

illegal which they have failed to discharge. Further, no explanation is

forthcoming as to why the adoption of 1957 was challenged in the suit filed

in 2008. Any person challenging an adoption has to file the suit within a

period of three years from the date of knowledge of adoption as is provided

in Article 57 of the Limitation Act, 1963. The suit was clearly beyond

limitation as held by both the Courts below.

JITENDER KUMAR 2023.06.01 15:19 I attest to the accuracy and integrity of this order/judgment.

Chandigarh
                             RSA No.2231 of 2016                  -5-                   2023:PHHC:079613

8. In view of the above, I do not find any illegality or infirmity in

the judgments and decrees passed by both the Courts below. The concurrent

findings of fact recorded by both the Courts below do not call for any

interference by this Court. No question of law, much less any substantial

question of law, arises in the present case. The appeal, being devoid of any

merit, is accordingly dismissed. Pending applications, if any, also stand

disposed off.

Whether reportable: YES/NO

JITENDER KUMAR 2023.06.01 15:19 I attest to the accuracy and integrity of this order/judgment.

Chandigarh