Punjab-Haryana High Court

Shyam Sunder vs Hari Ram on 27 January, 2025

                                    Neutral Citation No:=2025:PHHC:011969




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     IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
                                                RSA-3972-2016 (O&M)
                  Date of pronouncement:: 27.01.2025
Shyam Sunder
                                                        ...Appellant(s)
                                 Vs.
Hari Ram & Others
                                                     ...Respondent(s)
CORAM:            HON'BLE MS. JUSTICE NIDHI GUPTA

Present:-           Mr.Munish
                        Munish Gupta, Advocate
                    Mr. Akash Mehta, Advocate
                    for the appellant.

                    Mr. Jayant Yadav,, Advocate for
                    Mr. P.R. Yadav, Advocate
                    for the respondent No.1..

                    ***
NIDHI GUPTA, J.

The defendant No.2 is in second appeal before this Court

against the concurrent findings/ findings/ judgments and decrees of the learned

Courts below whereby the suit of the plaintiff/respondent no.1, for

partition of suit property as described in the plaint; has been decreed with

costs and the plaintiff has been held entitled for separate possession by way

of partition to half share of the suit property that is the residential haveli haveli.

2. The parties shalll hereinafter be referred to as per their

status before the learned trial Court i.e. the appellant is defendant No.2 and

the contesting respondent No.1 as plaintiff.

3. The present litigation is between two real brothers. The

plaintiff had filed the present pre suit on 1.8.2005 for partition of his half share

in the residential Haveli/The suit property which was surrounded as

follows: East: shop of Pannalal; West: Street measuring 3 feet; North: Road;

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South: Street measuring 3 feet. The he plaintiff had filed the present suit with

the assertion that the suit property is ancestral in nature. To appreciate the

controversy at hand, it will be helpful to refer to the pedigree table of the

parties, which is as under:-

under:

Bhuramal I Nathu Ram I I I I Matadin died Bhagwan Dass Asha Ram issueless I I I I I Hari Ram I adopted son (plaintiff) Kidarnath I Smt. Kalawati alias Lilawati widow I I I I I I I I Hari Mohan Shyam Sunder Savitri Premlata Santosh Saroj Ram Lal (D1) (D2/Appellant) (D4) (D5) (D6) Bai (Pff.) (D7)

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4. As per the plaintiff, deceased deceased-Asha Ram was issueless,

and he had adopted the plaintiff with the consent of the parents of the

plaintiff on the Dussehra festival of the year 1962 by performing giving and

taking ceremony and since then the plaintiff plaintiff-Hari Hari Ram is considered as

adopted son of Asha Ram. It was further averred that the suit property is

joint between the parties and has not ever partitioned. Now due to joint

status of the suit property there is possibi possibility lity of dispute between the

parties. Hence, the present suit has been filed.

5. Upon notice, the defendant No. No.1 appeared and filed

written statement disputing the above said pedigree table and asserting

that there was no relation between the plaintiff aand nd Asha Ram nor was he

ever adopted by Asha Ram.

Ram It was further averred that the plaintiff works in

the office of an Advocate and was therefore, cleverly manipulating the

relevant documents and record in order to create evidence in his favour;

that the suit had been filed by the plaintiff for grabbing the suit property;

that in fact the suit property had been partitioned as far back as in the year

1976 by Kidarnath during his lifetime and defendant No.2 had

reconstructed the suit property in 2002 to which the plaintiff had never

objected. Written statement was filed along the same lines by defendant

No.2/appellant /appellant. The plaintiff filed replication to the written statement of

defendants No.1 and 2 reiterating the averments made in the plaint plaint, and

deny those made in the written statements of the said defendants no.1 and

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6. Defendants efendants No. 3, 4 and 6 had filed separate written

statement admitting the claim of the plaintiff. Defendants No.5 and 7 were

proceeded against ex parte vide order dated 08.09.2005 08.09.2005.

7. On the basis of the pleading of the parties, following

issues were framed by the learned trial Court Court:-

"1. Whether the plaintiff is adopted son of Asha Ram? OPP

2. Whether the plaintiff is co-sharer sharer in the suit property? OPP

3. Whether plaintiff has no cause of action to get the relief of possession by way of partition? OPP

4. Whether the suit is not maintainable? OPD

5. Relief."

8. Upon consideration of the entire oral and documentary

evidence brought on record by the parties, the suit was decreed in favour

of the plaintiff vide judgment and decree dated 3.7.2013 3.7.2013. Civil Appeal

No.108RT of 2013 was filed by the defendant No.2/appellant herein on

29.07.2013; which has been dismissed by the lld District Judge, Narnaul

vide judgment and decree dated 17.02.2016 17.02.2016. Hence, the present second

appeal.

9. Learned counsel for the he defendant No.2 lays challenge

to the concurrent judgments and decrees of the learned Courts below

primarily on the following planks of argument:

10. It is submitted that it had been asserted by the plaintiff

that the suit property was ancestral in nat nature, however, no evidence

whatsoever was led by the plaintiff in support to prove the said fact. It is

contended that in actual fact, the suit property belonged to Kidarnath.

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This is evident from the house tax receipts issued by the Municipal

Corporation produced produced by the defendant to show that Kidarnath is owner

of suit property. Further, even if the defendant admits it to be an

ancestral, it cannot be taken as ancestral. The four stages of inheritance as

required to established the ancestral nature of the p property were not

proven by the plaintiff, in the present case.

11. It was further asserted that the suit property already

stood partitioned by Kidarnath in the year 19 1976 in pursuance to which the

plaintiff had received his share.

share This also clearly show shows that the property

was not ancestral in nature, therefore, share of the same will devolve

equally to the plaintiff and the defendants and half share of Asha Ram,

should not go to the plaintiff alone.

12. It is further contended by learned counsel for the

defendant No.2 that the plaintiff was not entitled to half share in the suit

property also for the reason that he was never adopted by Asha Ram Ram.

Admittedly there is no adoption deed produced on record by the plaintiff.

Furthermore the mandatory rigours of Sections 7 and 11 of the Hindu Furthermore,

Maintenance and Adoption Act (hereinafter referred to as "the Act") Act"), have

not been complied with, with inasmuch as the adoption has not been proven in

accordance with law.

law

13. It is contended that the requirements thereof have not

been complied with by the plaintiff. There is nothing on record to show

whether Asha Ram was married or not. Onus was upon the plaintiff to

prove that requirement of Sections 7(vi) and 11 of the Act are met.

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However, the same has not been done. Me Merely mentioning Hari Ram as

son of Asha Ram in certain documents would not prove Hari Ram to be

adopted son of Asha Ram. The stipulated requirements of Sections 7 and

11 have to be met.

14. It is reiterated as has been stated in Para 3 of the

written statement, atement, the suit property belong belonged to Kidarnath and he had

partitioned the same in his lifetime and plaintiff has no share in the suit

property.. It is accordingly prayed that the impugned judgments and

decrees be set aside. In support, learned earned counsel relies upon judgment of

the Hon'ble Supreme Court in "M. Vanaja Vs. M. Sarla Devi (Dead)" Law

Finder Doc ID # 1701988, 1701988 to submit that no adoption is valid unless made

with consent of wife and actual ceremony of adoption adoption. Learned counsel

also relies upon judgment ju of this Court in "Tehal Singh & Another Vs.

Shamsher Singh (since deceased) through L.Rs" Law Finder Doc ID #

772430, wherein it has been held that in order to prove the ancestral

nature of suit property, 4 lines of inheritance are to be proved.

15. Per contra, learned counsel for the plaintiff/respondent

No.1 vehemently opposes the prayer made on behalf of the

appellant/defendant No.2 and submits that there is sufficient cogent

evidence on record to irrefutably prove that the suit property was joint in

nature. It is contended that in fact it has been admitted by the defendant

himself as DW1 that the suit property was ancestral. It is submitted that it

has even been admitted by the defendant No.2 that the plaintiff had been

adopted by Asha Ram. Besides Besides that, there are numerous

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documents/sufficient nts/sufficient evidence on record to prove that Asha Ram had

adopted the plaintiff. Learned counsel accordingly prays for dismissal of

the present appeal.

16. No other argument is raised on behalf of the parties.

17. I have heard learned counsel for the parties and

perused the case file in great detail.

18. Briefly stated, the case has set up by the plaintiff in the

plaint is that in Para No.2 the Plaintiff has claimed that when he was 14

years old, then his natural parents, in the year 1962, on the occasion of

Dussehra, by performing the ritual of 'Giving and Taking', gave plaintiff in

adoption to Asha Ram son of Nathu Ram; and thus, since then, he is the

adopted son of Asha Ram, which is reflected in Voter Card, Ration Card

and other documents.

19. In Para No.3, Plaintiff has claimed that the suit

property is a Residential Haveli and the ancestral house of the parties;

and thus, Plaintiff, being adoptive son of Asha Ram, is entitled to half

share, whereas the defendants (being LRs of Kidarnath son of Bhagwan

Dass, are entitled to remaining half share.In Para No.4, it has been

pleaded by Plaintiff that there was another house in dilapidated condit condition

in Mohalla Chowk, Mohindergarh and the same was gifted to Aggarwal

Sabha by the Plaintiff, being owner of half share, and Kidarnath being

owner of another half share. Thus, the plaintiff sought partition of the suit

property by claiming himself to be owner owner of half share, being adopted son

of Asha Ram.

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20. As noticed above, the suit was resisted by the

appellant/defendant no.2 no. on various grounds grounds, but primarily on the two

planks that the suit property was not ancestral in nature, but was in the

ownership of the father of the parties, part , namely Kedarnath; and that the

plaintiff had not been adopted by Asha Ram. Each of these arguments is

dealt with in detail here in below.

21. The first bone of contention between the parties is in

regard to the nature of the suit property. That is whether it was ancestral

or not. This assumes assume importance as, if the suit property is ancestral the then

Kidarnath and Asha Ram would have equal shares shares; and therefore, plaintiff

being adopted son of Asha Ram, would have the half share of Asha Ram.

The contention on behalf of the defendant No.2/appellant is that the suit

property is not ancestral in nature and that there is no document on

record toestablis establishh ancestral nature of the suit property. It has also been

contended that to the contrary, there are house tax receipts receipts/Ex.DW2/A,

and other receipts/documents Ex.DW3/A, A, Ex.DW3/B, Ex.DW Ex.DW2/C and

Ex.DW2/D, issued by the concerned Municipal Corporation and ancillary

departments, to indicate that Kidarnath was the owner of the suit

property,, thus, showing that the suit property was not ancestral. However,

after giving my thoughtful consideration to the very persuasive argument

raised on behalf of the appellant, appellant, I find myself unable to agree with the

same as the defendant No.2 himself as DW1 has admitted in his

evidence/testimony (available available from pages 264 to 268 of the LCR LCR) that the

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suit property was ancestral. The appellant has categorically admitted in

his cross-examination examination at Page No. 264 of the LCR that "Mutnaza Haveli

dadalay hai"" that means the disputed Haveli is ancestral one. Therefore

from this statement in itself it is clear that the property is ancestral.

22. Even in his cross-examination

the defendant ndant no.2 has stated that: "It It is correct that old portion of the

remaining Haveli is in existence. The partition that had taken place in

1976, the same was done between three brothers and my father. It is

correct that in the year 1976 Bhagwan Dass and Asha Ram both were

alive, Asha Ram and Bhagwan Dass raised no objection regarding

partition. In the partition the plaintiff was given on one plot which was in the

possession of my father and grandfather and its rregistry was got

executed. In the disputed haveli no share was kept for Hari Ram. There

was no writing regarding leaving of share by Hari Ram Ram......." Further it has

also come that:"...except that Hari Ram, Mohan Lal and Shyam Sunder were

given ½ share each. Bhagwan Dass, Kedarnath and Asha Ram were not

given any share in the haveli because they were residing with us. I and

Mohan Lal did not get the entry of half-half half half share of the disputed haveli

which was allotted allotted to us in partition in the record of the committee. I do

not know the property number of the disputed haveli. The haveli is

assessed to house tax and the same is in the name of Kedar Nath. I did not

deposit house tax of my this haveli, I do not know as to whether Mohan

Lal had deposited the same or not. It is correct that in my affidavit I have

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got mentioned that after 1980 Hari Ram is getting prepared all his

documents by mentioning himself as adopted son of Asha Ram.

Ram." Further

at Page No. 268 it has been stated that "...electricity electricity and water connection

is in the name of Kidar Nath.. I never tried to get the electricity and water

connection in my name. I do not know that after 1980 till date ration Card,

water list, gas connection, water and electricity connection etc. in all these

places name of the plaintiff has been mentioned as adopted son of Asha

Ram."

23. From the above evidence it is proved that it is the

admission of DW1 that the property is ancestral ancestral; that the haveli in

question was never partitioned;

partitioned and there is no record that the partition

had ever taken place. Furthermore, the said alleged partition of the suit

property, although stated to be of the year 1976, is admittedly not

reflected in the revenue rev record.The The above statements of the appellant

are a judicial admission, and are also proven from the findings of Ld.

Appellate Court which shall be referred to hereinafter.

24. Further, it is established proponent of law that as per

Section 58 of the Indian Evidence Act, admitted facts do not need to be

proved. As per the said provision of Section 58 of the Indian Evidence Act

no fact need be proved in any proceeding which the parties theret thereto or

their agents agree to admit in the hearing. Therefore admission regarding

property being ancestral in nature by the present appellant itself proves

that nature of the suit property.

property Thus, in view of the own admission of

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defendant no.2/DW1 that suit property property was ancestral, no further

evidence was required to establish the ancestral/joint nature of the suit

property. This admission has not been denied by the appellant. It has

further been held by the Hon'ble Supreme Court that under section 58 of

the Evidence Act and Order 3, rule 5 of the Code of Civil Procedure, 1908,

where there was no reason for supposing that the parties are colluding,

there was no reason why admissions of the parties should not be treated

as evidence just as they are treated in other other civil proceedings.

proceedings.As such, the

defendant no.2 can also derive no benefit from the relied relied-upon

documentary evidence in the form of above above-mentioned house tax

receipts, et cetera. Further more, the said receipts have admittedly been

issued from the year 2004-2012, i.e. after the death of Kedarnath, who

admittedly died in the year 2000.

25. It is pertinent that the question of entitlement of

defendants to shares in the suit property, or of giving shares to brothers

and nothing to sisters/defendants sisters/defendants no.4 to 7, would arise only if the suit

property was ancestral; and the defendant No.2 has admitted as DW1

that no share was given to the sisters and property was divided only

between brothers and Kidarnath.

Kidarnath This further establishes the ancestral

character of the suit property.

26. The next argument on behalf of the defendant no.2 is

that the plaintiff was never adopted in accordance with law by Asha Ram Ram;

and, as such, was not eligible to solitarily receive the half share of Asha

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Ram to the suit property.

property However, this argument of the appellant is

fallacious as again, the appellant has himself admitted the plaintiff to be

adopted son of Asha Ram.In Ram.In this regard, I refer to the following list of

documents which prove that the respondent was adopted son of Asha

Ram:-

a) Ex.PW2/A (available at pages 285-286 286 of the LCR LCR) which is the Power of

Attorney/Affidavit /Affidavit dated 10.04.2001 executed by defendant No.2 in

favour of the plaintiff wherein defendant No.2 has himself shown the

plaintiff to be the adopted son of Asha Ram.

Ram. In between the appellant has

mentioned that "Hari "Hari Ram is the adopted son of Asha Ram Ram";

b) Ex.PW4/A A Registry No. 4305 dated 17.01.1996 (available at page 287 of

the LCR),, which has been signed by defendant No.2, and here also in the

signatures it is mentioned that Hari Ram is the adopted son of Asha Ram Ram.

This document also proves that the appellant was always in knowledge of

the adoption as this document also bears the signatures of the appellant appellant;

c) Ex.PW4/B Gift Deed dated 03.02.1988 executed by Kidarnath/father of

appellant and the plaintiff, whereby land was gifted to Aggarwal Sabha

which also clearly shows Hari Ram as the adopted son of Asha Ram Ram;

d) Ex.PW7/B Ration Card shows that Hari Ram is the adopted son of Asha

Ram.

27. Thus, from the above documents, it is established that

the appellant/defendant no.2 has himself acknowledged and referred to

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the plaintiff as the adopted son of Asha Ram. No doubt, the adoption of

the plaintiff by Asha Ram in the Dussehra of 1962 was an oral adoption as

was the more in those times, times however, this will be of no help to the

appellant as the Pandit who performed the ceremony of adoption

appeared as PW6 and proved the adoption. As such the argument of the

appellant regarding non-compliance non compliance with the provisions of the Act, is also

of no help.

28. The arguments of learned counsel for the app appellant in

respect of non-compliance non compliance with mandatory provisions of the Act are

misplaced also because, because as per Section 7 of the Act it is only stipulated

that the adoption cannot be executed without the consent of the wife of

the adoptive father. In the present present case, admittedly, wife of Asha Ram had

expired. As such, there was no question of or requirement of prior

permission from her, and therefore, no violation of the above provision.

As regards Section 11, there is no violation of the said provision as well as

admittedly, at the time of adoption, Asha Ram had no living son/issue.

The appellant can thus, derive no benefit from the relied relied-upon judgments

as the same are distinguishable on facts and Law, and, as demonstrated

above, are not applicable in the facts facts and circumstances of the present

case.

29. Moreover, not just the appellant, the said adoption has

been admitted by defendant No.3/the the mother of the plaintiff and

defendant no.2;

no.2 as also the defendants No.4 and 6 who are the real

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sisters of the defendant No.2 who have admitted in their written

statement that the adoption had taken place in 1962 1962. It is but trite that

once the mother of the appellant and the plaintiff ha has admitted the

adoption, little other evidence is required.

30. These facts have been noticed by the learned trial

Court in Paras Para 15 and 16 of the judgment dated 03.07.2013, which are as

under:-

"15. After giving thoughtful consideration to the entire matter coupled with the evidence produced by the parties and having regard to the contention raised by the learned counsel for the parties, I again scanned the case file minutely. First of all, the perusal of the pedigree table as mentioned by the plaintifff shows that the plaintiff Hari Ram is natural son of Kidar Nath and Kalawati alias Lila Devi whereas the other defendants are also the descendant of Kidar Nath. As per the plaintiff Hari Ram he was adopted by Asha Ram with consent of his parents in the year ar 1962 on Dushera. At this juncture, it is not disputed between the parties that the deceased Asha Ram did not have any natural issue. It is also apt to note here that in the present case the defendant no.3 Kalawati i.e. natural mother of the plaintiff ha has admitted the factum of adoption of plaintiff Hari Ram by Asha Ram in the year 1962. The claim of the plaintiff is also not disputed by his natural sister Savitri Devi the defendant no.4 and Santoshbai the defendant no.6. Now the present suit is contested by the defendant no.1 Mohan Lal and the defendant -no.2 Shyam Sunder. Importantly the defendant no. 1 Mohan Lal has not come into witness box in order to support his claim.

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16. At this juncture, my attention went to the power of attorney executed by the defendant efendant no.2 Shyam Sunder Ex.

PW2/A categorically shows that the plaintiff Hari Ram has been shown as adopted son of the deceased Asha Ram. The said power of attorney was executed on 10.4.2001. Thereafter my attention went to the certified copy of registe register no. 4305 dated 17.1.1996 Ex.PW4/A which has been signed by Bhagwan Dass and Shyam Sunder and the plaintiff Hari Ram. Importantly, Hari Ram the plaintiff has been shown here as adopted son of Asha Ram. Similarly, in the gift deed dated 3.2.1988 Ex. PW4/B Hari Ram has been shown as adopted son of Asha Ram. It is notable here that the gift deed has been executed by Kidar Nath natural father of the plaintiff and the defendants. Therefore, on the basis of the abovesaid documents it can be safely presume here tthat the adoption of the plaintiff Hari Ram by Asha Ram was in previous knowledge of Kidarnath and the contesting defendant Shyam Sunder. Moreover, the above noted gift deed and sale deed is duly proved by PW2 Deshraj record keeper and PW3 Shri Krishan KrishanYadav Advocate as notory public. In his cross-examination, examination, PW3 Sh Shri Krishan Yadav has categorically ly stated that he knows both the parties personally and he read out Ex.PW2/A to them before attesting the same. In the same fashion, PW4 Shukunt Kumar registration clerk has also proved the certified copy of gift deed dated 5.2.1988 .2.1988 and sale deed dated 17.1.1996 as per the record record...."

31. In respect of the mother, the learned lower Appellate

Court in Para 41 of its judgment and decree dated 17.2.2016 has observed

as follows: -

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"41....When there is admission of Lilawati, the mother of the plaintiff & the contesting defendants, and when PW6 Sant Lal, who performed the ceremonies of adoption as Pundit and who testified that Asha Ram had adopted Hari Ram the eldest son of Kidar Nath as his son, then the appearance of name of plaintiff in some of the docu documents or some judicial proceedings as son of Kidar Nath does not support the contention of the defendant that Hari Ram was not adopted by Asha Ram...".

32. It has also been contended by the appellant that the

above said documents have been manufactured aand procured by the

plaintiff in order to create evidence in his favour favour; and that this has been

accomplished as the plaintiff was working as a Clerk in the office of an

advocate. However, they said argument of the appellant is baseless as as, as

demonstrated hereinabove, hereinabove, the appellant himself has admitted in the

above documents that the plaintiff was the adopted son of Asha Ram.

33. Further, the following findings and observations of the

learned Lower Appellate Court clinch the entire issues involved in the

present case. The relevant para 32 to 39 of the judgment and decree

dated 17.2.2016, are as follows: -

"32. It is the plea of the appellant that all the co co-owners of the suit property has not been joined as parties in the present suit. The present suit property as per the case of the plaintiff belong to Nathu Ram. So all the legal heirs were necessary parties. Nathu Ram was having o one daughter namely Narayani Bai but her legal heirs have not been joined as

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parties this case. But there is hardly any force in this plea of the learned counsel for the appellant because no such plea was taken by appellant Shyam Sunder in his written statement.

ment. Name of Narayani Bai as legal heir of Nathu Ram has appeared for the first time in the grounds of appeal, so on this count it cannot be said that all the legal heirs of Nathu Ram has not been joined as parties. Moreover it is the plea of the appellantt that the property in question belong to Kidar Nath and did not belong to NathuRam, so it is not proper for the appellant to take this plea that Narayani Bai was necessary party as per the grounds of appeal.

33. The next plea of the appellant that all th the properties have not been included in this suit is again of no help because no such plea of partial partition has been taken by the appellant in his written statement.

34. So far as the plea of the appellant is concerned that the plaintiff has failed to produce any iota of evidence on record to prove that present suit property was initially owned by Nathu Ram son of Shri Bhuramal, so the plaintiff was not entitled to seek partition rtition is again highly misplaced. Though the plaintiff has claimed that the suit property belong to Kidar Nath his father and biological father of Hari the plaintiff and that during his lifetime in the year 1976 Kidar Nath had partitioned the plot in question tion i.e. Haveli and the plot measuring 693 square yards situated in Mohalla Khojawara, which was in possession of his father, was given to Hari Ram, the plaintiff and Hari Ram has no concern with the Haveli in dispute but again there is no proof on record that it was Kidar Nath, who was absolute owner of the Haveli rather the defendant Shyam Sunder when appeared as DW1 has

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admitted that the suit property was ancestral one. So there is admission of defendant Shyam Sunder that this property belonged to Nathu Ram, their grand father. Even he has admitted that in the year 1975 both Bhagwan Dass, who was father of defendant Shyam Sunder and Asha Ram were alive but according to him both Bhagwan Dass and Asha Ram had no objection regarding partition but there is n nothing on record which could show that the partition took place in presence of Bhagwan Dass and Asha Ram. When the suit property is ancestral one then Kidar Nath was not competent to partition the suit property in presence of his father Bhagwan Dass. Even otherwise also the alleged property i.e. plot situated in Mohalla Khojawara given in partition to plaintiff is shown to have been purchased by the plaintiff. Even defendants have failed to place on record the copy of that sale deed no. 618 dated 28.07.1976 which was given in partition to plaintiff. So the plea of the partition in the year 19766 by Kidar Nath during his lifetime is a bogus plea and cannot be believed and there is nothing on record which could show that the property in the name of Hari Ram was purchased out of joint Hindu family funds and also there is nothing on record which could show that the house was raised on that property with joint Hindu family funds.

35. Also it is plea of appellant that in the sale deed no. 618 dated 28.07.1976 Hari Ram, the plaintiff is shown to be the son of Kidar Nath but as observed earlier that sale deed has not been proved by the appellant. Even there is no cogent evidence which could show that the Haveli in question had fallen into the share of defendants no. 1 and 2 and that they were having half share each in the Haveli in dispute.

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36. The appellant has claimed that before 1980 the plaintiff had been claiming himself to be the son of Kidar Nath but after 1980 being a clever person the plaintiff started claimi claiming himself to be the adopted son of Asha Ram as plaintiff was well aware of intricacies of law being clerk of most senior Advocate and he started getting his name incorporated in the documents as son of Asha Ram and not son of Kidar Nath and appellant has drawn the attention of this court towards the school transfer certificate Mark Mark-D1 but this document is a photocopy and has not been duly proved whereas in the documents of defendants especially the sale deed of Shyam Sunder (the appellant) bearing no. 4305 dated 17.01.1996 Ex. PW4/A the name of plaintiff Hari Ram Gupta has been shown to be adopted son of Asha Ram. Also in the power of attorney Ex.PW2/A issued by Shyam Sunder in favour of Hari Ram the plaintiff Hari has been shown to be the adopted son of As Asha Ram by Shyam Sunder himself. The plea of the learned counsel for the appellant that the documents are not duly proved by the plaintiff is without any force because the plaintiff has examined PW4 Shakunt, Registration Clerk, who has brought summoned record rd of sale deed no. 4305 dated 17.01.1996 and has also examined the scribe of this sale deed no. 4305 dated d 17.01.1996 PW5 Badri Prasad Sharma, who has deposed that he had scribed this document on the instruction of Bhagwan Dass the vendor and Shyam Sunder Sunder, who is appellant/purchaser and Shyam Sunder had brought Hari Ram, the adopted son of Shri Asha Ram, resident of town Mohindergarh as a witness to the sale deed. Moreover the sale deed is a registered document. So from the documents of appellant Shyam Sunder, der, it is proved that he had been treating the plaintiff as adopted son of Asha Ram.

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37. Furthermore, the plaintiff has proved one gift deed whereby one plot was given to Aggarwal Sabha in a gift and this gift deed Ex.PW4/B has been proved by PW4 Shakunt Kumar, Registration Clerk. The gift deed no. 3243 dated 05.02.1988 is a registered document and PW5 Badri Prasad is the scribe of this gift deed and the gift has been made by Kidarnath the father of defendant no.2 and by the plaintiff Hari Ram having ½ share are each in the plot so gifted to Aggarwal Sabha and in the gift deed plaintiff has been shown as adopted son of Asha Ram.

38. The reliance of the appellant/defendant on testimonies of DW2 Vinod Kumar Clerk Municipal Committee Mohindergarh and DW3 Jagdish Prasad Work Inspector Public Health Department Mohindergarh wherein the receipts have been issued by Public Health Department iin the name of Kidar Nath son of Shri Bhagwan Dass, resident of Mohalla. Khojawara is again of no help because the receipt Ex.DW2/C is dated 01.09.2004 and notice Ex.DW3/B is dated 17.08.2012 and receipt Ex.DW3/A is dated 09.08.2012 and these receipts are shown to be issued in the name of Kidar Nath whereas a as per DW1 Shyam Sunder, Kidar KidarNath his father had already expired in the year 2000. Even in the municipal record the partition of Haveli in question is not reflected. Had there been partition of property in the year 1976, then the same would have been incorporated and reflected in municipal record.

39. The plaintiff has even challenged that Asha Ram ever adopted Hari Ram as his son whereas the plaintiff has categorically stated that he was adopted on the day of Dusshera in the year 1962 and the defendant Shyam Sunder when appeared as DW1 has admitted th that in the year 1962

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he was only seven years old whereas the plaintiff has examined PW6 Sant Lal to prove this adoption. PW6 Sant Lal is the person who performed ceremonies of adoption as Pundit and he has categorically stated that the plaintiff was given in n adoption by his natural father and mother i.e. Kidar Nath and Kalawati to Asha Ram and Asha Ram has been treating Hari Ram as his son. Even marriage of Hari Ram was got performed by Asha Ram and last rites of Asha Ram were performed by the plaintiff. Wif Wife of Asha Ram had already expired and despite lengthy cross cross-examination, the defendant no.1 has failed to impeach the veracity of this witness. Though no written adoption deed was scribed but the testimony of PW6 Sant Lal coupled with the subsequent recordss showing the plaintiff as adopted son of Asha Ram speaks volumes that the plaintiff was adopted by Asha Ram and he was being treated as adopted son of Asha Ram and plaintiff has also placed on record the copy of ration card Ex.PW7/B wherein he has been re recorded as son of Asha Ram.

He has also placed on file the identity card issued by Election Commission of India on 09.11.1994 Ex.PW7/D and copy of Senior Citizen identity card issued by Haryana Government wherein also he has been shown as son of Shri Asha R Ram and all these documents clearly show that the plaintiff was adopted son of Asha Ram. Moreover, if the argument of the appellant is taken to be correct that the plaintiff has started asserting himself to be the adopted son of Asha Ram since the year 1980 still the defendant could have challenged this assertion of plaintiff when plaintiff and father of appellant gifted the suit property to Aggarwal Sabha in the year 1988 vide gift deed Ex.PW4/B or when the appellant/defendant

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Shyam Sunder issued Special Po Power of Attorney Ex. PW2/A in favour of plaintiff as adopted son of Asha Ram.

Ram."

(Emphasis added)

34. I am in complete agreement with the above findings,

and reasoning of the ld. Courts below. The ld. Counsel for the appellant

has, although, argued very persuasively, however, is unable to refute his

own overwhelming evidence against himself. The Ld. Counsel for the

appellant is unable to explain as to why he has himself admitted the suit

property to be ancestral in nature if it was not so; and why has he further

admitted the adoption of the plaintiff by Asha Ram, in the above referred

documents,, if it was not so.

35. Learned arned counsel for the appellant/defendant No.2 is

unable to dispute or controvert the above said evidence/ evidence/findings or give

any satisfactory explanation for the same.

36. In view of the above, present appeal is dismissed.

37. Pending application(s) if any also stand(s) disposed of.




27.01.2025                                              (Nidhi Gupta)
Sunena                                                      Judge

 Whether speaking/reasoned:       Yes/No
 Whether reportable:              Yes/No




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