Giriraj vs Mohani Devi
2022 Latest Caselaw 7221 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

              S.B. Civil Second Appeal No.82/2017
Giriraj Adopted S/o Shri Bhanwar Lal, R/o Village Losal, Tehsil
Dantaramgarh, District Sikar Raj.
                                                                     ----Appellant
                                     Versus
Mohani Devi Wife Of Late Bhanwar Lal, R/o Village Losal, Tehsil
Dantaramgarh, District Sikar Raj.
                                                                   ----Respondent

For Appellant(s)           :     Mr. Ajay Gupta


            HON'BLE MR. JUSTICE SUDESH BANSAL
                                  Judgment
14/11/2022

1. Appellant-plaintiff has preferred this second appeal under

Section 100 CPC assailing the judgment and decree dated

18.10.2016 passed in Civil Appeal No.101/2003 by the Court of

Additional District Judge No.1, Sikar affirming the judgment and

decree dated 23.09.2003 passed in Civil Suit No.48/1994 by the

Court of Civil Judge (SD), Dantaramgarh, District Sikar whereby

and whereunder the civil suit for permanent injunction filed by

appellant-plaintiff claiming himself to be adopted son of

respondent-defendant Mohani Devi, has been dismissed on merits.

2. Heard counsel for appellant at length and perused the

impugned judgments and record.

3. Relevant facts of present case as culled out from the record

are that appellant-plaintiff instituted a civil suit for permanent

injunction on 05.07.1994 alleging inter alia that respondent-

defendant Mohani Devi is his adoptive mother and plaintiff was

adopted by late Shri Bhanwar Lal and his wife Smt. Mohani Devi

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nearabout 15-16 years ago according to hindu rites and customs.

Plaintiff claimed his right as adopted son in the suit property

belonging to late Shri Bhanwar Lal and defendant Smt. Mohani

Devi and stated that the suit property is ancestral which is in joint

possession of plaintiff and defendant. Defendant has no right to

sell and transfer the suit property and be restrained not to

dispossess the plaintiff. Thus, it is clear that plaintiff claimed his

right in the suit property alleging himself to be the adopted son of

respondent-defendant.

4. Respondent-defendant submitted her written statement on

06.09.1996 and categorically denied the adoption of plaintiff by

her and her husband late Shri Bhanwar Lal. Defendant contended

that plaintiff is not her adopted son and has no right, title or

interest in the suit properties which are her exclusive properties.

Defendant contended that the suit has been filed maliciously, in

order to grab the suit property thus, the suit be dismissed.

Defendant also prayed that plaintiff intended to enter into

possession of suit property by using force and manhandling,

therefore, plaintiff be restrained not to enter into possession of the

suit property and not to dispossess the defendant nor create any

hindrance in use and occupation of suit property by defendant.

4.1 Plaintiff submitted reply to the counter claim and stated that

the suit property is ancestral and plaintiff is being adopted son of

defendant and unless suit property is not partitioned, no injunction

as prayed for by defendant in counter claim can be granted.

5. It is worthy to note here that undisputedly, there is no

written document to prove the adoption of plaintiff and plaintiff

has claimed his right in the suit property on the basis of adoption

but has not sought any declaration for his adoption. Even when

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the defendant categorically denied the adoption of plaintiff to her

and her husband late Shri Bhanwar Lal, plaintiff has not amended

the plaint seeking relief of declaration of his adoption rather

continued with the present suit which is simplicitor for permanent

injunction. The trial court, in order to decide the suit for

permanent injunction and counter claim, framed issue No.1 as to

whether plaintiff was adopted by defendant and her husband as

per hindu rites and plaintiff is adopted son of defendant? Issue

No.2 was framed as to whether plaintiff and defendant are in joint

possession over the suit property and other issues pertains to the

right of plaintiff in the suit properties.

6. Both parties adduced their evidence. On appreciation of

evidence, trial court as well as first appellate court have

concurrently decided issue No.1 against the plaintiff and it has

been clearly held that there is no substantive evidence on record

to prove the adoption of plaintiff to late Shri Bhanwar Lal and

defendant Smt. Mohani Devi.

7. Plaintiff's witness PW-2 Pt. Vishwanath who was produced to

prove the adoption ceremony himself admits in cross-objection

that adoption ceremony was not performed by the defendant-Smt.

Mohani Devi. Plaintiff's natural mother has not appeared as

witness to prove the adoption ceremony. The statements of

plaintiff's natural father, Mahaveer Prasad (PW-5) falls sought to

prove the adoption ceremony. Thus, there is no evidence to prove

the factum of giving and taking the adoptive child.

8. Counsel for appellant has argued that in few of the

documents, his Ration-Card, Mark-Sheets, name of his father is

mentioned as Shri Bhanwar Lal who is his adoptive father. Counsel

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has tried to persuade the court that on the basis of such

document, the adoption should be assumed to held proved.

9. This Court finds that these documents have been considered

by two courts below and it has been clearly observed that these

documents, at the most show that at one point of time, plaintiff

resided with Late Shri Bhanwar Lal and Smt. Mohani Devi but such

documents are conclusive evidence to prove the adoption. This

Court does not find any perversity in such fact findings.

10. Apart from above, this Court finds that there is evidence on

record that criminal cases were lodged by parties against each

other. The document of criminal case No.68/95 its judgment dated

20.02.2021 (Ex.A2) has come on record. Plaintiff's natural father

(PW-5) himself admits to have animosity and litigation with his

brother Bhanwar Lal and Mohani Devi.

11. In order to prove the factum of adoption, it is incumbent

upon plaintiff to prove the necessary ingredients of adoption as

envisaged under the provisions of the Hindu Adoption and

Maintenance Act, 1956. Since plaintiff has not produced sufficient

evidence to prove the adoption ceremony of giving and taking and

other relevant factors, therefore, two courts below have rightly

decided issue No.1 against the plaintiff.

12. Counsel for appellant has placed reliance on the judgment of

Hon'ble Supreme Court delivered in case of L. Debi Prasad vs.

Smt. Tribeni Devi reported in [1970 (1) SCC 677].

12.1 In this judgment, a principle of law has been expounded that

even though there may not be a document of adoption, the

factum of adoption can be proved by oral evidence. It has been

observed that in cases of ancient transaction, the positive oral

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evidence may be lacking and therefore, by appreciating the

contemporary evidence, the factum of adoption can be proved.

13. Applying the ratio of law as decided by Hon'ble Supreme

Court in case of L. Debi Prasad (supra), in the present case, it is

not a case of ancient adoption. Plaintiff has produced his best

evidence by producing the PW-2, Pt. Vishwanath, who was said to

be performed the adoption ceremony, his natural father Shri

Mahaveer Prasad as PW-5. The adoptive father Shri Bhanwar Lal

has died and his adoptive mother Smt. Mohani Devi has appeared

as DW-1, who has clearly denied the adoption ceremony. Plaintiff's

natural mother is alive but not appeared in witness box.

Therefore, it is not a case where the direct evidence to prove the

adoption ceremony is not available but by such evidence adoption

is not proved. Therefore, the ratio of the Hon'ble Supreme Court in

case of L. Debi Prasad (supra) does not apply to the facts of

present case.

14. In case of M. Vanaja vs. M. Sarla Devi reported in

[(2020) 5 SCC 307], the Hon'ble Supreme Court while

discussing the relevant provisions of Sections 6, 7 & 11 of the

Hindu Adoption and Maintenance Act, 1956 has held in para

Nos.13, 14 & 15 are being reproduced herein:-

"13. Section 6 of the 1956 Act, prescribes the pre- requisites for a valid adoption, which are :-

"6. Requisites of a valid adoption.--No adoption shall be valid unless -

(i) the person adopting has the capacity, and also the right, to take in adoption;

(ii) the person giving in adoption has the capacity to do so;

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(iii) the person adopted is capable of being taken in adoption; and

(iv) the adoption is made in compliance with the other conditions mentioned in this Chapter."

14. Section 7 provides that the male Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter in adoption. The consent of his wife has been made mandatory by the proviso to Section

7. Section 9 deals with persons who are capable of giving a child in adoption. The other conditions for a valid adoption are stipulated in Section 11 of the 1956 Act. One such condition is 11 (vi) which is as under:-

"11. Other conditions for a valid adoption.

(vi) the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of his birth (or in the case of an abandoned child or child whose parentage is not known, from the place or family where it has been brought up) to the family of its adoption:

Provided that the performance of data homam shall not be essential to the validity of adoption."

15. A plain reading of the above provisions would make it clear that compliance of the conditions in Chapter I of the 1956 Act is mandatory for an adoption to be treated as valid. The two important conditions as mentioned in Sections 7 and 11 of the 1956 Act are the consent of the wife before a male Hindu adopts a child and proof of the ceremony of actual giving and taking in adoption. The Appellant admitted in her evidence that she does not have the proof of the ceremony of giving and taking of her in adoption. Admittedly, there is no pleading in the plaint regarding the adoption being in accordance with the provisions of the Act. That apart, the Respondent who is the adoptive mother has categorically stated in her evidence that the Appellant was never adopted though she was merely brought up by her and her husband. Even the grand- mother of the Appellant who appeared before the Court as PW-3 deposed that the Appellant who lost her parents in her childhood was given to the Respondent and her husband to be brought up. PW 3 also stated in her evidence that the Appellant was not adopted by the Respondent and

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her husband. Therefore, the Appellant had failed to prove that she has been adopted by the Respondent and her husband Narasimhulu Naidu."

15. In overall facts and circumstances of the present case as also

considering the judgments referred hereinabove, this Court finds

that two courts below have not committed any illegality and

jurisdictional error in dismissing the plaintiff's suit for permanent

injunction when there is no evidence to prove the adoption

ceremony/valid adoption of the plaintiff to defendant.

16. As far as issue Nos.2 and 3 are concerned which pertains to

claim of the plaintiff for his joint possession and share in the suit

property, a fact finding has been recorded by the trial court as well

as by the first appellate court that plaintiff is not in possession of

suit property and since plaintiff has miserably failed to prove his

adoption, he has no right, title and interest in the suit property

which has come in the hands of defendant after death of her

husband.

17. It has been observed that plaintiff and his natural father,

were booked in criminal case at the behest of defendant, making

an illegal attempt to dispossess the defendant and in that criminal

case, both were held guilty.

18. According to evidence on record, trial court concluded that

plaintiff sought to dispossess the defendant forcefully and when it

has been observed that plaintiff has no right being adopted son of

defendant in suit properties of defendant, therefore, the counter

claim of defendant was decreed and plaintiff has been restrained

by way of permanent injunction not to enter into forceful

possession over the suit property nor to dispossess the defendant

nor create any hindrance in use and occupation of the suit

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property by defendant. The judgment and decree of trial court has

been affirmed in first appeal vide judgment dated 18.10.2016.

Therefore, it is a case where the plaintiff neither could prove his

adoption nor his joint possession nor any right in the suit property,

therefore, his civil suit for permanent injunction has been

dismissed on merits.

19. During the course of arguments, counsel for appellant admits

that plaintiff is natural son of Mahaveer Prasad, who is younger

brother of late Bhanwar Lal. Plaintiff is claiming himself to be

adopted son of Bhanwar Lal and his wife Mohani Devi, just to

claim his right in their property.

20. It is needless to observe that if there are any ancestral and

undivided properties, plaintiff would get his right in such

properties being natural son of Shri Mahaveer Prasad but as far as

suit property is concerned, the same has not been found to be

joint property but both courts below have recorded a fact finding

that plaintiff miserably failed to prove his possession or any right

and interest in the suit property. Such fact findings have been

recorded in the civil suit for permanent injunction. In absence of

any possession and right of plaintiff, he has rightly been declined

from permanent injunction against defendant and since defendant

has been found in possession, her counter claim has rightly been

decreed. Concurrent fact findings are duly based on

appreciation/re-appreciation of evidence which are neither

perverse nor de hors to the pleadings nor can be said to be

against the settled proposition of law.

21. In Gurnam Singh v. Lehna Singh [(2019) 7 SCC 641]

the Apex Court held as under:-

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"Before parting with the present judgment, we remind the High Courts that the jurisdiction of the High Court, in an appeal under Section 100 of the CPC, is strictly confined to the case involving substantial question of law and while deciding the second appeal under Section 100 of the CPC, it is not permissible for the High Court to re-appreciate the evidence on record and interfere with the findings recorded by the Courts below and/or the First Appellate Court and if the First Appellate Court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in Second Appeal. We have noticed and even as repeatedly observed by this Court and even in the case of Narayanan Rajendran v. Lekshmy Sarojini, (2009) 5 SCC 264, despite the catena of decisions of this Court and even the mandate under Section 100 of the CPC, the High Courts under Section 100 CPC are disturbing the concurrent findings of facts and/or even the findings recorded by the First Appellate Court, either without formulating the substantial question of law or on framing erroneous substantial question of law."

22. The Hon'ble Supreme Court in case of State of Rajasthan

v. Shiv Dayal [(2019) 8 SCC 637], has held that a concurrent

finding of the fact is binding, unless it is pointed out that it was

recorded dehors the pleadings or it was based on no evidence or

based on misreading of the material on records and documents.

The Court held as under:

"When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded dehors the pleadings or it was based on no evidence or it was

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based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. (see observation made by learned Judge Vivian Bose,J. as his Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar & Ors. vs. Dashrath Narayan Chilwelkar & Ors.,[AIR 1943 Nag 117 para 43]"

23. The Hon'ble Supreme Court in case C. Doddanarayan

Reddy vs. C. Jayarama Reddy [(2020) 4 SCC 659], has

observed that where two courts have reached a finding which is

not based upon any misreading of material documents, nor is

recorded against provisions of law and neither can it be said that

any Judge acting judiciously and reasonably could not have

reached such a finding, then High Court is not required to interfere

with such fact findings while exercising its jurisdiction under

Section 100 CPC.

24. As a result, the second appeal is bereft of merits being no

involvement of any substantial question of law and accordingly,

the same is hereby dismissed. Record be sent back.

25. All pending application(s), if any, stand(s) disposed of.

(SUDESH BANSAL),J

SAURABH/96

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