Rajasthan High Court - Jodhpur

Debi And Ors vs Rameshwar Lal And Ors on 30 January, 2023

Bench: Rekha Borana

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil First Appeal No. 183/2008

1. Debi S/o Balu ji since deceased represented by his legal representatives:-

1/1. Smt. Sudi widow of Debi 1/2. Sanwara S/o Debi Both by case Jat, R/o Fatehgarh Panchayat reet, Tehsil Kotdi, District Bhilwara.

1/3. Rukma D/o Debi W/o Badri by caste Jat R/o Lakhmaniyas, Tehsil Kotdi, District Bhilwara.

1/4. Shanta D/o Debi W/o Rampal by caste Jat, R/o Sopura Tehsil Kotdi, District Bhilwara 1/5. Geeta D/o Debi W/o Ramsukh by caste Jat, R/o Holira, Tehsil Kotdi, District Bhilwara.

2. Smt. Rukma D/o Debi W/o Badri by caste Jat R/o Lakhmaniyas, Tehsil Kotdi, District Bhilwara.

----Appellants Versus

1. Rameshwarlal S/o Jawahara by caste Jat, R/o Fahelgarh Panchayat Reet, Tehsil Kotdi, District Bhilwara

2. Bheru S/o Kishna by caste Jat, R/o Mansha Tehsil Kotdi, District Bhilwara.

3. State of Rajasthan through Collector, Bhilwara

4. Tehsildar, Kotdi, District Bhilwara

5. Patwari, Reet Tehsil Kotdi, District Bhilwara

6. Gram Panchayat, Reet, Through Sarpanch Reet, Tehsil Kotdi District Bhilwara

----Respondents

For Appellant(s) : Mr. Arvind Samdariya For Respondent(s) : Mr. Sandeep Saruparia

HON'BLE MS. JUSTICE REKHA BORANA

Judgment

Reportable 30th January, 2023

The present regular appeal has been preferred against the

judgment and decree dated 27.03.2008 passed by the Additional

(2 of 17) [CFA-183/2008]

District Judge (Fast Track) No.2, Bhilwara in Civil Original

No.28/2007, whereby the suit for declaration, cancellation of the

sale deed and permanent injunction has been decreed.

The brief facts of the case are that the plaintiffs Rameshwar

Lal and Bheru preferred a suit with the following submissions :

(i) That the agricultural land measuring 13.16 bighas and 14.05

bighas was originally of the ownership of Kela Jat who was the

maternal grandfather of the plaintiffs. Kela expired before the

Hindu Succession Act, 1956 came into effect and was survived by

his wife Jadav and two daughters namely Shringari and Bagati. All

the three descendants of Kela have since expired and the only

surviving descendants of Kela are the plaintiffs Rameshwar Lal and

Bheru who are the sons of Shringari and Bagati respectively.

(ii) One Balu Jat, who was the nephew of Kela, got the revenue

entries qua the land in question mutated in his favour on the basis

of an alleged adoption by Kela. Balu was never adopted by Kela

and therefore, the revenue entries and the mutation got effected

by Balu on the basis of the alleged adoption were fraudulent.

(iii) That a part of the land in question was subsequently sold

vide registered sale deed by Debi son of Balu Jat in favour of his

daughter Rukma. Debi had no right over the land in question and

therefore, could not have executed any sale deed in favour of any

person as Balu, through whom Debi claims to succeed to the

property in question, was himself not the rightful owner of the

property in question. The property, since the death of Kela,

remained in possession of his daughters Shringari and Bagati and

subsequently, in possession of the plaintiffs.

With the said submissions, it was prayed that the defendants

be restrained from interfering with the possession of the plaintiffs

(3 of 17) [CFA-183/2008]

and further that the sale deed executed in favour of Rukma

(defendant No.2) by defendant No.1 Debi be declared to be null

and void.

The written statement to the suit as preferred by the

plaintiffs was filed by defendants No.1 and 2 and it was submitted

that Balu was adopted by Kela after following the due process and

was by all means, the adopted son of Kela. It was further the

defence of the defendants that after the death of Kela, his wife

Jadav and Balu succeeded to half share of the property each and

Balu thereafter, remained in possession of said property which he

got in succession because of the adoption. A prayer was therefore

made to dismiss the suit as preferred by the plaintiffs.

The Trial Court, on the basis of the pleadings, framed as

many as ten issues.

After hearing the parties and perusing the material available

on record as well as the evidence led by the parties, the learned

Court below proceeded on to decree the suit of the plaintiffs and

declared that Balu or defendants No.1 and 2 did not have any

right over the property in question and that the plaintiffs had

succeeded to the property by succession. Consequently, the sale

deed dated 12.02.2007 executed in favour of defendant No.2 was

cancelled to the extent of the ownership of the plaintiffs. Further,

defendants No.1 and 2 were permanently restrained from

interfering with the possession of the plaintiffs as well as from

alienating the property in question.

Regarding the other reliefs pertaining to the mutation entries

as well as the correction in the revenue records, the suit was

dismissed on the ground that for the said reliefs, the suit was not

maintainable before the Civil Court.

                                             (4 of 17)                [CFA-183/2008]



      Aggrieved   against        the      judgment          and    decree    dated

27.03.2008, the present regular appeal has been preferred by the

appellants.

Learned counsel for the appellants Shri Arvind Samdariya

submitted that the learned Court below seriously erred in law in

decreeing the suit in favour of the plaintiffs as the suit itself was

not maintainable before the Civil Court. Learned counsel

submitted that the reliefs as sought in the suit were specifically

pertaining to entries in the revenue record and the ownership qua

the agricultural land. Therefore, it was only after a decree of

declaration being granted by the Revenue Court that, the civil suit

for the ancillary reliefs could have been maintainable before the

Civil Court. In support of his submissions, learned counsel relied

upon the decisions rendered in the matters of Hardev deceased

represented by his LRs Vs Goru & Ors.[1988 (1) RLR 609];

Rooda Ram Vs. Rattu Ram [1972 RLW 532]; Modu Ram Vs.

Board of Revenue and Others [(2015) 3 WLN 284] and Ram

Kripal Das Ji Charitable Trust Vs. Phool Chand & Ors.[2012

{1} DNJ (Raj.) 531].

The second ground raised by learned counsel for the

appellants is that the suit was specifically barred by law of

limitation as the adoption of the year 1952 as well as the revenue

entries of the same period of time were sought to be challenged in

the present suit which prima facie were time barred.

On the issue of adoption, learned counsel submitted that the

adoption was validly proved on record and the Court below,

ignoring the documentary as well as oral evidence on the issue,

reached to a finding contrary to such material and therefore, the

said finding deserves to be set aside. In support of his contention,

(5 of 17) [CFA-183/2008]

learned counsel relied upon decisions rendered in the matters of

Bhanwarlal & Ors. Vs. State of Rajasthan & Ors.; 2006(1)

DNJ [Raj.] 486 and Ladi Vs. Badri Narayan; 2001 DNJ [Raj.]

735.

Learned counsel further submitted that the possession of the

defendants on the land in dispute since more than fifty years was

proved on record and therefore also, the plaintiffs were not

entitled to any relief in their favour. Learned counsel also

submitted that the adoption of the year 1952 was never

challenged by the adoptive mother (Jadav) or sister (Shringari)

during their lifetime and the present suit has been filed by the

present defendants only after the death of Balu (adoptive father),

Jadav (adoptive mother) and Shringari (adoptive sister). Meaning

thereby, the adoption was admitted and accepted by the adoptive

mother as well as the father and therefore, is not required to be

proved. The present suit after the death of the executant and the

recipient, is wholly misconceived. In support of his submission,

learned counsel relied upon decisions rendered in the matters of

Nandkishore Vs Brijbehari; 1954 RLW 563 and Moti Lal Vs.

Sardar Mal; 1975 WLN 932.

Per contra learned counsel Mr. Sandeep Saruparia appearing

for the respondents submitted that the present suit specifically

pertained to the issue of adoption and cancellation of sale deed.

Both the issues/reliefs were within the purview of the Civil Court

and therefore, the suit could have been maintained before a Civil

Court only. In support of his contention, learned counsel relied

upon the decisions rendered in the matters of Hasti Cement Pvt.

Ltd. Vs. Sandeep Charan; 2018 RLW (1) Raj. 826, Dolat

Khan Vs. Kamla Devi (S.B. Civil Revision Petition

(6 of 17) [CFA-183/2008]

No.106/2022) decided on 14.12.2022 and Ganesh Ram Vs.

Lota Ram & Ors.; 2022 0 Supreme(Raj.) 665.

So far as the reliefs regarding the revenue entries are

concerned, learned counsel submitted that firstly, the same were

the ancillary/consequential reliefs and secondly, the suit

regarding the said reliefs was any how dismissed by the Court. He

submitted that the Court below rightly reached to the conclusion

that the defendants miserably failed to prove the adoption and

the said finding, based on cogent evidence, deserves to be

affirmed. Learned counsel further submitted that the only

evidence (though not admitted) available on record regarding the

fact of adoption were the revenue entries and it is the settled

proposition of law that revenue entries alone cannot be a proof of

factum of adoption. In above context, learned counsel relied upon

the decisions rendered in the matters of Badri Bai & Ors. Vs.

The Board of Revenue for Rajasthan & Ors.; 2014 23 RCR

(Civ) 225 and Jethu Singh Vs. Bhanwar Singh & Ors.; 2003

(3) DNJ (Raj.) 1143.

Responding to the ground of limitation as raised, learned

counsel submitted that the learned Court below has rightly

decided the issue in the favour of the plaintiffs as the sale deed,

cancellation of which has been prayed in the present suit, was of

the year 2007 and the suit has been preferred in the same year

which clearly is within the period of limitation. Further, limitation

always commence from the date of knowledge of the fact which

construes to give raise to a cause of action to the party. It has

been clearly proved on record that the fact of having got the

revenue entries mutated in their favour on the basis of the alleged

adoption had come to the knowledge of the plaintiffs for the first

(7 of 17) [CFA-183/2008]

time in the year 2007 only when the impugned sale deed was

executed. Therefore, the suit was specifically within limitation and

the Court below rightly decided the said issue in favour of the

plaintiffs. In support of his submissions, learned counsel relied

upon the decisions rendered in the matters of Smt. Jogeswari

Pradhan Vs. Rajia @ Rajendra Pradhan; 2015(2) CurCC 146

and Virendra Singh & Ors. Vs. Kashiram (deceased)

through LRs; AIR 2004 Raj. 196.

Heard learned counsel for the parties, perused the

documentary as well as the oral evidence available on record.

On basis of the pleadings as adduced by the parties, issue

No.6 regarding the jurisdiction was framed by learned trial Court

as under:

"vk;k izdj.k dh lquokbZ dk {ks=kf/kdkj flfoy U;k;ky; dk ugha gksdj jktLo U;k;ky; dk gS \"

The trial Court has reached to the conclusion that the suit

was specifically for a declaration that Balu was not an adopted son

of Kela and therefore, was not entitled to any right in the property

of Kela which relief, was specifically within the domain of a Civil

Court only. Qua other reliefs, learned trial Court concluded that

the reliefs regarding the correction in the revenue entries were

within the domain of the revenue Courts and therefore, decided

the said issue partly in favour of the defendants and partly in

favour of plaintiffs.

The reliefs (Ka) & (Kha) as prayed for in the present suit are

as under:

"¼d½ oknh ds i{k esa izfroknhx.k ds fo:) ?kks'k.kk dh fMØh iznku QjekbZ tkos fd ^^ckyq iq= dkyq tkV LoxhZ; dsyk iq= peuk tkV fuoklh Qrsgx<+ dk xksn iq= ugha Fkk vkSj dsyk dk xksn iq= cudj

(8 of 17) [CFA-183/2008]

dsyk dh lEifRr esa fdlh izdkj dk gd ,oa vf/kdkj ugha j[krk gSA blds i"pkr~ bu vk/kkjksa ij nsoh o :dek dk Hkh dksbZ gd o vf/kdkj ugha gksrk gSA ¼[k½ oknh ds i{k esa izfroknhx.k ds fo:) bl vk"k; dh ?kks'k.kk dh fMØh iznku QjekbZ tkos fd izfroknh nsoh iq= ckyq }kjk viuh gh iq=h Jhefr :dek iRuh cnzh tkV fuoklh y[ef.k;kl ds i{k esa fnukad 12-02-2007 ckjg Qjojh nks gtkj lkr dks xkao jhB dh d`f'k vkjkth la[;k 18] 19] 22 fdrk 3 jdck 3 ch?kk 16 fcLok o vkjkth la[;k 20 jdck 4 fcLok vk-pk- ds laca/k esa fd;k x;k foØ; foys[k voS/k] "kwU; vkSj vd`r gS rFkk fujLr Qjek;k tkos ,oa bl foØ; nLrkost dh vkM+ esa jktLo vfHkys[kksa esa dksbZ ifjorZu ugha fd;k tkosA"

The pleadings made by the defendants in their written

statement in paras No.27 & 30 are as under:

"27& ;g gS fd ckyw] dsyk dk xksniq= Fkk] dsyk o mldh ifRu us fof/kor :i ls ckyw dks xksn fy;k FkkA o ckyw ds ekrk&firk us fn;k FkkA blh dkj.k jktLo jsdkMZ esa ckyw ds uke vkjkft;kr~ ntZ gqbZA -

---------------------------------------

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30& ;g gS fd dsyk dh e`R;q yxHkx 60 lky iwoZ gks pqdh Fkh o fgUnw mRrjkf/kdkj vf/kfu;e ds vuqlkj iqf=;ka Jaxkjh o cxrh dks dksbZ vf/kdkj dsyk dh lEifRr esa ugha feyrk gS o dsyk dh lEifRr tks ckyw esa osLV gks xbZ og ckyw ds iq= dks gh mRrjkf/kdkj ls gh izfroknh la- 01 dks feyh gSA oknhx.k o mldh ekrkvksa dk dksbZ vf/kdkj ckyw ds uke ij vafdr Hkwfe;ksa ij ugha gSA tc cxrh o Jaxkjh dk gh vf/kdkj ugha gS rks oknhx.k dks dSls fey ldrk gS ;g rF; dkfcy&,&xkSj gSA"

A bare reading of the above pleadings makes it clear that

the present suit is primarily for the reliefs of declaration of the

adoption as well as the sale deed to be void. As is the settled

(9 of 17) [CFA-183/2008]

proposition of law, the said reliefs can only be granted by a Civil

Court and any revenue Court would not have jurisdiction to grant

the above reliefs. Apparently without the adoption and the sale

deed having been declared to be void, it cannot be declared that

the revenue entries in favour of the defendants made on basis of

the said documents, were illegal or void. The revenue entries were

admittedly made on the basis of the adoption in question and

therefore, without getting the adoption declared void, the plaintiffs

could not have challenged and got the relief in their favour

regarding the said revenue entries.

So far as the judgments relied upon by learned counsel for

the appellants are concerned, all of them pertain to matters

wherein the primary/main relief was regarding the revenue entries

or agricultural lands. It is clear on record that in the present

matter, primary reliefs are for declaration of the adoption as well

as the sale deed to be void and therefore, the judgments relied

upon by learned counsel for the appellants would not apply to the

present case. Thus, the present suit for reliefs as mentioned

above, could have been maintained before the Civil Court only and

the finding of the learned trial Court on issue No.6 cannot be

interfered with and is therefore, affirmed.

So far as ground of limitation is concerned, it is relevant to

note that no issue regarding limitation has been framed by the

Court below. It has been argued by counsel for the appellants that

when the same objection was very well raised by the defendants

in their written statement, issue regarding the same ought to have

been framed by the Court and non-framing of the said issue itself

is sufficient to set aside the present judgment and decree and to

remand the matter to the Court below.

(10 of 17) [CFA-183/2008]

True it is that the issue/objection regarding limitation can be

raised at any stage and therefore, this Court has proceeded on to

take into consideration the objection raised by Counsel for the

appellants.

The pleadings made by the defendants in para no.22 of the

written statement regarding the suit being time barred read as

under:

^^;g fd okni= dh dye la- 22 drbZ xyr gksdj Lohdkj ugha gSA nkok tkfgjk rkSj e;kn ckgj gS foØ;i= ls dksbZ fe;kn ugha feyrh gSA oknhx.k dks iwoZ ls gh ckyw ds uke vkjkft;kr~ gksus o nsch ds uke ij jktLo jsdkWMZ esa gksus dh dh iw.kZ tkudkjh Fkh o dCtk Hkh ckyw o nsch dk yxkrkj pyk vk jgkFkkA o Jaxkjh dh e`R;q ds ckn vius uke Jaxkjh dh vkjkft;kr~ dk bUrdky [kqyok;k Fkk] fQj oknhx.k dks tkudkjh dSls ugha Fkh] ;g rF; dkfcy&,&xkSj gS nkok fe;kn ckgj gSA ** A bare perusal of the above pleadings shows that the

defendants have pleaded that the revenue entries were made

soon after the death of Shringari and the said fact was within the

knowledge of the plaintiffs since then. Firstly, the said pleading

has not been substantiated by any documentary evidence to show

that the plaintiffs were aware of the said entries. Secondly, the

relief regarding the revenue entries has not been held to be

maintainable by the Court below and the Court has specifically

decided the issue qua the said relief against the plaintiffs.

Therefore, when the relief itself as prayed for, has not been

entertained by the Court, the said relief being barred by law of

limitation even otherwise would be of no consequence. Admittedly,

the sale deed in question had been executed in the year 2007 and

the suit was preferred in the same year for the cancellation of the

(11 of 17) [CFA-183/2008]

same. The primary relief prayed for in the present suit was the

cancellation of the sale deed and the Court below has also

adjudicated on the said relief only therefore, the suit for the reliefs

as adjudicated by the Court being within time, the objection raised

by counsel for the appellants is hereby, rejected.

Issue No.7 framed as under by Court below pertains to

service of notice under Section 80 CPC :

"vk;k /kkjk 80 flizl dk uksfVl oknhx.k }kjk ugha fn;k x;k gS ;fn gka rks bldk okn ij D;k vlj gS \"

No arguments qua the said issue have been made by learned

counsel for the appellants before this Court however, the finding

on the issue can even otherwise not be interfered with as the

notice under Section 80 CPC is required to be served on the

Government/public authority only if relief is claimed against the

said authority. Admittedly, in the present suit defendants No.4,5 &

6 were the formal parties and no specific relief qua them had been

prayed for. Therefore, the said issue has rightly been decided by

the Court below in favour of the plaintiffs.

Issue No.9 pertaining to Valuation of the suit and the Court

fee paid on the same has been framed by the Court as under:

"¼9½ vk;k okn dk ewY;kadu lgh ugha gS rFkk vnk fd;k x;k U;k;"kqYd vi;kZIr gS \"

The finding of the said issue has not been challenged in the

present appeal and therefore, this Court is not required to go into

the said issue and finding thereupon is therefore, affirmed.

Issue No.1 regarding the core issue of adoption of Balu has

been framed by the Court below as under:

"¼1½ vk;k Lo- ckyq tkV dsyk th dk xksniq= ugha Fkk \ "

(12 of 17) [CFA-183/2008]

While deciding the said issue the Court below has specifically

considered the evidence led by DW2 Narain Lal as well as DW-3

Bheru both of whom were more than 65 years of age. The Court

below has specifically reached to the finding that both these

witnesses have specifically admitted that they were totally

unaware of the date and year of adoption. Moreover, the tentative

time/year of adoption as suggested by these witnesses did not

tally with the pleadings of the defendants and therefore, the Court

below reached to the conclusion that the defendants miserably

failed to prove the fact of adoption.

DW-2 Narain Lal in his cross examination, specifically

admitted as under:

"esjs dsyk th tkfr dk HkkbZ ca/k gSA dsyk dk fu/ku gq, 50&60 lky gks x;s gSA ml le; esa eSa NksVk Fkk iwjk ;kn ugha gSaA dkyq dc ejk ;g eq>s irk ugha gS oks esjs tUe ls igys gh ej x;s FksA dkyq dh iRuh dk uke e>s /;ku ugha gS dsyk th e`R;q ds le; esjh vk;q 15&20 lky dh FkhA ckyq dks dsyk th us esjs tUe ls igys gh xksn ys fy;k FkkA blfy;s eSa ugha crk ldrk fd dc] dgka fdlds lkeus] xksn fy;k vkSj xksn dh D;k D;k fjfr jhokt vkSj j"e gqbZ] fdlus xksn fy;kA"

DW-3 Bheru in his cross examination stated as under:

"tM+ko ifr dsyk dks eSa ugha tkurk gwa u gh eSaus mudks ns[kkA

dsyk dh iRuh tM+ko dk fu/ku esjs tUe ls igys gh gks x;k FkkA dsyk th us ckyq dks dc xksn fy;k o dgk xksn fy;k bldk eq>s irk ughaA xksn nsus o ysus esa dkSu&2 Fkk bldk eq>s irk ugha gS A ckyq ds vlyh cki dk uke dkyw gS o eka dk uke eSa ugha tkurkA ckyq ds uSlfxZd ekrk firk dc ejs bldk eq>s irk ugha gSA ckyq ds ekrk firk us xksn fn;k ;g eSaus ugha ns[kk gS A"

(13 of 17) [CFA-183/2008]

A bare perusal of the statements made by the defendants

witnesses themselves is sufficient to prove that there was no

evidence on record to prove the fact of adoption.

Now coming on to the judgment in the case of Moti Lal,

relied upon by learned counsel for the appellants with a

submission that in case of an old adoption, presumption ought to

be drawn in favour of the validity of the adoption.

In Moti Lal' case (supra), it has been held as under:

"8. It has been laid down in several cases that after a lapse of long years, it is likely that the evidence of adoption may not be available and it may become difficult to find any witness who had eye-witnessed the ceremony of actual giving and taking in adoption. In such cases if the party alleging adoption adduces some evidence of the factum of adoption, it may be regarded as sufficient to shift the burden on the other side to prove that the adoption did not take place. In such cases of old adoption, a presumption in favour of the validity of the adoption is naturally drawn from the status of the adopted son in the adopting family and its recognition by the members of the family for a number of years."

The said ratio would clearly not apply to the present matter

as in the present matter, it has specifically been proved on record

that even after the alleged adoption, Balu represented himself and

was recognized as-Balu son of Kalu (natural father) only. The

documents showing Balu to be son of Kalu have been placed on

record and even taken into consideration by the Court below. The

revenue entries of the year 1962-65, jamabandi of Samvat 2046

(Exhibit-19) and the mutation entries of the last years (Exhibit-20)

showed Balu to be the son of Kalu only. Even the receipt of the

Panchayat pertaining to the year 1990 (Exhibit.-21), the receipt of

education cess (exhibit-22) and voter list of year 1980 (exhibit-

23) mentions Balu to be son of Kalu. Taking into consideration the

(14 of 17) [CFA-183/2008]

above mentioned documents, the Court below reached to a

specific finding that the fact of adoption is proved to be totally

incorrect.

In Nand Kishore's case (supra), it has been held that in

the case of an old adoption the fact should be inferred from the

circumstances of the case. Undisputably, in the present matter

although alleged to have been given in adoption to Kela, Balu

continued to be recognized as son of Kalu and therefore, the

alleged adoption cannot be held to be proved on record. Moreover,

the first entries of the year 1965 in the revenue record have

admittedly been made on the ground of Balu being nephew of

Kela. In the said entry, it has specifically been mentioned that Kela

has expired and he has not left behind any other legal

representative and therefore, name of Balu is mutated in his

place. Had he been adopted in the year 1952, the revenue entries

in the year 1955 would not have mentioned Balu to be the nephew

of Kela. Admittedly, besides one revenue entry in favour of Balu,

there is no other document available on record to prove the fact of

adoption. As argued by learned counsel for the respondents, even

if revenue/mutation entry in favour of Balu being the adopted son

of Kalu is presumed to be true, the same itself cannot be held to

be sufficient to prove the fact of adoption.

In Badri Bai's case (supra), it has been held by the Division

Bench of this Court as under:

"The opening of mutation alone cannot establish the adoption. It is more so when no adoption deed or any evidence for it could be submitted by the appellant to the satisfaction of the original Revenue Court so as to Board of Revenue."

(15 of 17) [CFA-183/2008]

Further in Jethu Singh's case (supra), it has been held as

under:

"12. Thus, in view of the above the law on the subject can be summarised that fiscal entries like mutation do not represent or create any title or interest the property, nor the complicated issue of succession, either by way of Will or adoption can be settled in mutation proceedings and the parties have to approach the appropriate forum for adjudication of title."

Conclusively, in view of the specific documentary as well as

the oral evidence available on record, it is clear that the adoption

as alleged never took place and therefore, the findings as reached

by the Court below are totally in consonance with the evidence as

led by the parties. The finding/decision on issue No.1 in favour of

the plaintiffs is therefore, affirmed.

Issues No.2 & 3 were framed by the Court below as under:

"¼2½ vk;k okni= dh pj.k la- 2d&o [k esa of.kZr vpy laifÙk ds oknhx.k vdsys mRrjkf/kdkjh gS vkSj bl laifRr esa Lo- ckyq th o mlds i"pkr muds iq= nsoh dk dksbZ gd o fgLlk ugha gS \ ¼3½ vk;k okni= dh pj.k la- 4 o 11 esa of.kZr vk/kkjksa ij izfroknh Øe 1 nsoh }kjk izfroknh Øe 2 :dek ds i{k esa fu'ikfnr foØ;i= dsyk th dh laifRr dh lhek rd fujLr gksus ;ksX; gS \ "

A perusal of the issues as framed makes it clear that the

decision of the same was totally dependent on decision of issue

No.1. So far as issue No.1 is concerned, this Court has specifically

opined that the same has rightly been decided in the favour of the

plaintiffs by the Court below. Therefore, in view of the finding on

issue No.1 that Balu was not the adopted son of Kela, Balu or his

legal representatives cannot be held entitled to have any share in

(16 of 17) [CFA-183/2008]

the properties of Kela. Consequently, the plaintiffs were rightly

held to be the sole successors to the properties of Kela as

mentioned in Para No.2 of the plaint. As a consequence, the sale

deed executed in favour of Rukma (Defendant No.2) by Debi

(Defendant No.1) could not also held to be valid and therefore the

cancellation of the same as decreed in the favour of the plaintiffs

by the Court below is totally in consonance with law.

Issue No.4 was framed as under:

"¼4½ vk;k dsyk th dh laifRr ds laca/k esa ckyq th rFkk mlds i"pkr~ nsoh o :dek vkfn ds i{k esa tks ukekUrj.k gqvk gS og fujLr gksus ;ksX; Fkk \"

The said issue pertaining to the revenue entries has been

decided against the plaintiffs by the Court below on the premise

that the same was not within its jurisdiction and rightly so. No

cross objections regarding the issue have been filed by the

plaintiffs respondents and therefore, the finding on the same

being not under challenge, does not deserve any interference.

Issue No.5 as framed reads as under:

"¼5½ vk;k oknxzLr tk;nkn ij oknhx.k dk dCtk gS rFkk izfroknh Øe 1 o 2 blesa gLr{ksi djus ij vkeknk gS vkSj laifRr dks vU;= varfjr djus ij vkeknk gS vkSj bl ckcr oknhx.k izfroknh la- 1 o 2 ds fo:) LFkkbZ fu'ks/kkKk izkIr djus ds vf/kdkjh gS \"

The trial Court has proceeded on to decide the said issue in

favour of the plaintiffs on the basis of the statements of PW-1

Rameshwar Lal, PW-2 Deva and PW-3 Devilal who specifically

stated that the land was in possession of the plaintiffs. The Court

has further taken adverse inference against the defendants as

(17 of 17) [CFA-183/2008]

despite their specific pleading/admission that Debi was paying the

regular rent (Lagaan) and is in possession of receipts thereof,

failed to place them on record. In the opinion of this Court, the

finding as reached by the trial Court is totally in consonance with

the provisions of law regarding the adverse inference to be taken

against a party for non-production of the documents admitted to