Balbir v. Tek Ram & Ors.

CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: - Mr.S.S. Duhan, Advocate for the appellant. **** RAKESH KUMAR JAIN J. This appeal has been preferred by the plaintiff against judgment and decree of both the Courts below. In order to understand the facts, it would be appropriate to draw a pedigree table of the parties in dispute, on the basis of pleadings. RSA No.2215 of 2010 (O&M) -2- Dilip As per the pleadings, Kesari and Bakhtawar were the owners in possession of land measuring 122 kanals 9 marlas situated in the revenue estate of Village Bhatgaon Dungrah Tehsil and District Sonipat. Bakhtawar was a bachelor, who died issueless in the year 1973. He had adopted plaintiff Balbir as a small child and executed a registered Will dated 10.9.1973 in his favour in respect of his all moveable and immoveable properties. In the present suit, the plaintiff has claimed total share of Bakhtawar out of land measuring 122 kanals 9 marlas i.e. 61 kanals 5 marlas and 1/7th share i.e. 8 kanals 15 marlas from the property of his father Kesari 3 kanals 8 marlas comprised in killa No.17/1/26 on the basis of a Court decree and 24 kanals of land having purchased vide sale deed No.1711-984 from one Daya Nand. The plaintiff has thus claimed 97 kanals 8 marlas. It is further alleged by him that he came to know on 20.8.1999 that his share in the property has been reduced from 97 kanals 8 marlas to 36 kanals 14 marlas as per mutation No.1141 sanctioned by the Assistant Collector Ist Grade, Sonipat on 27.10.1957. He claimed that his father Kesari had played a fraud upon his brother Bakhtawar at the time of sanctioning of mutation No.1141 as Bakhtawar has been given 36 kanals 14 marlas of land out of 61 kanals 6 marlas. In the written statement filed on behalf of defendants, it was admitted that Bakhtawar had died bachelor and issueless in the year 1973 and during his life time he had executed a Will in favour of Balbir, who was adopted by him. It was further alleged that after his adoption Balbir had no right in the estate of his biological father, namely RSA No.2215 of 2010 (O&M) -3- Kesari, therefore, question of 1/7th share in the estate of Kesari claimed by Balbir is misconceived. The other claim of the plaintiff was also denied and it was alleged that the mutation No.1141 was sanctioned in the year 1957 after which Bakhtawar lived for 16 Bakhtawar Kesari – Dhano (wife) years but he never objected to the mutation as he was given less land of high fertility and quality and Kesari was given more land of less potentiality and fertility. On the pleadings of the parties, Balbir (adopted Son) (Plaintiff) following issues were framed: - “1. Whether the plaintiff is owner in possession of the suit property as co-sharer with the extent of half share of the land of Bakhtawar, Tek Ram (S) Sadhu Ram (S) Laxmi (D) as alleged? If so, to what effect? Dhankaur (D) Dhanpati (D) OPP

2. Whether the mutation No.1141 can be declared null and void, as alleged? If so, to what effect? OPP

3. Relief. Both the Courts below have come to a firm finding of fact that plaintiff was an adopted son of Bakhtawar. He is entitled to the property of Bakhtawar as per Will (Ex.D-7) dated 10.9.1973. Since, the plaintiff has been adopted by Bakhtawar, therefore, he has no right in the property of his natural father and no fault could be found with impugned mutation No.1141 (Ex.P-4) which was sanctioned by the competent authority in the presence of the village community because after the said mutation published on

13.8.1957, Bakhtawar lived for another 16 years and had never challenged the same. It was held that even the plaintiff Balbir did RSA No.2215 of 2010 (O&M) -4- not challenge, for a long time, the mutation No.1141 as the suit has been filed only in the year 1999 whereas he came to know about the impugned mutation No.1141 (Ex.P-4) as far back as in the year

1978. The learned Court below has also observed that natural mother of the plaintiff, namely Smt. Dhano aged 95 years had specifically stated that her husband Kesari did not give any share out of his property to the plaintiff. Learned counsel for the appellant, while assailing the firm finding of fact recorded by both the Courts below has vehemently argued that the entire land measuring 122 Kanals 9 Marlas was canal fed as per fard jamabandies Ex.D-8 and Ex.D-9, therefore, it cannot be believed that his adoptive father Bakhtawar was given less land in the year 1957 by his natural father because it was of superior quality. The argument raised by learned counsel for the appellant has been categorically dealt with by the learned First Appellate Court, who has observed that even a Canal Fed land has to be evaluated in accordance with its location and quality of soil. One piece of canal fed land may be many times more valuable then the other canal fed land having disadvantageous location. Thus, I do not find any error in the judgment and decree of both the Courts below because there is no evidence on record from which it can be found that there was illegality in the arrangement, which was arrived at between the brothers in the year 1957 which was never challenged by the adoptive father in his life time, who lived for about 16 years after the impugned mutation No.1141 (Ex.P-4) was sanctioned by the competent authority in the RSA No.2215 of 2010 (O&M) -5- presence of the co-villagers. As a matter of fact, no question of law much less substantial is either raised or involved in this appeal as envisaged under Section 100 of the Code of Civil Procedure, 1908 and as such I do not find any error in the judgment and decree of both the Courts below in their appreciation of evidence available on record. Hence, the present appeal is dismissed though, without any order as to costs.

30.06.2010 Vivek (RAKESH KUMAR JAIN) JUDGE