Ram Sarup v. Smt. Bhateri

CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER. Present:- Mr. R.A. Sheoran, Advocate, for the appellant. MAHESH GROVER, J (Oral). This is a defendant's regular Second Appeal directed against the judgments and decrees dated 26.4.2008 and

24.11.2009 passed respectively by the Civil Judge (Junior Division), Bhiwani (referred to hereinafter as `the trial Court') and the Additional District Judge, Bhiwani (described as `the first appellate Court'), whereby the suit filed by plaintiff/respondent was decreed and the appeal filed by defendant /appellant was dismissed. The plaintiff-respondent filed a suit for possession and declaration with the consequential relief of permanent injunction to say that she is the owner of the suit property, which has been wrongly usurped by the defendant by getting a Civil Court decree passed in his favour on 30.1.1990 through misrepresentation and impersonation and fraud. She pleaded that Bhola was the owner R.S.A. No.485 of 2010 (O&M) -2- of the suit property and she was his only daughter. There was no other issue born to Bhola and after the death of Bhola, she had cultivated the land for a few years and since she was on good terms with the appellant, she had given the land to him for cultivation for the reason that she was residing at a different village after her marriage. But, this land had been wrongly mutated in his favour on the basis of the fraudulent decree. The appellant contested the suit and pleaded that he was the adopted son of Bhola, which adoption had taken place when he was child and all the ceremonies and rituals had been carried out in this regard. He pleaded that Bhola was issueless and wifeless and that he was taking care of Bhola during his life time and therefore, he constituted joint Hindu family with him. Accordingly a family settlement was arrived at in the year 1989 between him and Bhola by virtue of which the suit land was given to him and a Civil Court decree was passed on the basis of this family settlement on 30.1.1990. Thereafter, the mutation was sanctioned and he continued in the possession of the suit land. The relationship of the plaintiff-respondent as being a daughter of Bhola, was denied and he further denied that she had any interest in the property. No replication was filed to the written statement. The parties thereafter went to trial on the following issues:-

1. Whether the plaintiff is owner of the property in question, as alleged in the plaint? OPP.

2. Whether the plaintiff is entitled to take the possession of the mentioned land?OPP. R.S.A. No.485 of 2010 (O&M) -3-

3. Whether the judgment and decree dated 30.1.1990 and on the basis of that mutation no.1147 is against law and facts?OPP.

4. Whether the defendant is the adopted son of Bhola, therefore, he is owner in possession of the mentioned land? OPP.

5. Whether the plaintiff has no locus standi to file the present suit?OPD.

6. Whether the plaintiff is estopped by his own act and conduct from filing the present suit?OPD.

7. Whether the suit is time barred?OPD.

8. Whether the suit is bad for want of proper court fee?OPD.

9. Relief. Both the Courts concluded that the adoption as set up by the appellant, was not proved and that the plaintiff-respondent was found to be the daughter of Bhola and therefore, the decree, which was allegedly suffered by Bhola in his favour, was also disbelieved. The suit of the plaintiff-respondent was decreed. This has given rise to the instant regular second appeal, in which learned counsel for the appellant has contended that the findings recorded by the learned Trial Court are perverse and erroneous. He has further contended that the Courts have not appreciated the fact that the appellant is adopted son of Bhola and that the plaintiff-respondent was not his daughter. I have heard learned counsel for the appellant and have perused the impugned judgments and also the material on record. The appellant himself in his testimony stated that the plaintiff-respondent is the daughter of Bhola and in the plaint, the R.S.A. No.485 of 2010 (O&M) -4- appellant has been described by the plaintiff-respondent as son of Lachhman. There is evidence on record that in the ration card the name of the father of appellant is described as Lachhman and when the suit filed in 1989 on the basis of which decree was passed, there also his father's name was described as Lachhman. He has stated in his testimony that he has never described Bhola as his father, whereas the other witnesses produced by the appellant namely Diwan Chand DW-1, Lila Ram DW-7, Dhanpat DW-8 and Lichhman S/o Moji DW-9, Licchman DW-10, admitted that the Bhateri was the daughter of Bhola. It was thus established from this that the plaintiff-respondent was the daughter of Bhola and that the claim of the appellant was clearly fraudulent as he has set up his own adoption to plead that Bhola was issueless and wifeless. There is other cogent evidence in the shape of voter list (Ex.PW4/A) and date of birth certificate of Bhateri (Ex.PW5/A) and admission and withdrawal register of school ((Ex.PW6/A), indicating that Bhateri was the daughter of Bhola and Ram Sarup was the son of Lichhman and also that Ram Sarup was not the adopted son of Bhola. The family settlement was pleaded in the plaint filed by her Ex. P-1, but in his testimony, the appellant stated that Bhateri was present at the time of family settlement, but this fact was not mentioned in the plaint. The pleas of the appellant were fairly inconsistent as he has pleaded facts, which have been totally falsified by the evidence on record and therefore, all these circumstances taken cumulatively point out that a fraudulent decree R.S.A. No.485 of 2010 (O&M) -5- has been obtained by the appellant. The concurrent and consistent findings recorded by both the Courts below regarding these facts cannot be upset in a regular second appeal where no substantial question arises for the consideration of this Court. No ground to interfere. Dismissed. The stay application is also dismissed in view of the above. 4th February, 2010. Monika (MAHESH GROVER) JUDGE