27.01.2025 RSA-3972-2016 (O&M) v. CORAM: HON’BLE
Case Details
Page 1 of 22 22 (cid:1) IN THE HI E HIGH COURT OF PUNJAB AND HA D HARYANA AT CHANDIGARH Date of pronouncement: : 27.01.2025 RSA-3972-2016 (O&M) ...Appellant(s) ...Respondent(s) nder Shyam Sunder Hari Ram & O & Others Vs. CORAM: HON’BLE MS. JUSTICE NID NIDHI GUPTA Present:- ocate Mr.Munish Gupta, Advoca cate Mr. Akash Mehta, Advocate for the appellant. Mr. Jayant Yadav, Advocate Mr. P.R. Yadav, Advocate . for the respondent No.1. cate for NIDHI GUPTA, PTA, J. *** The defendant No.2 is in se urt second appeal before this Court against the co e concurrent findings/ judgments ed ents and decrees of the learned Courts below low whereby the suit of the for e plaintiff/respondent no.1, for partition of su f suit property as described in the ith the plaint; has been decreed with costs and the p the plaintiff has been held entitled f ay led for separate possession by way of partition to to half share of the suit property t rty that is the residential haveli. 2. The parties shall hereinaft eir inafter be referred to as per their status before t ore the learned trial Court i.e. the ap nd e appellant is defendant No.2 and the contesting ting respondent No.1 as plaintiff. 3. The present litigation is be he is between two real brothers. The plaintiff had fi ad filed the present suit on 1.8.2005 are 2005 for partition of his half share in the reside sidential Haveli/The suit property as erty which was surrounded as follows: East: ast: shop of Pannalal; West: Street m ad; et measuring 3 feet; North: Road; SUNENA 2025.01.27 19:24 I attest to the accuracy and integrity of this document South: Street eet measuring 3 feet. The plaintiff Page 2 of 22 22 (cid:1) ith tiff had filed the present suit with the assertion t ion that the suit property is ancestr he estral in nature. To appreciate the controversy at sy at hand, it will be helpful to refe he refer to the pedigree table of the parties, which hich is as under:- Bhuramal I Nathu Ram I I ass Bhagwan Dass I I died Matadin die ess issueless I I I ath Kidarnath I Smt. ati Kalawati alias ati Lilawati widow I I Savitri (D4) I Hari Ram (Pff.) I ohan Moha (D1) Lal (D I Shyam Sunder (D2/Appellant) I Asha Ram I I Hari adopted (plaintiff) am Ram on son I Premlata (D5) I Santosh (D6) I Saroj Bai (D7) SUNENA 2025.01.27 19:24 I attest to the accuracy and integrity of this document 4. As per the plaintiff, decea Page 3 of 22 22 (cid:1) ss, eceased-Asha Ram was issueless, and he had d adopted the plaintiff with the he he consent of the parents of the plaintiff on the n the Dussehra festival of the year 1 nd ear 1962 by performing giving and taking ceremo emony and since then the plainti as aintiff-Hari Ram is considered as adopted son o on of Asha Ram. It was further ave is averred that the suit property is joint between een the parties and has not ever int ver partitioned. Now due to joint status of the the suit property there is possib he ssibility of dispute between the parties. Hence ence, the present suit has been filed filed. 5. Upon notice, the defenda led endant No.1 appeared and filed written statem atement disputing the above said ing said pedigree table and asserting that there was was no relation between the plain he laintiff and Asha Ram nor was he ever adopted ted by Asha Ram. It was further ave
Legal Reasoning
in averred that the plaintiff works in the office of of an Advocate and was therefo he refore, cleverly manipulating the relevant docu ocuments and record in order to c ur; to create evidence in his favour; that the suit h uit had been filed by the plaintiff f ty; tiff for grabbing the suit property; that in fact the t the suit property had been partitio ear rtitioned as far back as in the year 1976 by Kid Kidarnath during his lifetime ad me and defendant No.2 had reconstructed cted the suit property in 2002 to ver to which the plaintiff had never objected. Writ Written statement was filed along nt long the same lines by defendant No.2/appellan llant. The plaintiff filed replication of tion to the written statement of defendants No s No.1 and 2 reiterating the averm nd verments made in the plaint, and deny those ma e made in the written statements of nd ts of the said defendants no.1 and 2. SUNENA 2025.01.27 19:24 I attest to the accuracy and integrity of this document 6. Defendants No. 3, 4 and Page 4 of 22 22 (cid:1) en and 6 had filed separate written statement adm admitting the claim of the plaintiff re intiff. Defendants No.5 and 7 were proceeded aga against ex parte vide order dated 0 ed 08.09.2005. 7. On the basis of the plead ing leading of the parties, following issues were fra framed by the learned trial Court urt:- “1. Whether the plaintiff is adopte opted son of Asha Ram? OPP 2. Whether the plaintiff is co-shar sharer in the suit property? OPP 3. Whether plaintiff has no cause of ause of action to get the relief of possession by way of partition? n? OPP 4. Whether the suit is not maintai intainable? OPD 5. Relief.” 8. Upon consideration of the the entire oral and documentary evidence brou brought on record by the parties, th s, the suit was decreed in favour of the plaintif intiff vide judgment and decree d ee dated 3.7.2013. Civil Appeal No.108RT of 2 of 2013 was filed by the defenda ndant No.2/appellant herein on 29.07.2013; w 3; which has been dismissed by th y the ld District Judge, Narnaul vide judgment ent and decree dated 17.02.2016 016. Hence, the present second appeal. 9.
Legal Reasoning
Learned counsel for the de e defendant No.2 lays challenge to the concur ncurrent judgments and decrees o es of the learned Courts below primarily on on the following planks of argument ent: 10. It is submitted that it had b ad been asserted by the plaintiff that the suit suit property was ancestral in nat nature, however, no evidence whatsoever w er was led by the plaintiff in suppor pport to prove the said fact. It is contended tha that in actual fact, the suit prop roperty belonged to Kidarnath. SUNENA 2025.01.27 19:24 I attest to the accuracy and integrity of this document Page 5 of 22 22 (cid:1) This is eviden ident from the house tax receip ceipts issued by the Municipal Corporation p n produced by the defendant to sh to show that Kidarnath is owner of suit prope roperty. Further, even if the defe defendant admits it to be an ancestral, it ca it cannot be taken as ancestral. The The four stages of inheritance as required to to established the ancestral nature ature of the property were not proven by the the plaintiff, in the present case. 11. It was further asserted th d that the suit property already stood partition titioned by Kidarnath in the year 19 r 1976 in pursuance to which the plaintiff had r ad received his share. This also clea clearly shows that the property was not ance ncestral in nature, therefore, shar share of the same will devolve equally to the the plaintiff and the defendants a ts and half share of Asha Ram, should not go t go to the plaintiff alone. 12. It is further contended ed by learned counsel for the defendant No. No.2 that the plaintiff was not ent entitled to half share in the suit property also also for the reason that he was ne s never adopted by Asha Ram. Admittedly the y there is no adoption deed produc duced on record by the plaintiff. Furthermore re, the mandatory rigours of Sect Sections 7 and 11 of the Hindu Maintenance a nce and Adoption Act (hereinafter re er referred to as “the Act”), have not been com complied with, inasmuch as the ado adoption has not been proven in accordance wi e with law. 13. It is contended that the req e requirements thereof have not been complied plied with by the plaintiff. There is re is nothing on record to show whether Asha sha Ram was married or not. Onu Onus was upon the plaintiff to prove that re t requirement of Sections 7(vi) a i) and 11 of the Act are met. SUNENA 2025.01.27 19:24 I attest to the accuracy and integrity of this document Page 6 of 22 22 (cid:1) However, the the same has not been done. Me Merely mentioning Hari Ram as son of Asha R ha Ram in certain documents woul ould not prove Hari Ram to be adopted son o on of Asha Ram. The stipulated req requirements of Sections 7 and 11 have to be be met. 14. It is reiterated as has be s been stated in Para 3 of the written statem atement, the suit property belong onged to Kidarnath and he had partitioned th d the same in his lifetime and plain plaintiff has no share in the suit property. It i It is accordingly prayed that the the impugned judgments and decrees be set e set aside. In support, learned coun counsel relies upon judgment of the Hon’ble Su le Supreme Court in “M. Vanaja Vs a Vs. M. Sarla Devi (Dead)” Law Finder Doc ID c ID # 1701988, to submit that no a no adoption is valid unless made with consent ent of wife and actual ceremony o ny of adoption. Learned counsel also relies up upon judgment of this Court in in “Tehal Singh & Another Vs. Shamsher Sin Singh (since deceased) through gh L.Rs” Law Finder Doc ID # 772430, wher herein it has been held that in o in order to prove the ancestral nature of suit suit property, 4 lines of inheritance a ce are to be proved. 15. Per contra, learned counse nsel for the plaintiff/respondent No.1 veheme emently opposes the prayer er made on behalf of the appellant/defe defendant No.2 and submits tha that there is sufficient cogent evidence on re on record to irrefutably prove that t hat the suit property was joint in nature. It is co is contended that in fact it has been been admitted by the defendant himself as DW DW1 that the suit property was an s ancestral. It is submitted that it has even been een admitted by the defendant No t No.2 that the plaintiff had been adopted by by Asha Ram. Besides SUNENA 2025.01.27 19:24 I attest to the accuracy and integrity of this document that, tha there are numerous Page 7 of 22 22 (cid:1) documents/su s/sufficient evidence on record to d to prove that Asha Ram had adopted the p he plaintiff. Learned counsel accor ccordingly prays for dismissal of the present ap t appeal. 16. 17. No other argument is raise aised on behalf of the parties. I have heard learned co counsel for the parties and perused the ca e case file in great detail. 18. Briefly stated, the case has has set up by the plaintiff in the plaint is that i hat in Para No.2 the Plaintiff has cl as claimed that when he was 14 years old, the then his natural parents, in the ye e year 1962, on the occasion of Dussehra, by p by performing the ritual of 'Giving ing and Taking', gave plaintiff in adoption to A to Asha Ram son of Nathu Ram; an ; and thus, since then, he is the adopted son o on of Asha Ram, which is reflected cted in Voter Card, Ration Card and other doc documents. 19. In Para No.3, Plaintiff h iff has claimed that the suit property is a is a Residential Haveli and the anc ancestral house of the parties; and thus, Plai Plaintiff, being adoptive son of A f Asha Ram, is entitled to half share, wherea ereas the defendants (being LRs o s of Kidarnath son of Bhagwan Dass, are ent entitled to remaining half share hare.In Para No.4, it has been pleaded by Pla y Plaintiff that there was another ho er house in dilapidated condition in Mohalla Ch Chowk, Mohindergarh and the sa e same was gifted to Aggarwal Sabha by the the Plaintiff, being owner of half half share, and Kidarnath being owner of anot another half share. Thus, the plaintif intiff sought partition of the suit property by cl y claiming himself to be owner of h of half share, being adopted son m. of Asha Ram. SUNENA 2025.01.27 19:24 I attest to the accuracy and integrity of this document 20. As noticed above, the he suit was resisted by the Page 8 of 22 22 (cid:1) appellant/defe defendant no.2 on various ground unds, but primarily on the two planks that th t the suit property was not ancest cestral in nature, but was in the ownership of of the father of the parties, nam namely Kedarnath; and that the plaintiff had n ad not been adopted by Asha Ram. am. Each of these arguments is dealt with in d in detail here in below. 21. The first bone of contentio ention between the parties is in regard to the the nature of the suit property. Tha That is whether it was ancestral or not. This as is assumes importance as, if the su suit property is ancestral then Kidarnath and and Asha Ram would have equal sh al shares; and therefore, plaintiff being adopted pted son of Asha Ram, would have ave the half share of Asha Ram. The contentio ntion on behalf of the defendant N nt No.2/appellant is that the suit property is no is not ancestral in nature and tha that there is no document on record toestab stablish ancestral nature of the su e suit property. It has also been contended tha that to the contrary, there are ho e house tax receipts/Ex.DW2/A, and other re r receipts/documents Ex.DW3/A, A, Ex.DW3/B, Ex.DW2/C and Ex.DW2/D, iss issued by the concerned Municip icipal Corporation and ancillary departments, nts, to indicate that Kidarnath w h was the owner of the suit property, thus thus, showing that the suit property erty was not ancestral. However, after giving m g my thoughtful consideration to th to the very persuasive argument raised on beh behalf of the appellant, I find myse myself unable to agree with the same as the the defendant No.2 himself as as DW1 has admitted in his evidence/testi testimony (available from pages 264 s 264 to 268 of the LCR) that the SUNENA 2025.01.27 19:24 I attest to the accuracy and integrity of this document suit property rty was ancestral. The appellant h nt has categorically admitted in his cross-exam examination at Page No. 264 of th f the LCR that "Mutnaza Haveli Page 9 of 22 22 (cid:1) dadalay hai" t " that means the disputed Havel aveli is ancestral one. Therefore from this state statement in itself it is clear that the t the property is ancestral. 22. Even in his cross-examinat ination at Page No. 265 and 266 the defendant dant no.2 has stated that: "It is cor s correct that old portion of the remaining Hav Haveli is in existence. The partitio rtition that had taken place in 1976, the sam same was done between three br e brothers and my father. It is correct that in at in the year 1976 Bhagwan Dass Dass and Asha Ram both were alive, Asha R a Ram and Bhagwan Dass raise raised no objection regarding partition. In th In the partition the plaintiff was give given one plot which was in the possession of of my father and grandfather ther and its registry was got executed. In th In the disputed haveli no share wa e was kept for Hari Ram. There was no writing riting regarding leaving of share by H by Hari Ram.……” Further it has also come tha that:“…except Hari Ram, Mohan L an Lal and Shyam Sunder were given ½ share hare each. Bhagwan Dass, Kedarna arnath and Asha Ram were not given any shar share in the haveli because they w ey were residing with us. I and Mohan Lal did l did not get the entry of half-half s half share of the disputed haveli which was a s allotted to us in partition in the re he record of the committee. I do not know the the property number of the disp disputed haveli. The haveli is assessed to ho o house tax and the same is in the na he name of Kedar Nath. I did not deposit house use tax of my this haveli, I do not k not know as to whether Mohan Lal had deposi posited the same or not. It is correc orrect that in my affidavit I have SUNENA 2025.01.27 19:24 I attest to the accuracy and integrity of this document got mentioned ioned that after 1980 Hari Ram am is getting prepared all his Page 10 of 22 22 (cid:1) documents by s by mentioning himself as adopted pted son of Asha Ram.” Further at Page No. 26 o. 268 it has been stated that “…elec electricity and water connection is in the name ame of Kidar Nath. I never tried to g to get the electricity and water connection in m n in my name. I do not know that aft t after 1980 till date ration Card, water list, gas gas connection, water and electricit tricity connection etc. in all these places name o me of the plaintiff has been mention ntioned as adopted son of Asha Ram.” 23. From the above evidence ence it is proved that it is the admission of of DW1 that the property is an is ancestral; that the haveli in question was as never partitioned; and there is e is no record that the partition had ever take taken place. Furthermore, the said said alleged partition of the suit property, alth although stated to be of the ye year 1976, is admittedly not reflected in th in the revenue record.The above s ve statements of the appellant are a judicial icial admission, and are also prove roven from the findings of Ld. Appellate Cou Court which shall be referred to her hereinafter. 24. Further, it is established p ed proponent of law that as per Section 58 of of the Indian Evidence Act, admit dmitted facts do not need to be proved. As pe per the said provision of Section 5 on 58 of the Indian Evidence Act no fact need ed be proved in any proceeding w ng which the parties thereto or their agents a ts agree to admit in the hearing. Th . Therefore admission regarding property bein being ancestral in nature by the pre e present appellant itself proves that nature of re of the suit property. Thus, in vie n view of the own admission of SUNENA 2025.01.27 19:24 I attest to the accuracy and integrity of this document defendant no t no.2/DW1 that suit property rty was ancestral, no further Page 11 of 22 22 (cid:1) evidence was was required to establish the ances ncestral/joint nature of the suit property. This This admission has not been deni denied by the appellant. It has further been h en held by the Hon’ble Supreme Co e Court that under section 58 of the Evidence A ce Act and Order 3, rule 5 of the Co e Code of Civil Procedure, 1908, where there w re was no reason for supposing th g that the parties are colluding, there was no no reason why admissions of the p he parties should not be treated as evidence ju e just as they are treated in other c er civil proceedings.As such, the defendant no t no.2 can also derive no ben benefit from the relied-upon documentary ary evidence in the form of ab f above-mentioned house tax receipts, et ce t cetera. Further more, the said re d receipts have admittedly been issued from m the year 2004-2012, i.e. after th er the death of Kedarnath, who admittedly die y died in the year 2000. 25. It is pertinent that the he question of entitlement of defendants to ts to shares in the suit property, or or of giving shares to brothers and nothing t ng to sisters/defendants no.4 to 7, o 7, would arise only if the suit property was was ancestral; and the defendant ant No.2 has admitted as DW1 that no share hare was given to the sisters and and property was divided only between brot brothers and Kidarnath. This furth urther establishes the ancestral character of th of the suit property. 26. The next argument on beh behalf of the defendant no.2 is that the plaint laintiff was never adopted in accord cordance with law by Asha Ram; and, as such, ch, was not eligible to solitarily re y receive the half share of Asha SUNENA 2025.01.27 19:24 I attest to the accuracy and integrity of this document Ram to the s he suit property. However, this ar argument of the appellant is Page 12 of 22 22 (cid:1) fallacious as a as again, the appellant has himself self admitted the plaintiff to be adopted son on of Asha Ram.In this regard, I r , I refer to the following list of documents w s which prove that the responden dent was adopted son of Asha Ram:- a) Ex.PW2/A (available at pages 285-286 of th of the LCR) which is the Power of Attorney/Affid Affidavit dated 10.04.2001 execu ecuted by defendant No.2 in favour of the the plaintiff wherein defendant N nt No.2 has himself shown the plaintiff to be be the adopted son of Asha Ram. . In between the appellant has mentioned tha d that "Hari Ram is the adopted son o son of Asha Ram"; b) Ex.PW4/A A Registry No. 4305 dated 17.01.19 1.1996 (available at page 287 of the LCR), whic which has been signed by defendan ndant No.2, and here also in the signatures it is it is mentioned that Hari Ram is th is the adopted son of Asha Ram. This documen ment also proves that the appellant llant was always in knowledge of the adoption a ion as this document also bears the the signatures of the appellant; c) Ex.PW4/B Gift Deed dated 03.02.1988 exec executed by Kidarnath/father of appellant and and the plaintiff, whereby land wa d was gifted to Aggarwal Sabha which also cle clearly shows Hari Ram as the adop adopted son of Asha Ram; d) Ex.PW7/B Ration Card shows that Hari Ram Ram is the adopted son of Asha Ram. 27. Thus, from the above docu documents, it is established that the appellant/ lant/defendant no.2 has himself ac lf acknowledged and referred to SUNENA 2025.01.27 19:24 I attest to the accuracy and integrity of this document the plaintiff as iff as the adopted son of Asha Ram Ram. No doubt, the adoption of the plaintiff by iff by Asha Ram in the Dussehra of 1 of 1962 was an oral adoption as Page 13 of 22 22 (cid:1) was the more ore in those times, however, thi , this will be of no help to the appellant as as the Pandit who performed t ed the ceremony of adoption appeared as P as PW6 and proved the adoption. on. As such the argument of the appellant rega regarding non-compliance with the the provisions of the Act, is also of no help. 28. The arguments of learned ned counsel for the appellant in respect of no f non-compliance with mandatory tory provisions of the Act are misplaced also also because, as per Section 7 of 7 of the Act it is only stipulated that the adop doption cannot be executed withou thout the consent of the wife of the adoptive f ive father. In the present case, admi dmittedly, wife of Asha Ram had expired. As s s such, there was no question o on of or requirement of prior permission fro n from her, and therefore, no viola iolation of the above provision. As regards Sec Section 11, there is no violation of n of the said provision as well as admittedly, at y, at the time of adoption, Asha R a Ram had no living son/issue. The appellant lant can thus, derive no benefit from from the relied-upon judgments as the same a e are distinguishable on facts and and Law, and, as demonstrated above, are no e not applicable in the facts and c d circumstances of the present case. 29. Moreover, not just the app appellant, the said adoption has been admitte itted by defendant No.3/the m mother of the plaintiff and defendant no t no.2; as also the defendants No No.4 and 6 who are the real SUNENA 2025.01.27 19:24 I attest to the accuracy and integrity of this document sisters of the the defendant No.2 who have ave admitted in their written statement tha that the adoption had taken place place in 1962. It is but trite that Page 14 of 22 22 (cid:1) once the mot mother of the appellant and the the plaintiff has admitted the adoption, little little other evidence is required. 30. These facts have been n n noticed by the learned trial Court in Para aras 15 and 16 of the judgment dat t dated 03.07.2013, which are as under:- “15. After giving thoughtful co ul consideration to the entire matter coupled with the evidenc idence produced by the parties and having regard to the conten ontention raised by the learned counsel for the parties, I again sca in scanned the case file minutely. First of all, the perusal of the ped pedigree table as mentioned by the plaintiff shows that the plain plaintiff Hari Ram is natural son of Kidar Nath and Kalawati alias alias Lila Devi whereas the other defendants are also the descenda endant of Kidar Nath. As per the plaintiff Hari Ram he was adopted opted by Asha Ram with consent of his parents in the year 1962 on 2 on Dushera. At this juncture, it is not disputed between the part parties that the deceased Asha Ram did not have any natural issu l issue. It is also apt to note here that in the present case the de e defendant no.3 Kalawati i.e. natural mother of the plaintiff h tiff has admitted the factum of adoption of plaintiff Hari Ram by by Asha Ram in the year 1962. The claim of the plaintiff is also also not disputed by his natural sister Savitri Devi the defendan ndant no.4 and Santoshbai the defendant no.6. Now the presen resent suit is contested by the defendant no.1 Mohan Lal and and the defendant -no.2 Shyam Sunder. Importantly the defenda ndant no. 1 Mohan Lal has not come into witness box in order to er to support his claim. SUNENA 2025.01.27 19:24 I attest to the accuracy and integrity of this document Page 15 of 22 22 (cid:1) 16. At this juncture, my attent ttention went to the power of attorney executed by the defend fendant no.2 Shyam Sunder Ex. PW2/A categorically shows that that the plaintiff Hari Ram has been shown as adopted son of th of the deceased Asha Ram. The said power of attorney was was executed on 10.4.2001. Thereafter my attention went to t t to the certified copy of register no. 4305 dated 17.1.1996 Ex.PW x.PW4/A which has been signed by Bhagwan Dass and Shyam Su m Sunder and the plaintiff Hari Ram. Importantly, Hari Ram the the plaintiff has been shown here as adopted son of Asha Ram Ram. Similarly, in the gift deed dated 3.2.1988 Ex. PW4/B Hari Hari Ram has been shown as adopted son of Asha Ram. It is no is notable here that the gift deed has been executed by Kidar N ar Nath natural father of the plaintiff and the defendants. The . Therefore, on the basis of the abovesaid documents it can be sa be safely presume here that the adoption of the plaintiff Hari R ari Ram by Asha Ram was in previous knowledge of Kidarn idarnath and the contesting defendant Shyam Sunder. More oreover, the above noted gift deed and sale deed is duly prov proved by PW2 Deshraj record keeper and PW3 Shri Krishan hanYadav Advocate as notory public. In his cross-examination, P ion, PW3 Shri Krishan Yadav has categorically stated that he know nows both the parties personally and he read out Ex.PW2/A to to them before attesting the same. In the same fashion, PW4 W4 Shukunt Kumar registration clerk has also proved the certifi ertified copy of gift deed dated 5.2.1988 and sale deed dated 17.1 17.1.1996 as per the record….” 31. In respect of the mother, er, the learned lower Appellate Court in Para 4 ara 41 of its judgment and decree da ee dated 17.2.2016 has observed as follows: – SUNENA 2025.01.27 19:24 I attest to the accuracy and integrity of this document Page 16 of 22 22 (cid:1) “41....When there is admission of on of Lilawati, the mother of the plaintiff & the contesting defend efendants, and when PW6 Sant Lal, who performed the ceremonie onies of adoption as Pundit and who testified that Asha Ram h m had adopted Hari Ram the eldest son of Kidar Nath as his s his son, then the appearance of name of plaintiff in some of the the documents or some judicial proceedings as son of Kidar N ar Nath does not support the contention of the defendant that that Hari Ram was not adopted by Asha Ram...”. 32. It has also been contende nded by the appellant that the above said do d documents have been manufac ufactured and procured by the plaintiff in ord order to create evidence in his fav s favour; and that this has been accomplished hed as the plaintiff was working a g as a Clerk in the office of an advocate. How However, they said argument of th f the appellant is baseless as, as demonstrated ated hereinabove, the appellant h nt himself has admitted in the above docume uments that the plaintiff was the ad e adopted son of Asha Ram. 33. Further, the following find findings and observations of the learned Lowe ower Appellate Court clinch the e e entire issues involved in the present case. ase. The relevant para 32 to 39 o 9 of the judgment and decree dated 17.2.201 .2016, are as follows: – “32. It is the plea of the appellan ellant that all the co-owners of the suit property has not been join n joined as parties in the present suit. The present suit property as ty as per the case of the plaintiff belong to Nathu Ram. So all the ll the legal heirs were necessary parties. Nathu Ram was havi having one daughter namely Narayani Bai but her legal heir heirs have not been joined as SUNENA 2025.01.27 19:24 I attest to the accuracy and integrity of this document Page 17 of 22 22 (cid:1) parties this case. But there is har s hardly any force in this plea of the learned counsel for the appe appellant because no such plea was taken by appellant Shya Shyam Sunder in his written statement. Name of Narayani Ba i Bai as legal heir of Nathu Ram has appeared for the first time me in the grounds of appeal, so on this count it cannot be said tha d that all the legal heirs of Nathu Ram has not been joined as partie arties. Moreover it is the plea of the appellant that the property erty in question belong to Kidar Nath and did not belong to Nathu athuRam, so it is not proper for the appellant to take this ple plea that Narayani Bai was necessary party as per the ground ounds of appeal. 33. The next plea of the appellant llant that all the properties have not been included in this suit is a t is again of no help because no such plea of partial partition has has been taken by the appellant in his written statement. 34. So far as the plea of the app appellant is concerned that the plaintiff has failed to produce any e any iota of evidence on record to prove that present suit prope property was initially owned by Nathu Ram son of Shri Bhurama ramal, so the plaintiff was not entitled to seek partition is agai again highly misplaced. Though the plaintiff has claimed that t at the suit property belong to Kidar Nath his father and biologic logical father of Hari the plaintiff and that during his lifetime in th in the year 1976 Kidar Nath had partitioned the plot in question tion i.e. Haveli and the plot measuring 693 square yards situ situated in Mohalla Khojawara, which was in possession of his fat is father, was given to Hari Ram, the plaintiff and Hari Ram has no as no concern with the Haveli in dispute but again there is no proo proof on record that it was Kidar Nath, who was absolute owner wner of the Haveli rather the defendant Shyam Sunder when when appeared as DW1 has SUNENA 2025.01.27 19:24 I attest to the accuracy and integrity of this document Page 18 of 22 22 (cid:1) admitted that the suit property w rty was ancestral one. So there is admission of defendant Shyam yam Sunder that this property belonged to Nathu Ram, their heir grand father. Even he has admitted that in the year 1975 bo 75 both Bhagwan Dass, who was father of defendant Shyam Sunde fa under and Asha Ram were alive but according to him both Bhagw agwan Dass and Asha Ram had no objection regarding partition tition but there is nothing on record which could show that t hat the partition took place in presence of Bhagwan Dass and and Asha Ram. When the suit property is ancestral one then Kid n Kidar Nath was not competent to partition the suit property erty in presence of his father Bhagwan Dass. Even otherwise a ise also the alleged property i.e. plot situated in Mohalla Khojaw hojawara given in partition to plaintiff is shown to have been een purchased by the plaintiff. Even defendants have failed to p to place on record the copy of that sale deed no. 618 dated 28. 28.07.1976 which was given in partition to plaintiff. So the plea plea of the partition in the year 1976 by Kidar Nath during his li his lifetime is a bogus plea and cannot be believed and there i re is nothing on record which could show that the property in y in the name of Hari Ram was purchased out of joint Hindu fam u family funds and also there is nothing on record which could ould show that the house was raised on that property with joint joint Hindu family funds. 35. Also it is plea of appellant th nt that in the sale deed no. 618 dated 28.07.1976 Hari Ram, the the plaintiff is shown to be the son of Kidar Nath but as observe erved earlier that sale deed has not been proved by the appellan ellant. Even there is no cogent evidence which could show that that the Haveli in question had fallen into the share of defendant fa dants no. 1 and 2 and that they were having half share each in the in the Haveli in dispute. SUNENA 2025.01.27 19:24 I attest to the accuracy and integrity of this document Page 19 of 22 22 (cid:1) 36. The appellant has claimed th ed that before 1980 the plaintiff had been claiming himself to be o be the son of Kidar Nath but after 1980 being a clever person t son the plaintiff started claiming himself to be the adopted son of on of Asha Ram as plaintiff was well aware of intricacies of law law being clerk of most senior Advocate and he started getting h ting his name incorporated in the documents as son of Asha Ram an m and not son of Kidar Nath and appellant has drawn the attentio ention of this court towards the school transfer certificate Mark ark-D1 but this document is a photocopy and has not been d en duly proved whereas in the documents of defendants especia pecially the sale deed of Shyam Sunder (the appellant) bearing no g no. 4305 dated 17.01.1996 Ex. PW4/A the name of plaintiff Hari Hari Ram Gupta has been shown to be adopted son of Asha Ram. m. Also in the power of attorney Ex.PW2/A issued by Shyam Sunde under in favour of Hari Ram the plaintiff Hari has been shown to n to be the adopted son of Asha Ram by Shyam Sunder himself self. The plea of the learned counsel for the appellant that th at the documents are not duly proved by the plaintiff is witho without any force because the plaintiff has examined PW4 Shak Shakunt, Registration Clerk, who has brought summoned record o rd of sale deed no. 4305 dated 17.01.1996 and has also examine mined the scribe of this sale deed no. 4305 dated 17.01.1996 PW5 PW5 Badri Prasad Sharma, who has deposed that he had scrib scribed this document on the instruction of Bhagwan Dass the the vendor and Shyam Sunder, who is appellant/purchaser and and Shyam Sunder had brought Hari Ram, the adopted son of Shri f Shri Asha Ram, resident of town Mohindergarh as a witness to th to the sale deed. Moreover the sale deed is a registered documen ment. So from the documents of appellant Shyam Sunder, it is t is proved that he had been treating the plaintiff as adopted s ted son of Asha Ram. SUNENA 2025.01.27 19:24 I attest to the accuracy and integrity of this document Page 20 of 22 22 (cid:1) 37. Furthermore, the plaintiff tiff has proved one gift deed whereby one plot was given to A to Aggarwal Sabha in a gift and this gift deed Ex.PW4/B has bee s been proved by PW4 Shakunt Kumar, Registration Clerk. The The gift deed no. 3243 dated 05.02.1988 is a registered docume cument and PW5 Badri Prasad is the scribe of this gift deed and and the gift has been made by Kidarnath the father of defendan ndant no.2 and by the plaintiff Hari Ram having ½ share each each in the plot so gifted to Aggarwal Sabha and in the gift de ift deed plaintiff has been shown as adopted son of Asha Ram. 38. The reliance of the appellant/ lant/defendant on testimonies of DW2 Vinod Kumar Clerk Municipa nicipal Committee Mohindergarh and DW3 Jagdish Prasad Wor Work Inspector Public Health Department Mohindergarh wher wherein the receipts have been issued by Public Health Departm partment in the name of Kidar Nath son of Shri Bhagwan D n Dass, resident of Mohalla. Khojawara is again of no help be lp because the receipt Ex.DW2/C is dated 01.09.2004 and notice Ex ce Ex.DW3/B is dated 17.08.2012 and receipt Ex.DW3/A is dated 09 d 09.08.2012 and these receipts are shown to be issued in the nam name of Kidar Nath whereas as per DW1 Shyam Sunder, Kidar darNath his father had already expired in the year 2000. Even i ven in the municipal record the partition of Haveli in question is n n is not reflected. Had there been partition of property in the year year 1976, then the same would have been incorporated and reflec reflected in municipal record. 39. The plaintiff has even challe challenged that Asha Ram ever adopted Hari Ram as his son son whereas the plaintiff has categorically stated that he wa e was adopted on the day of Dusshera in the year 1962 and th nd the defendant Shyam Sunder when appeared as DW1 has adm admitted that in the year 1962 SUNENA 2025.01.27 19:24 I attest to the accuracy and integrity of this document Page 21 of 22 22 (cid:1) he was only seven years old old whereas the plaintiff has examined PW6 Sant Lal to prove rove this adoption. PW6 Sant Lal is the person who performed c ed ceremonies of adoption as Pundit and he has categorically s ally stated that the plaintiff was given in adoption by his natural f ural father and mother i.e. Kidar Nath and Kalawati to Asha Ram Ram and Asha Ram has been treating Hari Ram as his son. Even . Even marriage of Hari Ram was got performed by Asha Ram and and last rites of Asha Ram were performed by the plaintiff. Wif Wife of Asha Ram had already expired and despite lengthy cross ross-examination, the defendant no.1 has failed to impeach the h the veracity of this witness. Though no written adoption d on deed was scribed but the testimony of PW6 Sant Lal cou l coupled with the subsequent records showing the plaintiff as ff as adopted son of Asha Ram speaks volumes that the plaintiff intiff was adopted by Asha Ram and he was being treated as ado s adopted son of Asha Ram and plaintiff has also placed on reco record the copy of ration card Ex.PW7/B wherein he has been re en recorded as son of Asha Ram. He has also placed on file the ide e identity card issued by Election Commission of India on 09.11.19 11.1994 Ex.PW7/D and copy of Senior Citizen identity card issue issued by Haryana Government wherein also he has been shown a wn as son of Shri Asha Ram and all these documents clearly sh y show that the plaintiff was adopted son of Asha Ram. Moreo oreover, if the argument of the appellant is taken to be correct t ect that the plaintiff has started asserting himself to be the adop adopted son of Asha Ram since the year 1980 still the defendant dant could have challenged this assertion of plaintiff when plain plaintiff and father of appellant gifted the suit property to Aggar ggarwal Sabha in the year 1988 vide gift deed Ex.PW4/B or whe when the appellant/defendant SUNENA 2025.01.27 19:24 I attest to the accuracy and integrity of this document Shyam Sunder issued Special Po Power of Attorney Ex. PW2/A in favour of plaintiff as adopted son fa son of Asha Ram.” Page 22 of 22 22 (cid:1) (Emphasis added) 34. I am in complete agreeme ement with the above findings, and reasoning ning of the ld. Courts below. The l he ld. Counsel for the appellant has, although, ugh, argued very persuasively, how however, is unable to refute his own overwhe whelming evidence against himse mself. The Ld. Counsel for the appellant is un is unable to explain as to why he h he has himself admitted the suit property to be o be ancestral in nature if it was no s not so; and why has he further admitted the a the adoption of the plaintiff by Asha Asha Ram, in the above referred documents, if , if it was not so. 35. Learned counsel for the a he appellant/defendant No.2 is unable to disp dispute or controvert the above sa e said evidence/findings or give any satisfactor ctory explanation for the same. 36. 37. 27.01.2025 Sunena
Decision
In view of the above, prese resent appeal is dismissed. Pending application(s) if an if any also stand(s) disposed of. (Nidhi Gupta) Judge Whether spea Whether repo peaking/reasoned: eportable: Yes/No Yes/No SUNENA 2025.01.27 19:24 I attest to the accuracy and integrity of this document