BENCH AT JAIPUR v. Mangi Lal

Judgment

3. Mangi Lal son of Late Tara @ Tariya Smt. Mogar wife of Shri Mangi Lal Jagdish S/o Shri Mangi Lal resident of Village Rasoolpura, Tehsil Chaksu, District Jaipur (Rajasthan)

4. Sub Registrar Office, Tehsil Chaksu, Town Chaksu, Distt. Jaipur.

5. State of Rajasthan Through Tehsildar, Tehsil Chaksu, Town Chaksu, Distt. Jaipur. ----Respondents For Appellant(s)

: Mr. Rahul Sharma & Ms. Chanchal for Mr. Rajneesh Gupta For Respondent(s) : Mr. Ramesh Kumawat HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Judgment 07/03/2025

1. The instant civil second appeal is preferred by appellant- plaintiff aggrieved from judgment and decree dated 25.03.2017 in Civil Regular Appeal No.6/2014 passed by learned Additional District Judge No.2, Jaipur District, Jaipur whereby on an appeal preferred by respondents-defendant Nos.1 to 3 judgment and decree dated 25.09.2013 in Civil Suit No.40/2013 (12/2001) [2025:RJ-JP:15209] (2 of 11) [CSA-323/2017] passed by learned Civil Judge (S.D.) No.1, Jaipur District, Jaipur was set aside and civil suit was dismissed.

2. Learned counsel for appellant while placing reliance upon grounds of appeal submitted that appellant-plaintiff has filed a suit for declaration and injunction against the defendants to declare that he was adopted by defendant Nos.1 and 2 after ceremony of giving and taking in presence of relatives. He also referred the evidence on record and submitted that at the time of adoption, the age of the plaintiff was six years and defendant Nos.1 and 2 were issue-less (having no child). He further submitted that after adoption ceremony, the relation of plaintiff with his biological parents were severed and he became son of defendant Nos.1 and

2. He further submitted that the plaintiff has recorded name of defendant No.1 as father in all official records. He referred the facts of the case and submitted that 15-16 years after the ceremony of adoption, a son was born to defendant Nos.1 and 2, who is arrayed as defendant No.3, and thereafter defendants have changed their mind and acted to exclude the plaintiff from right to inherit the property which he acquired as an adopted son in family of defendant Nos.1 and 2. He further referred the proceedings and submitted that a suit is filed by plaintiff and he examined five witnesses and exhibited 10 documents to support his case. He further submitted that learned trial Court after considering the evidence on record has passed a decree in favour of appellant- plaintiff but on an appeal preferred by defendants, the Appellate Court has not only set aside the judgment and decree but also misread the evidence on record. At last, he submitted that the [2025:RJ-JP:15209] (3 of 11) [CSA-323/2017] grounds are sufficient to formulate the substantial question of law as referred by him in para No.11 of memo of appeal.

3. Aforesaid contentions were opposed by learned counsel for respondents and submitted that the plaintiff has failed to produce proper evidence on record so as to show that he was given in adoption by his biological parents. He further submitted that the trial Court has not considered that the documents submitted by plaintiff are not admissible in evidence and without deciding the admissibility of said documents, has exhibited the documents. He further submitted that the trial Court, without considering the evidence on record, has passed a decree presuming the evidence of plaintiff to be true and correct. He further referred the grounds and submitted that even the biological mother of plaintiff was not examined to prove the ceremony of adoption, as biological mother of plaintiff is alive. He further submitted that the plaintiff has failed to produce any of the documentary evidence to establish the incidance of adoption, therefore, the Appellate Court on basis of evidence on record has rightly allowed the appeal preferred by defendants and there is no perversity in dismissal of suit filed by plaintiff.

4. Heard learned counsel for the parties and perused the entire record and also considered the grounds as referred by learned counsel for appellant.

5. Brief facts giving rise to instant second appeal are that the appellant-plaintiff has filed a civil suit for declaration and injunction on the ground that defendant Nos.1 and 2 have adopted him as son when he was six years old, when defendant Nos.1 and [2025:RJ-JP:15209] (4 of 11) [CSA-323/2017] 2 were issue less. The plaintiff has further made an averment that after 15-16 years of adoption, the defendant No.2 has given a birth to a son (defendant No.3) and, thereafter, defendants have changed their mind towards plaintiff. The apprehensive plaintiff has filed a suit for declaration for declaring him as an adopted son of defendant Nos.1 and 2 and sought injunction on the suit property to restrain defendants from alienation or transfer.

6. The defendants have filed a written statement denying the adoption of plaintiff as adoptive son by defendant Nos.1 and 2. Further pleaded that the suit property is an agriculture land, which is in possession of defendants whereas plaintiff is residing in Jaipur.

7. On basis of pleadings of the parties, seven issues were framed. The plaintiff has examined five witnesses and exhibited 10 documents whereas two witnesses were examined by defendants. Learned trial Court has decided issue No.1 in favour of plaintiff and on basis of findings declared plaintiff as an adopted son of defendant Nos.1 and issued an injunction against the defendants.

8. The defendants Nos.1 to 3 have filed an appeal under Section 96 of CPC and after considering submissions of both the parties, said appeal was allowed and judgment and decree dated

25.09.2013 in favour of respondent-plaintiff was set aside. Hence, the instant second appeal.

9. As per averment made in plaint, plaintiff was given in adoption by his father and mother. The plaintiff has further claimed that he was admitted in school by defendants. Plaintiff examined himself after examining four witnesses. The evidence of [2025:RJ-JP:15209] (5 of 11) [CSA-323/2017] plaintiff was recorded as PW-5 (Narayan). According to plaintiff, the adoption ceremony was held in 1965. In cross-examination, the plaintiff has admitted his date of birth as 01.08.1959. Further admitted that the age of his biological father is 70 years. The plaintiff has neither examined his biological father and nor his biological mother. The admission also indicate that prior to 1965 his biological father and adoptive father, who were brothers, were residing together but later they separated from each other. The admission also indicate that a document is also executed at the time of adoption ceremony but this document is not produced by the plaintiff in his evidence. The cross-examination clearly suggests that both the parents and maternal grandfather were also present. The admission also indicate that the maternal side of both the mothers were present. The admission also indicate that Kanha Ram, Wajid Khan, Gyarsi, Ram Swaroop, Sher Khan, Ram Chandra, Ram Chandra Getor Wale, Nanak Ram, Bura Ram Raigar etc. have signed the adoption deed.

10. A perusal of evidence produced by plaintiff indicate that plaintiff has produced PW-1 Moolchand as a witness to adoption ceremony but this Moolchand is not named by PW-5 in his cross- examination.

11. PW-2 Bhori Lal was examined by plaintiff to show that his father Chitter has made thumb impression on Ex.9. Similarly, PW- 3 Ali Sher was examined to show that his father has also made thumb impression on Ex.9. One more witness PW-4 Kanhaiya Lal was examined by plaintiff to show that the material required for ceremony was purchased by him. [2025:RJ-JP:15209] (6 of 11) [CSA-323/2017]

12. Here in this case, this PW-4 Kanahiya Lal is not a person who signed the adoption deed. On the contrary, DW-1 Mangi Lal appeared to contradict the facts. DW-2 Moolchand was examined by defendants in support of their defence.

13. A perusal of material on record to consider the ground whether the Appellate Court has misread the record, then records Ex.A1 to Ex.A3, the voter list of 1975, 1988 and 1990 clearly reflected that Kalyan is named as father of plaintiff. Ex.2 is a copy of application for family ration card filed by Mangi Lal but a remark indicate that this was issued on basis of ration card. The plaintiff has also filed voter list of 1995 wherein in Ex.3, the father’s name is registered as Mangilal. A copy of Bahi is exhibited as Ex.9A but it is not an adoption deed. No witnesses is examined on record to prove Ex.9. A reference of thumb impression are not sufficient to presume genuineness of the document. The defendants have exhibited ration card as Ex.A9 and Ex.A11 wherein the plaintiff is not named as family member of defendant No.1. An application is also filed by defendant No.1 to Village Panchayat and exhibited as Ex.A3 wherein a complaint is made against plaintiff for making wrong and false entry in ration card.

14. Having gone through the entire material on record including oral and documentary evidence as produced by both the parties, it is quite apparent on record the plaintiff has not examined any of the witness, who attended adoption ceremony, particularly giving and taking ceremony. The father of plaintiff is alive and his age is more than 70 years where PW-5 Narayan himself examined before the trial Court. It is also argued that even biological mother of [2025:RJ-JP:15209] (7 of 11) [CSA-323/2017] plaintiff is also alive and she was not examined. The plaintiff has withhold the best evidence available to establish the incidence of adoption. None of the witness from PW-1 to PW-4 inspire confidence of the Court particularly, when the admission of PW-5 (plaintiff) clearly indicate that the written document was also executed at the time of adoption ceremony and the person named by PW-5 had signed the adoption document. The plaintiff has failed to examined any of witnesses named by him and he failed to produce any document relating to adoption.

15. The defendant No.1 has filed a complaint about Ex.2 and ration card procured by plaintiff. The plaintiff has failed to examine the witness who issued a copy of this document. This Ex.2 was just exhibited and not proved in accordance with law. Similarly, none of the witnesses, who made their thumb impression upon Ex. 9 is produced by plaintiff. This indicate that the plaintiff has not able to substantiate from the evidence his case.

16. Considering the material available on record, the Appellate Court has not committed any error while reversing the conclusion drawn by the trial Cout, the conclusion of Appellate Cout is based on analysis of both documentary and oral evidence of the parties. Therefore, the judgment of the trial court is perverse and contrary to the record and the Appellate Court has rightly intervened, under Section 96 of CPC.

17. In order to entertain the instant second appeal, it is necessary for the appellant-plaintiff to establish that the Appellate Court has misread the evidence and also by overlooking the material on record has set aside the findings recorded by learned [2025:RJ-JP:15209] (8 of 11) [CSA-323/2017] trial Court. Learned counsel has failed to show that the Appellate Court has either misread the material on record or intervened in the appeal without any justification. Thus, the ground does not give rise to any of substantial question of law.

18. Section 100 of CPC provides for second appeal in case wherein the High Court is satisfied that the case involves a substantial question of law. Thus, the First Appellate Court is final court on facts and in second appeal normally cannot re-appreciate the evidence or facts.

19. Just to determine whether a question is substantial question of law or not, was laid down by a Constitution Bench of Hon’ble Supreme Court in case of Chunilal V. Mehta & Sons. Ltd. Vs. Century Spg. and Mgf. Co. Ltd. AIR 1962 SC 1314, as under: "The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."

20. Recently Hon’ble Supreme Court in case of Suresh Lataruji Ramteke versus Sau. Sumabai Pandurang Petkar & Ors. (Civil Appeal No. 6070/2023, arising out of SLP(C)No.20183 of 2022 decided on 21.09.2023) considered the scope of Section 100 of CPC and summarised the law as under:

13. The jurisprudence on Section 100, CPC is rich and varied. Time and again this Court in numerous judgments has laid down, distilled and further [2025:RJ-JP:15209] (9 of 11) [CSA-323/2017] clarified the requirements that must necessarily be met in order for a Second Appeal as laid down therein, to be maintainable, and thereafter be adjudicated upon. Considering the fact that numerous cases are filed before this Court which hinge on the application of this provision, we find it necessary to reiterate the principles. 13.1 The requirement, most fundamental under this section is the presence and framing of a “substantial question of law”. In other words, the existence of such a question is sine qua non for exercise of this jurisdiction. 13.2 The jurisdiction under this section has been described by this Court in Gurdev Kaur v. Kaki (2007) 1 SCC 546 (Two-Judge Bench) stating that post 1976 amendment, the scope of Section 100 CPC stands drastically curtailed and narrowed down to be restrictive in nature. The High Court’s jurisdiction of interfering under Section 100 CPC is only in a case where substantial questions of law are involved, also clearly formulated/set out in the memorandum of appeal. It has been observed that: “At the time of admission of the second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of law and then only the High Court is permitted to proceed with the case to decide those questions of law. The language used in the amended section specifically incorporates the words as “substantial question of law” which is indicative of the legislative intention. It must be clearly understood that the legislative intention was very clear that legislature never wanted second appeal to become “third trial on facts” or “one more dice in the gamble”. The effect of the amendment mainly, according to the amended section, was: (i) The High Court would be justified in admitting the second appeal only when a substantial question of law is involved; (ii) The substantial question of law to precisely state such question; (iii) A duty has been cast on the High Court to formulate substantial question of law before hearing the appeal; (iv) Another part of the section is that the appeal shall be heard only on that question.” Gurdev Kaur (supra) was referred to and relied upon in Randhir Kaur v. Prithvi Pal Singh & Ors. (2019) 17 SCC 71 13.3 In Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179 a Bench of three Judges, held as under in regard to what constitutes a substantial question of law:- a) Not previously settled by law of land or a binding precedent. b) Material bearing on the decision of case; and (c) New point raised for the first time before the High Court is not a question involved in the case unless it [2025:RJ-JP:15209] (10 of 11) [CSA-323/2017] goes to the root of the matter. Therefore, it will depend on facts of each case. Such principles stand followed in Government of Kerala v. Joseph 2023 SCC Online SC 961 and Chandrabhan v. Saraswati 2022 SCC Online SC 1273.

16.5 Interference on findings of fact permitted in exceptional cases, i.e., when finding is based on either inadmissible or, no evidence. This Court in Dinesh Kumar v. Yusuf Ali (2010) 12 SCC 740 referring to various other cases held:- a) It is not permissible for High Court to reappreciate evidence as if it was the first appellate court unless findings were perverse. b) Finding of fact can be interfered in exceptional circumstances as rarity, rather than a regularity. c) Scrutiny of evidence in second appeal is not prohibited but has to be exercised upon proper circumspection.

21. In case of Amar Singh Vs. Dalip Singh (2012) 13 SCC 405, Hon’ble Supreme Court explained the purpose of framing question of law in following manner: “a) The purpose of framing of substantial question of law is to give the parties an opportunity to come prepared on that particular question. b) When a substantial question of law is formulated by the Court then the same must be made known to parties and thereafter they have to be given an opportunity to advanced arguments thereon. c) If any additional questions were framed at the time of hearing, the Court must hear the parties on that question as well.”

22. Hon’ble Court in case of Chandrabhan Vs. Saraswati 2022 SCC Online (SC) 1273 (decided on 22.09.2022) has summarised principle relating to Section 100 of CPC in following words:- “(i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof.” [2025:RJ-JP:15209] (11 of 11) [CSA-323/2017]

23. In view of Discussion made hereinabove, no case is made out to formulate any substantial question of law, therefore, the second appeal is devoid of merits and liable to be dismissed.

24. Thus, the instant S.B. Civil Second Appeal is hereby dismissed with pending application(s), if any.

25. No order as to costs. MR/166 (ASHOK KUMAR JAIN),J