Dismissed

Chiranji and Others v. Nanak Chand and Others

Punjab & Haryana HC10 Sept 2008RSA/2584/2005

Case brief

AI extract

What is this about?

The High Court dismissed an appeal challenging a decree allowing a suit for recovery of possession. The court upheld findings that the plaintiff was a validly adopted son of the deceased owner and was in possession of the disputed ancestral property.

What the court decided

AI extract

Chiranji and Others Vs Nanak Chand and… — Succession and Inheritance | Punjab & Haryana HC (2008)

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RSA No.2584 of 2005(O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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RSA No.2584 of 2005(O&M) Date of decision: 10.9.2008

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Chiranji and others

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......Appellants

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Versus

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Nanak Chand and others

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......Respondents

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CORAM:HON'BLE MR. JUSTICE RAKESH KUMAR GARG

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Present: Mr. Sachin Mittal, Advocate for the appellants.

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Mr. Sudhir AggarwaL, Advocate for respondent No.1.

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Rakesh Kumar Garg, J .

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The respondent filed the present suit against the appellants stating that he is the owner in possession of the property in dispute which is his ancestral property and was being used by his ancestors for the purpose of Aawa. The plaintiff is adop2ated son of Chhitar. The defendants have no right, title or interest in the property in dispute. The defendants are threatening to interfere in the peaceful possession of the plaintiff and want to dispossess him for which they have no right. Hence, the present suit.

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The defendants contested the suit by filing written statement stating therein that the plaintiff has got no locus standi to file and maintain the suit as he cannot claim himself to be the adopted son of Chhitar (deceased) as he has been claiming the property of different persons in his name. He belongs to village Alawalpur, Tehsil Nuh, where he claims himself to be the son of Sharwan and the present suit has been filed by him only to grab the property of the answering defendants which is their ancestral property. It was further stated in the written statement that they are in physical possession of the suit property and the plaintiffs have no right to restrain the defendants from using the same and therefore, the suit is liable to be dismissed.

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RSA No.2584 of 2005(O&M)

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After appreciating the evidence on record, the trial Court held that it cannot be said that Nanak Chand was validly adopted by Chhitar. It was further held by the trial Court that the plaintiff has no proof with regard to the title of the suit property in his favour and failed to prove that he or Chhitar was in possession over the suit property. The trial Court further held that the plaintiff has failed to prove the identity of the suit property and failed to prove the possession of Chhittar. ( Though he may be tresspasser or he may be in illegal possession, but the identity of the property has to be established of which he is in possession). The suit was dismissed by the trial Court.

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Feeling aggrieved against the judgment and decree of the trial Court, the plaintiff filed an appeal which was allowed by the impugned judgment and decree dated 25.4.2005 passed by the Additional District Judge, Gurgaon. The defendants have come up in the instant appeal challenging the judgment and decree of the Lower Appellate Court.

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Mr. Sachin Mittal, learned counsel for the appellants has vehemently argued that the Courts below have erred at law while decreeing the suit of the plaintiff as the plaintiff-respondent has failed to prove the site plan of the suit property and there is no evidence to prove the factum of adoption alleged by the respondent Nanak Chand and even said Chhitar never remained in possession of the suit property and thus, the findings of the Courts below are perverse and are liable to be dismissed. Learned counsel has vehemently argued that the plaintiff-respondent has no locus standi to file the present suit as he is not the adopted son of Chhitar the alleged original owner of the property in dispute. Admittedly, the plaintiff-respondent has got recorded the name of his father as Sharwan Singh in the earlier litigation. According to the learned counsel for the appellants it is also admitted by the plaintiff that his father Sharwan has no son except him. On the basis of these facts, the learned counsel for the appellants has vehemently argued that it is well settled that the only son cannot be given an adoption and therefore, the following question of law arises for the determination of this Court in the present appeal:

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“Whether the only son can be given in adoption under the

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RSA No.2584 of 2005(O&M)

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provisions of Hindu Adoption Maintenance Act, 1956?”

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On the other hand, learned counsel for the respondents has argued that the Lower Appellate Court on appreciation of evidence has recorded a finding of fact that the plaintiff-respondent was adopted son of Chhitar and there is ample evidence on record to prove the said fact. There is no such bar that the adopted son cannot inherit the property of his natural father.

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I have heard learned counsel for the parties and perused the record.

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While recording the finding in favour of the plaintiff-respondent, the Lower Appellate Court has referred to the voluminous documentary evidence to show that the plaintiff-respondent is the adopted son of Chhitar. Even Nathi DW1, a witness of the appellants has made a statement before Assistant Collector 1st Grade, Ferozepur Jhirka in a case decided on 5.3.1979. Certified copy of which is on the record that the plaintiff-respondent is son of Chhitar. The findings of the Lower Appellate Court in this regard are as under:-

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“After going through the record very carefully and considering the facts and circumstances of the case, I find substance in the submissions made by the learned counsel for the appellant-plaintiff. The fact is not in dispute that plaintiff Nanak Chand is the daughter's son of Chhittar, who was not having any son. The question now arises whether plaintiff was adopted by Chhittar or not. Plaintiff Nanak Chand PW7 has deposed that Chhittar was his maternal grand-father and he was adopted by him about 42-43 years ago for which adoption ceremonies were performed and after that he used to call Chhittar as his father and Chhittar used to call him as his son. The factum of adoption of the plaintiff by Chhittar is also supported by Lalu PW5 and Gordhan Dass PW6. Besides this, there is an

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RSA No.2584 of 2005(O&M)

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overwhelming documentary evidence on record to show that plaintiff is the adopted son of Chhittar. In pronote Ex.PW3/1 and receipt Ex.PW3/2 duly proved on record by O.P.Mangla, Advocate PW3, Municipal receipts Ex.P7 to Ex.P14 which relates to different periods between the year 1981 to 1998 and a certificate Ex.P15 issued by the Secretary, Municipal Committee, Ferozepur Jhirka, which are duly proved on record by PW4 Ram Lalit, an employee of the Municipal Committee, Ferozepur Jhirka, receipts Ex.P16 and Ex.P17 issued by Member Secretary, Haryana Khadi and Village Industries Board, Panchkula, Dakhla Forms Ex.P18 to Ex.P22, photo copies of the ration card Ex.P23 and Ex.P24, Backward Class certificate Ex.P25 and certificate Ex.P26 issued by Chief Executive Officer, Mewat Development Agency, Gurgaon, certified copies of the judgment and decree dated 9.10.1999 Ex.P27 and Ex.P28, respectively passed in civil suit No.178 of 1978 and in the voter list for the year 1999 of Ward No.13 of Ferozepur Jhirka Town, the plaintiff has been recorded to be the son of Chhittar. In addition to this, a glance over the certified copy of the statement of Nathi DW1 recorded in case no.26/NT decided on 5.3.1979 by Assistant Collector, IInd Grade, Ferozepur Jhirka also shows that plaintiff is shown to be the adopted son of Chhittar. Nathi DW1, who had appeared in the said proceedings as PW3, had clearly stated that plaintiff was adopted by Chhittar 5-7 years earlier. Here in this case also, he has stated that plaintiff has been residing in

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RSA No.2584 of 2005(O&M)

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Ferozepur Jhirka in the house of Chhittar since the time of his birth and it is he who had performed the last rites of Chhittar after his death. Even defendant No.1 Girdhari DW2 (since died during the pendency of the suit and now being represented by his LRs) has also admitted it as correct that the plaintiff is having his ration card and voter list in Ferozepur Jhirka and both in the ration card and voter list his father's name is recorded as Chhittar. Apart from this, it will be seen that it is a case of old adoption as the plaintiff, who has appeared as PW7 on 22.5.2000, has himself stated that he was adopted by Chhittar about 42-43 years ago. It has been laid down in several cases that after a lapse of several 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. Reference in this connection may be made to the following authorities wherein due weight has been given to all the inferences and presumptions which may arise from such status of the adopted person and its recognition : Nand Kishore

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RSA No.2584 of 2005(O&M)

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Vs. Brij Behari, ILR (1954) 4 Raj. 822 (AIR 1955 Raj.65, Mt.Binda Kuer Vs. Lalita Prasad, AIR 1936 PC 304, Seetharama Chanbdra Row Vs. Kanchumarthi Raju, AIR 1925 PC 201, Rajendro Nath Vs. Jogendro Nath (1870) 12 Moo Ind App 67 (PC) and Kailash Chandra Nag Vs. Bejoy Chandra Nag. AIR 1923 Cal.18). Further reference can also be made to Moti Lal Vs. Sardar Mal, AIR 1976 Rajasthan, 40. Thus the above discussion shows that plaintiff is the validly adopted son of Chhittar. On the other hand, defendants have failed to prove that adoption of the plaintiff was made in contravention of the provisions of the Hindu Adoptions and Maintenance Act, 1956. As such conclusion arrived at by the learned lower Court that plaintiff is not proved to be a validly adopted son of Chhittar is held to be manifestly erroneous.”

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It may be noticed here that the Lower Appellate Court has given a categoric finding to the effect that the appellants are not able to dispute the correctness of the site plan of the plaintiff. It was also found that the plaintiffrespondent is in possession of the suit property.

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For the reasons recorded above, I find no illegality and infirmity in the judgment and decree of the Lower Appellate Court. No substantial question of law arises in the present appeal.

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Dismissed.

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September 10, 2008 (RAKESH KUMAR GARG) ps JUDGE

Chiranji and Others v. Nanak Chand and Others

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Chiranji and Others v. Nanak Chand and Others

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