Omkar Nath and ors. vs Autar Krishen and ors.

Heard learned counsel for the parties on the admission of this civil second Appeal. The record was also thoroughly examined.

It appears, that the predecessorininterest of the appellants had filed an application before the learned Tehsildar for partition of the suit land in

accordance with Section 105 of the Jammu and Kashmir Land Revenue Act. He had based his title to half of the suit property as being one of the

sons of Shiv Ram Bhan, the last holder of the land. The learned Tehsildar decided to proceed to enquire into the merits of the objections and

followed the procedure as laid down in the Civil Procedure Code for the trial of the original suits. The respondents disputed the status of the said

predecessorin interest of the appellants as the son of Shiv Ram as also his title to the property. At the conclusion of the trial, the learned Tehsildar

accepted the application and ordered the partition of the suit property between the coowners. An appeal came to be filed before the learned

District Judge, Srinagar, against the said decree. The learned District Judge set aside the decree and remanded the case for fresh trial. The said

prepositus thereafter, amended his application and based his title as being the adopted son of Shiv Ram Bhan. Fresh issues were raised in the case.

Consequently, the Tehsildar again allowed the application. The respondents again filed an appeal before the District Judge. The learned District

Judge ? has allowed the appeal. According to the appellants, some substantial questions of law are involved in the case and hence this second

appeal.

It may be stated here that with the amendment of the Code of Civil Procedure and the incorporation of Section 100A therein, the scope and

extent of second appeals has been limited only to substantial questions of law, i.e. the second appeal is now available only where substantial

question of law is involved in the case, and not otherwise. Second appeal cannot be filed against a finding of fact unless it is grossly vitiated by

application of wrong tests or is based on mere conjectures.

In the memo of appeal, the following questions have been formulated which, according to the appellants, are substantial questions of law:

i) Does a proceeding for petition filed before the enforcement of Jammu and Kashmir Agrarian Reforms Act, 1972, during the operation of J&K

Agrarian Reforms (Suspension of Proceedings) Act and after the enforcement of J&K Agrarian Reforms Act, 1976 above ?

ii) Is a Revenue Officer who decides to enquire into the merits of an objection to the title of agricultural land which is not self cultivated, barred

from trying and determining such a dispute in terms of the Agrarian Reforms Act of 1972 and 1975 and 1976 ?

iii) If a Court holds a proceeding to have abated, is it yet competent to decide the dispute on merits to the detriment of a party ?

iv) Whether a signed statement contained in a mutation register is an admission of a party signing it and is it binding on him and is he estopped from,

denying it ?

v) Whether the giving and taking ceremonies are essential to be proved in the case of an ancient adoption, even when the evidence to such

ceremonies is lost due to passage of time ?

vi) What is the effect of entries in the revenue record on the status of an adopted son if they remain unchallenged for more than 50 years?

vii) Do the proceedings for partition pending prior to the enforcement of the J&K Agrarian Reforms Act 1972 or during the pendency of the J&K

Agrarian Reforms (Suspension of Proceeding). Act, 1975 and on the implementation of J&K Agrarian Reforms Act 1976 abate in case the land

not self cultivated by the plaintiffs and the defendants ?

viii) Can a party who by his conduct has shown that he has waited to challenge the factumo of adoption till best evidence available is lost, demand

strict and perfect proof of adoption ?

ix) If an adopted son possessed share of the property of his natural father in absence of his natural father's other heirs, does disentitle himself from

the status of an adopted son ?

x) Can a Court drop vital issues from determination?

All the questions mentioned above have been dealt with by the learned District Judge quite elaborately in his judgment after discussing the

evidence on the file and the law applicable to them. In my opinion, the findings recorded by him are well merited and supported by evidence.

It is in evidence that the predecessorininterest of the appellants was the only son of his father. How could he be given in adoption is not

understandable ? It is also in evidence that Shiv Ram Bhan the alleged adoptive father of the predecessorininterest of the appellants had more than

one son, and therefore, had no need to take any body in adoption. The predecessorininterest of the appellants was not shown as the adopted son

any where. His case also was not previously based on the plea of his status as adopted son. It is only after the learned District Judge set aside the

judgment and decree of the Tehsildar in the previous application and remanded the case for retrial that be amended his application showing himself

as the adopted son. Admittedly, the suit land has not been in the actual physical possession of any of the parties. It has been in the possession of

the tenants since long. It is also established that there is no evidence on the file proving giving and taking ceremonies of adoption in question.

With the background of the case, no substantial question of law appears to be involved in this Second Appeal. The case has been decided by

the learned District Judge on pure and simple facts. He has not misdirected himself anywhere and nor has he committed any substantial error of law

to call for any interference by this Court in the Second Appeal. His findings are based on tangible evidence, and are not vitiated by application of

wrong tests. The questions formulated in the memo of appeal, in my opinion, do not arise in this appeal.

In these circumstances of the case, no ground is made out to admit this appeal to hearing, which is hereby dismissed in limine. The appeal file be

consigned to records. The record of the first appeal as also of the suit file shall be remitted back to the learned District Judge, Badgam.