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Judgment
Kuldip Singh, Judge
This appeal has been directed against the judgment, decree dated 12.06.2000 passed by learned Additional District Judge, Shimla, Camp at Rohru, in Civil Appeal No. 65-S/13 of 1999, affirming judgment, decree, dated 02.08.1999 passed by learned Sub Judge Ist Class, Court No. 1, Rohru, in Civil Suit No. 202/1 of 1994. The facts, in brief, are that the appellant had filed a suit for declaration against respondent No. 1 and others that Keshav Ram died issueless, mutation No. 10 dated 18.04.1981 and mutation No. 58 dated 20.07.1989 are wrong, illegal. The appellant and proforma respondents are entitled to inherit the estate of Keshav Ram. The further pleaded case of the appellant is that one Lal Chand had three sons namely Keshav Ram, Bhajan Dass, Bansi Lal plaintiff and two daughters namely Shiv Dei and Juin Devi. Keshav Ram died issueless. The respondent No. 1 was never adopted by Keshav Ram. The adoption did not take place either according to custom or in accordance with law. The mutations No. 10 and 58 were attested behind the back of the appellant. The mutations No. 10 and 58 are liable to be declared null and void.
The respondent No. 1 contested the suit by filing written statement. The objections of maintainability, limitation and estoppel were taken as preliminary objections. On merits, it has been pleaded that Keshav Ram and his wife Tipsi legally adopted respondent No. 1. On the death of Keshav Ram, mutation No. 10 was rightly attested in favour of respondent No. 1 and Tipsi and on the death of Tipsi mutation No. 58 was rightly attested in favour of respondent No. 1. The prayer was made for dismissal of the suit. The replication was filed by appellant wherein he reiterated the stand taken in the plaint.
On the pleadings of the parties, the following issues were framed:-
Whether defendant No. 1 is not legally adopted son of deceased Keshav Ram, as alleged? OPP.
Whether defendant No. 1 has wrongly inherited the estate of Keshav Ram as alleged? OPP.
Whether the plaintiff and proforma defendants have succeeded the estate of Keshav Ram in equal share as alleged? OPP.
Whether the suit is not maintainable as alleged? OPD.
Whether the suit is time barred as alleged? OPD.
Whether the plaintiff is estopped to file the present suit as alleged? OPD.
Relief.
The issues No. 1 to 3 and 6 were answered in negative, issues No. 4 and 5 in affirmative and the suit was dismissed on 02.08.1999. In appeal on 12.06.2000 the learned lower appellate Court affirmed judgment, decree dated 02.08.1999 passed by learned trial Court, hence second appeal which has been admitted on following substantial question of law:-
Whether an adoption which has not been proved to have been made either according to law or as per the custom, can be held to be a valid adoption?
I have heard the learned counsel for the appellant and learned counsel for the respondent No. 1 and have also gone through the record. It has been submitted on behalf of the appellant that both the Courts below have erred in returning the finding that there was valid adoption of respondent No. 1 by Keshav Ram. The adoption has not been proved. The alleged adoption was neither in accordance with law nor as per the custom. The submission has been made for acceptance of the appeal and setting aside the impugned judgment, decree. The learned counsel for the respondent No. 1 has submitted that no substantial question of law is involved in the appeal. The two Courts below on facts have recorded a finding of fact that respondent No. 1 was legally and validly adopted by Keshav Ram. The adoption of respondent No. 1 by Keshav Ram has been reiterated and proved even by Tipsi widow of Keshav Ram, who got entered mutation No. 10. The submission has been made for dismissal of the appeal.
PW-1 Bansi Lal has stated that Keshav Ram was his brother. He was issueless. In his examination-in-chief he has not stated that Prem Chand was not adopted by Kehsav Ram. He has stated that Tipsi was the wife of Keshav Ram. He has shown his ignorance that Prem Chand was enrolled in the school by Keshav Ram. Keshav Ram died in the year 1981. On the death of Keshav Ram, his estate was mutated in favour of Prem Chand and Tipsi in the year 1981 which he came to know in the year 1993. Tipsi died in the year 1987-88. In the year 1993, he came to know that the estate of Tipsi was mutated in favour of Prem Chand. He filed appeals against both the mutations before the Financial Commissioner in the year 1993.
PW-2 Sanam Ram has stated that he does not know that Prem Chand was adopted by Keshav Ram. Prem Chand was living with Keshav Ram for the last 10-12 years. He, however, could not say that Prem Chand was living with Keshav Ram as adopted son. Prem Chand was got married by Keshav Ram. Prem Chand is cultivating the land of Keshav Ram. PW-3 Jiya Lal has stated that he does not know that when Prem Chand was 2-3 years old and at that time Keshav Ram had adopted him. Prem Chand is cultivating the land of Keshav Ram for the last 10-12 years. PW-4 Khushi Ram has stated that Prem Chand was got married by Keshav Ram.
DW-1 Prem Chand has supported his case. DW-2 Dharam Singh has stated that Keshav Ram brought-up, educated and married Prem Chand. All the villagers treat Prem Chand as adopted son of Keshav Ram. DW-3 Rattan Dass has stated that Keshav Ram had adopted Prem Chand from Bhajan Dass. Keshav Ram and Bhajan Dass were brothers. Prem Chand was brought-up, educated and got married by Keshav Ram and his wife Tipsi.
Ex. DA is the certificate issued by Headmaster, Government School, Bashla, showing Prem Chand son of Keshav Ram. Ex. DE is the certificate issued by Secretary, Gram Panchayat certifying that Prem Chand is the adopted son of Keshav Ram as per family register entry dated 30.10.1960. Ex. PW1/B is the mutation No. 10 attested on 18.04.1981 in favour of Tipsi and Prem Chand after the death of Keshav Ram on 25.03.1981. In fact, the mutation No. 10 was got entered by Tipsi widow of Keshav Ram stating therein that after the death of Keshav Ram, she ( Tipsi) and Prem Chand adopted son of Keshav Ram are the heirs of Keshav Ram and mutation be attested in their favour. At the time of attestation of mutation No. 10 Tipsi appeared before the Revenue Officer and she was identified by Dharam Singh, Ward Member. At the time of attestation of mutation No. 10, Tipsi again stated that she and Prem Chand adopted son of Keshav Ram are the heirs of Keshav Ram. Ex. DC is the mutation No. 58 attested on 20th July, 1989, on the death of Tipsi in favour of Prem Chand. At the time of attestation of mutation No. 58, Prem Chand was identified by Jai Karan Dass, Numberdar and Prem Chand has been shown as adopted son.
It has come on record that Keshav Ram brought-up, educated and married Prem Chand. There is no direct evidence of giving and taking Prem Chand in adoption, but the other evidence indicates that actually giving and taking of Prem Chand in adoption had taken place. There is evidence on record that Prem Chand was brought up, educated and married by Keshav Ram. Keshav Ram enrolled Prem Chand in the school. In the school record, Keshav Ram is recorded as father of Prem Chand. Tipsi widow of Keshav Ram on the death of keshav Ram herself got entered mutation No. 10 and stated that Prem Chand is the adopted son of Keshav Ram. The evidence has come on record that Prem Chand is in actual possession of the property left by Keshav Ram and Tipsi and he had been living with Keshav Ram when Keshav Ram was alive.
The two Courts below have recorded a finding of fact that respondent No. 1 was legally and validly adopted by Keshav Ram and his wife Tipsi. In second appeal, the evidence cannot be reappreciated. It is not the case where inadmissible evidence has been relied and important evidence having bearing on the result of the case has been left out by the Courts below. There is no scope for interference. The substantial question of law, noticed above, is decided against the appellant. There is no merit in the appeal. No other point was urged. In view of above discussion, appeal fails and is accordingly dismissed with no order as to costs.