(2001) 1 J & K Law
Reporter 229 at Jammu Before Hon’ble Mr. Justice O.P. Sharma, Judge Gian Chand Appellant CSA No. 9 / 1994, CSA No. 10 / 1994, decided on 24-8-2000. J&K Hindu Adoption and Maintenance Act, (II), 1960 A.D. - Deed of adoption executed in January 1983 - Deed of adoption challenged on the ground that the adoptee was already married at the time of adoption and that his adoption is void ab-initio - Natural father of the adoptee stated that at the time of adoption the adoptee was a married person - Finding recorded by the courts below that the adoptee was married and as such the legal consequences that he could not be adopted found to be suffering from no lagal infirmity. J&K Specific Relief Act, XXXVII Svt. 1977, S. 42 - First appellate court coming to the conclusion that on the date of institution of the suit, the plaintiff was not in possession of the suit property and therefore suit for declaration simpliciter with consequential relief of injunction was not maintainable - Evidence on the record and admission by the party suggesting that the adopted son was living in the house - On facts held that as the adoptee was not out of possession of the house, therefore, relief of injunction that he be not dispossessed from the house granted - So far as agricultural land was concerned, adoptee was held to be not in possession, as his adoptive father was alive - Relief regarding injunction not granted. Jammu and Kashmir Land Revenue Act, (XII) Svt. 1996 - Proprietor - Father recorded as person in possession - Adoptee (son) cannot claim that he is in possession when revenue record is indicative of the fact that it is adoptee father who is alive and is in possession. J&K Code of Civil Procedure, (X) Svt. 1977, O.42 R. 1 - Filing of copies of judgments and decree - Legal requirement - Copies of judgment and decree of the appellate court only required to be filed - Copy of judgment of the court of first instance only required to be filed - There is no requirement of filing of decree of court of first instance – Appeal held to be properly filed. Advocates who appeared in this case : Case referred : JUDGMENT AND ORDER Both these appeals are under section 100 of the Code of Civil Procedure. It is a case in which both the plainttiff as well as defendant in the suit are not satisfied with the judgement and have challenged the judgement and decree passed by the first appellate court of Addl. District Judge, Reasi. But while the defendant has challengged the judgement and decree of both the trial court as well as Ist. Appellate Court the plaintiff is aggrieved of the decree of the Ist. Appellate Court only. The facts of the case are that the plaintifff Mangi Ram adopted defendant Gain Chand as son. An adoption deed dated 22.01.1983 has also been executed. Soon after he filed suit for cancellation of the adoption deed on the ground that since defendant was already married at the time of adoption so his adoption was void-ab-initio. As a consequential relief he prayed that defendant be restrained from dispossessing the plaintiff from the house and the land owned by him. 2. The suit was resisted by the defendant on the plea that there was a custom in the Harijan Community permitting adoption of a married person. It was further pleaded that the defendent was adopted when he was a child and not after his marriage. On these pleaddings following issues were framed by the trial court:
3. The suit was decreed by the court of Sub-Judge, Reasi vide its judgment and decree dated 30.12.1992 holding that the petitioner was married at the time of adoption and such a adoption was void-ab-initio because u/s 10 (iii) the defendant was married at the time of alleged adoption and there was neither any custom or usage applicable to the parties which permitted him to be adopted as a married person. The finding of the trial court on issue No.1 has been affirmed by the Ist. Appellate Court of Addl.District Judge, Reasi by judgment and decree dated 30.12.1992. 4. However, while the Sub-judge decreed the suit as a whole directing the defendant not to interfere with the plaintiff’s possession of the land, the Ist. Appellate Court while upholding that the adoption was invalid dismissed the suit on the ground that the plaintiff being out of possession suit for declaration and injuction was not maintainable without seeking relief of possession. So while the plaintiff challenged this part of the judgment in so far as the suit has been dismissed on the ground that declaration was not the relief, defendant challenges the judgment of both the trial court as well as Ist. Appellate Court on the ground that he was validly adopted as a child and it was the plaintiff who arranged his marriage after adoption. 5. So far as defendant’s appeal is concerned, the concurrent finding of the fact can be interfered only if it is based on no evidence or appreciation of the evidence is perverse by the courts of facts. It is admitted fact that the natural father of the defedant is Bijan who has appeard as his witness. It is in his statement that at the time he gave the defendant in adoption he was a married person and was also a father of his eldest daughter. Despite this he was not cross-examined by the defendant. This apart, the parties have examined number of witnesses to prove as to wherher defandant was adopted before or after his marriage and this evidence has been appreciated by the two courts of facts both have come to the conclusion that at the time of his adoption he was a married person. It is thus not a case of no evidence. Even the natural father of the defendant has admitted that he was already married at the time of adoption. the question of perversity in the evidence also is an argument in despair and rejected accordingly. So concurrent finding of fact that the defendant was not capable of being adopted does not suffer from any legal infirmity. Appeal filed by the defendant, therefore, is liable to be dismissed and is dismissed accordingly. 6. This takes us to the plaintiff’s appeal agains tthe dismissal of this suit on the ground that relief of possession though available was not claimed by him. Learned Addl. District Judge was of the opinion that since on the day of the institutions of suit, the plaintiff was not in possession of the suit property. Therefore, suit for declaration simplicitor with the consequential relief of injuction was not maintainable in view of the provisio to section 42 of the Specific Relief Act. In support of this , Learned Appellate Court placed relieance on the decision of the Apex Court in Ram Saran v. Smt. Ganga Devi AIR 1972 SC 2685. However, beofe applying the law the question is whether defedant was in possession of any part of the property in his independent capacity or was cultivating any land as adopted son. So far as house is concerned,it is stated by the defendant in his statement recorded by the trial court on 14.09.1990 that the both of them are residing there. This fact, is however, denied by the plaintiff. Assuming that the statement made by the defendant is correct, the relief claimed by the plaintiff is only that defendant be restrained from dispossessing him from the house. Since the plaintiff is not out of possession, relief of injuction as prayed with regard to the house could be granted on the basis of admission made by the defendant. 7. The next question is whether defendant-appellantis in possession of any part of the agricultural land owned by the plaintiff-respondent herein. As per entry reproduced in mutation No.355, plaintiff is recorded in possession through the defendant as his adopted son. This means the defendant was cultivating the land in his capacity as adopted son the the plaintiff and not inhis independent capacity. The Tehsildar while attesting mutation No.355 on 19.08.1989 has concluded that as adopted son, defendant has no right to be recorded in possession as long as adoptive father is alive and he therefore, by order dated 19.01.1989 directed the correction of the entry holding that the land details of which are given in mutation No. 355 of village Kanha Tehsil Reasi in fact is in occupation of the plaintiff and shall be so recorded. Since adoption is the basis of this entry, because as per record, the plaintiff was shown to be cultivating the land through his adopted son, once adoption goes the entry also goes. This is bacause the defendant had no independent status for cultivating the land and once his status as adopted son goes, the entry also goes. Moreover, just as son is not recorded in possession as long as father who is proprietor as defined in the Land revenue Act is alive for the same reason the adopted son cannot be shown in occupation of the land as long as adopted father is alive. This was, therefore, wrong entry and had been rightly corrected by the Tehsildar. The learned Appellate Court fell in error in holding that it was suit for possession. 8. There was a technical objection to the maintainability of the appeal filed by the defendant. According to Mr. Manhas, since the appeal was not accompanied by the decree of the trial court, therefore, it had to be dismissed on this ground only. Order 42 of the Code of Civil Procedure prescribes procedure for filing appeals from appellate decrees. Rule 1 of O. 42 reads as under :
9. The contention of Mr. Manhas is that since O. 41 applies to these appeals also, therefore, fling of the copy of judgment and decree of the trial court is mandatory. This however,is not the correct position as is evident from the palinreading of the Rule. So while it is necessary to file copies of the decree and judgment of the appellate court, only copy of the judgment of the court of first instance has to be filed. So there is no requirement of filing copy of the decree of the court of first instance. so the appeal filed by the plaintiff does not suffer from any infirmity. In view of the above discussion appeal filed by the plaintiff is allowed, judgment and decree of Ist. Appellate Court is set-aside. Consequently, the judgment and decree of the trial court is restored without any orders as to costs. |
