Mohansingh vs Manoharsingh on 25 October, 2017

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S.A. No.403/2017

25.10.2017

Shri Pankaj Kumar Jain, learned counsel for

the appellant.

Heard on the question of admission.

[1] The Appellant (here-in-after referred as

“plaintiff”) have filed the Second Appeal being aggrieved

by the judgment dated 15.05.2017 passed in Civil Appeal

No.38/2014 by Additional District Judge, Susner, District

Shajapur has dismissed the First Appeal and affirmed the

judgment and decree dated 14.07.2014 passed in Civil

Suit No.58-A/13 by the Additional Civil Judge, Class-I,

Susner dismissing the suit. Facts

of the case in short for

disposal of this appeal are as under :-

[2] The plaintiff has filed the suit for declaration

of title and permanent injunction claiming 1/3 share in the

land bearing survey No.2390 area 0.26 hectare, survey

No.2410 area 0.96 hectare, survey No.2412 area 0.71

hectare, survey No.2414 area 0.04 hectare, survey
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No.2419 area 0.91 hectare, survey No.2425 area 0.16

hectare, survey No.2428 area 0.19 hectare, survey

No.2430 area 0.15 hectare, survey No.2492 area 0.24

hectare, survey No.2573 area 0.79 hectare, survey

No.2575 area 1.20 hectare, survey No.2683 area 0.45

hectare, survey No.3032 area 1.09 hectare, survey

No.3126 area 0.50 hectare and survey No.3162 area 1.94

hectare of Gram Donger (here-in-after referred as “suit

land”). According to the plaintiff 1/3 land of the

aforesaid suit land is in his possession as owner. The

plaintiff was residing since last few years with Jalam

Singh as an adopted son and till the death of Jalam Singh

he used to serve him and after his death the name of his

wife Sampatbai was mutated in the revenue record and

after the death of Sampatbai the name of plaintiff has

been mutated in the revenue record in the capacity of an

adopted son.

[3] The plaintiff has filed an application before the

Tehsildar for mutation which was registered as Case
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No.12A-6/2007-08 in which order dated 29.01.2010 was

passed in his favour in respect of 1/3 share of land. The

defendant has started taking possession of the said land

denying the rights of the petitioner, therefore, he filed the

suit for declaration of title and permanent injunction. The

defendants Narayan Singh and Dule Singh filed the

written statement denying the averment made in the plaint

and submitted that the order of Tehsildar dated

29.01.2010 has been set aside by Sub Divisional Officer.

The plaintiff has never cultivated the land and was never

in possession. They are the legal heir of Smt. Sampatbai,

therefore, suit land came into their possession. That other

defendants remained ex parte.

[4] On the basis of pleading the trial court has

framed four issues. The first issue was framed as to

whether the plaintiff is an adopted son of Jalam Singh and

Sampatbai and if yes then whether he is entitled for 1/3

share on the basis of adopted son?

[5] The plaintiff examined himself as PW-1,
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Bhimsingh as PW-2, Madansingh as PW-3. The

defendant No.9 Narayan Singh examined himself as

DW-1.

[6] The plaintiff has filed Kistbandi Khatoni of the

year 2010-11 as Ex.P/1 P/2. The order of Nayab

Tehsildar dated 29.01.2010 as Ex.P/3. The defendant has

filed the copy of order dated 15.10.2010 passed by the

Sub Divisional Officer setting aside the order dated

29.01.2010 passed by the Tehsildar is Ex.D/1. The trial

court while answering the issues No.1 2 has held that

the plaintiff has failed to prove that he was adopted by the

late Jalam Singh and Sampatbai. There was no specific

pleading and evidence to that effect on record to prove the

adoption as required under Section 5, 6 and 11 of Hindu

Adoption and Maintenance Act, 1956. Vide judgment and

decree dated 14.07.2014 the trial court has dismissed the

suit. Being aggrieved by the aforesaid dismissal of the

suit the plaintiff preferred the first appeal before the

Additional District Judge, Susner. The learned Additional
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District Judge vide judgment dated 15.05.2017 has

dismissed the suit. Hence, the present appeal before this

court. At the stage of First Appeal the plaintiff filed an

application under Order 6 Rule 11 of CPC, hence the

application under Order 23 Rule 1 of CPC for withdrawal

of the suit with liberty to file fresh on the ground that

counsel engaged by the plaintiff did not pleaded

important facts in the plaint. The learned Additional

District Judge has rejected the application filed under

Order 6 Rule 17 as well as under Order 23 Rule 1 on

merit also. The first appellate court has held that the

plaintiff has failed to prove that he was validly adopted by

Jalam Singh and his wife. Finally vide judgment dated

15.05.2017 the appeal has been dismissed. Hence, the

present Second Appeal before this court. The appellant

has suggested following substantial questions of law in

this appeal which are reproduced as below :-

¼v½ D;k vihykFkhZ dh vksj ls vkns’k 6 fu;e 17 lh-ih-lh-
lgifBr /kkjk 151 lh-ih-lh- ds varxZr izLrqr vkosnui Lohdkj
;ksX; gS
6

¼c½ D;k vihykFkhZ dh vksj ls vkns’k 41 fu;e 27 lh-ih-lh-
ds varxZr izLrqr vkosnui Lohdkj ;ksX; gS
¼l½ D;k vihykFkhZ dh vksj ls vkns’k 23 fu;e 1 lh-ih-lh- ds
varxZr izLrqr vkosnui Lohdkj ;ksX; gS
¼n½ D;k izFke vihyh; U;k;ky; }kjk ikfjr vkyksP; fu.kZ; o
fMdzh fnukad 15-05-17 lk{; o fof/k ds foijhr gksus ls vikLr fd;s
tkus ;ksX; gS
¼b½ D;k ewy okn esa vihykFkhZ@oknh ds }kjk okafNr tkudkjh
nsus ij Hkh olh;rukesa ds laca/k esa vfHkopu ugha djus dh vfHkHkk”kd dh
qfV dk nks”k vihykFkhZ@oknh dks fn;k tk ldrk gS
[7] I have heard Shri Pankaj Jain, learned counsel

for the appellant and perused the record.

[8] In para 2 of the plaint the plaintiff has stated

that since last few years from today he was residing with

Jalam Singh, who treated him like son and after his death

the last ceremony of Jalam Singh was performed by him.

In Para 4 of the plaint he has stated that Jalam Singh has

adopted him. The pleadings in Para 2 and 3 are very brief

and vague in nature. Shri Mohansingh (PW-1) in his

evidence has also stated the same thing. In support of the

adoption he examined Bhimsingh and Madansingh, who

have also given very weak type of evidence about the
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adoption of the plaintiff. Only Madansingh has stated that

29 years back Jalam Singh has kept Mohan Singh in his

house as son and he used to help him in the agriculture

field. The affidavit filed under Order 18 Rule 4 of CPC

was signed by the plaintiff with the specific verification

that the facts stated in the aforesaid paras are true to my

personal knowledge, therefore, the plaintiff cannot go

back and make allegation against the counsel that he has

not pleaded complete facts in the plaint and affidavit.

Both the courts have concurrently examined the pleadings

and evidence came on record about the issue of adoption.

Both the courts have held that the plaintiff is required to

give evidence under Section 5, 6 and 11 to prove the

adoption. The plaintiff has not led any evidence as per the

requirement of the Section 5, 6 and 11 of Hindu Adoption

and Maintenance Act. The concurrent findings of the facts

recorded by the court are not liable to be interfered.

[9] So far the rejection of application under Order

6 Rule 17, 41 and 27 are concerned the plaintiff has
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simply stated that in the application under Order 6 Rule

17 the plaintiff/appellant that the proposed amendment

has not pleaded by the counsel, therefore, for the fault of

counsel he should not made to suffer. The application for

amendment was not filed in consonance with the

provision of Order 6 Rule 17 of CPC, therefore, the

appellate court has rightly rejected the same. So far the

rejection of the application under 23 Rule 1 of CPC is

concerned the Apex Court in the case of V. Rajendran

and another V/s. Annasamy Pandian (dead) through

legal representatives Karthyaya Natchier reported in

2017(5) SCC 63 held that the suit can be permitted to be

withdrawn at any stage in case of any default of formal

nature is there. The defect pointed out by the appellant in

his application was not a defect in formal nature. These

facts were supposed to be in the knowledge of the

plaintiff at the time of filing of the plaint. Even otherwise

the suit has been finally decided against the plaintiff and

now at the stage of appeal he wants to withdraw with
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liberty to file afresh, which is not permissible. Though the

appeal is always treated in a continuation of suit but as

held above the learned trial court has rightly rejected the

application under Order 23 Rule 1 of CPC.

[10] The Supreme Court in the case of Kshitish

Chandra Bose v/s Commissioner of Ranchi, reported in

(1981) 2 SCC 103 has held that the High Court cannot

interfere with the conclusion of fact recorded by the

Courts below, however, erroneous the said conclusion

may appear. Para-11,12 13 of the aforesaid judgment is

reproduced herein below :-

“11. On a perusal of the first judgment of the High
Court we are satisfied that the High Court clearly exceeded
its jurisdiction under Section 100 in reversing pure
concurrent findings of fact given by the trial court and the
then appellate court both on the question of title and that of
adverse possession. In the case of Kharbuja Kuer v.
Jangbahadur Rai, AIR 1963 SC 1203, this Court held that
the High Court had no jurisdiction to entertain second
appeal on findings of fact even if it was erroneous. In this
connection this Court observed as follows:

“It is settled law that the High Court has no
jurisdiction to entertain a second appeal on the
ground of erroneous finding of fact.

As the two courts approached the evidence
from a correct perspective and gave a concurrent
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finding of fact, the High Court had no jurisdiction
to interfere with the said finding. ”

To the same effect is another decision of this Court in the
case of R. Ramachandran Ayyar v. Ramalingam Chettiar,
AIR 1963 SC 302, where the Court observed as follows:

“But the High Court cannot interfere with the
conclusions of fact recorded by the lower appellate
court, however, erroneous the said conclusions may
appear to be to the High Court, because, as the
Privy Council observed, however, gross or
inexcusable the error may seem to be there is no
jurisdiction under section 100 to correct that
error.”

12.The same view was taken in two earlier decisions of this
Court in the cases of D.Pattabhiramaswamy v. Hanymayya,
AIR 1959 SC 57 and Raruha Singh v. Achal Singh, AIR
1961 SC 1097.

13. Thus, the High Court in this case had no jurisdiction
after reversing the concurrent findings of fact of the Courts
below on the question of adverse possession to remand the
case to the Additional Judicial Commissioner on the
question of title which also was concluded by the
concurrent findings of fact arrived at by the two courts as
indicated above.”

[11] Both the Courts have not committed error

while dismissing the suit. Therefore, I do not find any

ground and question of law involved in this appeal. In

view of the above, this second appeal is dismissed.

C.c. as per rules.

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(Vivek Rusia)
Judge
ns

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