Bhagwani vs Diwan Singh And Ors on 12 January, 2018

Regular Second Appeal No.3311 of 2016 (OM) {1}

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH

R.S.A.No.3311 of 2016 (OM)
Date of Decision: January 12, 2018

Bhagwani
…Appellant
Versus

Diwan Singh and others
…Respondents

CORAM: HON’BLE MR.JUSTICE AMIT RAWAL, JUDGE

Present: Mr.Ashwani Bakshi, Advocate,
for the appellant.

*****

AMIT RAWAL, J. (Oral)

CM Nos.8787-C 8788-C of 2016

For the reasons stated in the applications, which are supported

by affidavits, delay of 8 days in filing and 86 days in re-filing the appeal is

condoned.

Applications stand disposed of.

RSA No.3311 of 2016

Appellant-plaintiff is in Regular Second Appeal against the

concurrent findings of law and facts, whereby the suit instituted for

claiming the following relief, has been dismissed by both the Courts below:-

“A decree for declaration in favour of the plaintiff and against
the defendants may kindly be passed to the effect that adoption
deed dated 25.02.1987 alleged to be executed by above-said
Sh.Inder Singh @ Rajender and will dated 09.02.1984 alleged
to be executed by above-said Sh.Harkishan along with
subsequent revenue record are illegal, null and void and not
effective on the rights of the plaintiff and the plaintiff is owner

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in possession of 1/3rd share over the aforesaid land measuring
117 kanal 15 marla mentioned in Para no.1 of the plaint and
further pass a consequential decree for permanent injunction
restraining the defendants from alienating the suit land and
interfering into the peaceful possession of the plaintiff over the
same in any manner.

It is further prayed that if during the pendency of the
present suit, the plaintiff is dispossessed from the suit land by
the defendants forcibly, then a decree for mandatory injunction
directing the defendants to restore possession of the plaintiff
over the suit land may also be passed in favour of the plaintiff
and against the defendants.”

Mr.Ashwani Bakshi, learned counsel for the appellant-plaintiff

submits that the appellant-plaintiff instituted the aforementioned suit on the

premise that Harkishan had died intestate and left behind Bhagwani

(plaintiff) and brother Inder Singh @ Rajender. During his life time, he had

1/3rd share in the land measuring 117 kanals 15 marlas, but the defendant-

respondents, on the basis of forged and fabricated Will dated 9.2.1984, got

the mutation of the land measuring 16 kanals and as well as with regard to

the remaining land after demise of Harkishan. Since Inder Singh @

Rajender was issueless, he adopted Davender-defendant No.2 as his son and

later on executed adoption deed, which was registered on 25.2.1987. All

these very documents are the result of forgery and fraud played upon, the

executor of the same.

He further submits that the Courts below had erroneously

placed the onus on the appellant-plaintiff. It should have been on the

respondent-defendants. The original Will has also not seen the light of the

day and, therefore, the Will could not have been referred to. The documents

Ex.P-15 to Ex.P-19, i.e., voter list, ration card and school record brought on

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record established that the parentage of Davender-defendant No.2 was of a

biological father and not of the adopted father, but the trial Court had not

adverted to the aforementioned facts, though there is a passing reference by

the Lower Appellate Court. Date of birth of Davender is 3.5.1969 and was

not capable of being adopted at the time of alleged execution of adoption

deed as he was above 15 years, then it was incumbent upon the respondent-

defendants to prove the give and take ceremony. The contents of the

adoption deed revealed that Davender was adopted by Inder Singh @

Rajender, but there is no such evidence, therefore, the adverse presumption

could not have been drawn and, thus, urges this Court for setting-aside of

the concurrent findings of the Courts below as substantial questions of law

with regard to the appreciation of the findings arise for consideration by this

Court.

I have heard the learned counsel for the appellant, appraised the

paper book and of the view that there is no merit and substance in the

submissions of the learned counsel for the appellant-plaintiff.

The trial Court, on the basis of the pleadings of the parties,

particularly when the appellant-plaintiff had challenged the Will in

affirmative, framed the following issues-

“1. Whether the adoption deed dated 25.02.1987 and Will
dated 09.02.1984 along with the subsequent revenue record
entered on the basis of aforesaid Will dated 09.02.1984 are
illegal, null and void on the grounds as averred in the plaint?

OPP

2. Whether the plaintiff is owner in possession of 1/3rd
share of the suit property? OPP

3. Whether the plaintiff is entitled to decree for permanent
injunction as prayed for? OPD

4. Whether the suit of the plaintiff is not maintainable in the

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present form? OPD

5. Whether the plaintiff has not come before the court with
clean hands? OPD

6. Relief.”

The onus to prove issue No.1 was on the appellant-plaintiff. It

was incumbent upon the plaintiff to move an application for issuance of

directions to the respondent-defendants to prove the original Will. Since this

exercise had not been done and the original Will had not been proved, the

Courts, thus, rightly drew an adverse inference as the appellant-plaintiff has

not discharged the onus by leading cogent evidence. It is established that the

burden of proof heavily relied upon the appellant-plaintiff to prove the

documents to be sham. Similar analogy would also apply to the instant case,

therefore, the argument of Mr.Bakshi is not able to cut the ice with regard to

the non-production of the original Will.

As regards the adoption deed, Section 16 of the Hindu

Adoptions and Maintenance Act, 1956 emphasis an obligation upon the

Courts to draw an inference with regard to the registration of a document

and it has been interpreted by various Courts that the ceremonies are not

required to be established. Section 16 reads thus:-

“16 Presumption as to registered documents relating to
adoption. — Whenever any document registered under any law
for the time being in force is produced before any court
purporting to record an adoption made and is signed by the
person giving and the person taking the child in adoption, the
court shall presume that the adoption has been made in
compliance with the provisions of this Act unless and until it is
disproved.”

On the other hand, both the attesting witnesses of the adoption

deed, namely, Partap Singh and Jagphool, DW-3 and DW-4 respectively

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stated that the adoption deed was executed by Inder Singh @ Rajender.

DW-5 Umesh Kumar Sharma, Deed Writer, who had scribed the adoption

deed, stated that the adoption deed Ex.D1 was scribed by him at the instance

of Inder Singh @ Rajender and the natural parents of the adopted son and

after scribing the same, the contents were read over and explained to them.

All the ingredients vis-a-vis registration of the adoption deed have been

proved. The appellant-plaintiff has failed to prove the ingredients of Order 6

Rule 4 CPC with regard to the fraud and forgery and, therefore, the Courts

below did not have any option but to dismiss the suit.

Vis-a-vis the non-advertence to the voter list, ration card and

school record, i.e., Ex.P15 to Ex.P19, the Lower Appellate Court examined

the said documents and held that all the documents were prior to the

adoption deed. The findings aforementioned of the Courts below do not

enable me to ascribe a different view than the one arrived at.

For the reasons stated above, no ground for interference in the

concurrent findings of the Courts below is made out as no substantial

question of law arises for determination by this Court.

Resultantly, the appeal stands dismissed.

January 12, 2018 ( AMIT RAWAL )
ramesh JUDGE

Whether speaking/reasoned Yes/No

Whether Reportable: Yes/No

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