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Malam Singh vs Virendra Singh on 24 July, 2019

1 SA-675-2019

The High Court of Madhya Pradesh
SA-675-2019
(Malam Singh and another Vs. Virendra Singh and others)

Gwalior, Dated : 24-07-2019

Shri D.D. Bansal, counsel with Shri Abhishek Singh Bhadoriya,

counsel for the appellants.

Shri K.N. Gupta, senior counsel with Shri R.S. Dhakad, counsel

for the respondents No. 1 to 6.

This second appeal under Section 100 of CPC has been filed

against the judgment and decree dated 07.02.2019 passed by 1 st

Additional Sessions Judge, Vidisha in RCA No.65/2017 thereby setting

aside the judgment and decree dated 26.07.2017 passed by 2 nd Civil

Judge, Class-I, Ganjbasoda District Vidisha in Civil Suit No. 6-A/2015

and the suit filed by the appellants has been dismissed.

2. The necessary facts for the disposal of the present appeal in short

are that the appellants filed a suit for declaration of title and permanent

injunction on the ground that they are the owner and in possession of

Survey Nos. 104 area 0.501 hectares, 106 area 0.889 hectares and 107

area 0.209 hectares, total area 1.599 hectares situated in village Mahua

Dongari, Patwari Halka No. 22, Tahsil Nateran, District Vidisha. It is the

case of the plaintiffs that Jado Bai was the mother of Mohar Singh and

Heera Lal. Balaji was the father of Mohar Singh and after his death, Jado

Bai was kept by Bhujwal Singh. Heeralal and Bhuri Bai were born out of

the relationship of Bhujwal Singh and Jado Bai. Shankar was the father
2 SA-675-2019

of Balaji and Bhujwal Singh. It was alleged that Shankar Singh, Balaji,

Bhujwal Singh, Jado Bai, Mohar Singh, Bhuri Bai and Heeralal are dead.

Bhuri Bai was married to one Laxman Singh and she has expired about

15-16 years back. After marriage Bhuri Bai was residing in village

Khaikheda and she did not have any property in village Mahua Dongari.

Kashi Bai was the wife of Heeralal who has expired in the year 2001 and

Heeralal has expired in the year 2007 and he was issueless. Heeralal was

residing with the plaintiffs and the plaintiffs were looking after Heeralal

and they were cultivating the field of Heerala. As Heeralal was old and

was not keeping well, therefore, he executed a “Will” on 29.01.1990 in

favour of Rajmohan S/o Dharu Singh. In the year 2002, when Jagannath

Singh and Gajraj Singh, who were the sons of Bhuri Bai demanded some

land from Heeralal, then by revoking the earlier “Will”, Heeralal

executed another “Will”, according to which, 3 Bighas and 5 Biswa of

land out of 1.359 hectares of Survey No. 39 was given to Shankar

Bhagwan and 5 Bighas and 11 Biswa of land out of Survey No. 44 was

given to Jagannath and Gajraj Singh. Karar Wale field was equally given

to both Jagannath Singh and Gajraj Singh and half of Survey No. 75 area

14 Biswa was given to them. Survey No. 104 area 2 Bighas and 4 Biswa,

Survey No. 106 area 4 Bighas and 4 Biswa and Survey No. 107 area 1

Bigha was distributed equally between Dharu Singh and Malam Singh. It

was further pleaded that Heeralal had also given 4 Bighas of land to

Dharu Singh which is adjoining to the well. The “Will” was executed in

front of Panchas and accordingly, the plaintiffs are in possession of the
3 SA-675-2019

property in dispute. It was further pleaded that Virendra Singh S/o

Jagannath Singh taking advantage of the advanced age and ill health of

Heeralal took him on the pretext of getting his treatment and prepared a

concocted and sham adoption deed and similarly Jagannath Singh and

Gajraj Singh got the sale deed executed in their favour in respect of

0.680 hectares out of 1.359 hectares of Survey No. 39, Survey No. 44

area 1.160 hectares and Survey No. 75 area 1.045 hectares for a

consideration of Rs.2,94,000/- whereas neither any consideration amount

was paid to Heeralal nor the possession was delivered by Heeralal. Thus,

it was pleaded that Heeralal had neither executed the sale deed nor any

adoption deed. It was further pleaded that Virendra Singh on the basis of

forged adoption deed has got his name mutated in a clandestine manner

and on the basis of the said adoption deed, Virendra Singh has executed

a registered sale deed in favour of Saudan Singh and Khilan Singh in

respect of disputed land bearing Survey Nos. 106, 107 and 104. It was

further pleaded that plaintiffs are in possession of the land in dispute and

all proceedings were done with a view to adversely affect the rights of

the plaintiffs.

3. The defendant No. 1 to 6 filed their written statement and pleaded

that the plaintiffs are not the owner and in possession of the Survey Nos.

104, 106 and 107. However, it was submitted that Shankar Singh, Balaji,

Bhujwal Singh, Jado Bai, Mohar Singh, Bhuri Bai and Heeralal have

expired. It was further admitted that Heeralal had died issueless. It was

specifically pleaded that Virendra Singh was adopted by Heeralal by
4 SA-675-2019

registered adoption deed dated 12.08.2004. It was further denied that the

adoption deed was the sham document. All other plaint averments are

denied.

4. The Trial Court after framing issues and recording evidence

decreed the suit by judgment and decree dated 26.07.2017 and held that

the plaintiffs are the owner of Survey Nos. 104, 106 and 107 situated in

village Mahua Dongari, Tahsil Nateral, District Vidisha and the

defendants were restrained by permanent injunction from interfering

with the peaceful possession of the plaintiffs.

5. Being aggrieved by the judgment and decree passed by the Trial

Court, the defendant filed an appeal, which was registered as RCA No.

65/2017. First Appellate Court by the impugned judgment and decree

dated 07.02.2019 has allowed the appeal and has held that since the

plaintiffs have failed to prove that they are in possession of the land in

dispute and in absence of consequential relief of possession, the suit is

not maintainable in the light of Section 34 of Specific Relief Act.

6. Challenging the judgment and decree passed by the Court below,

it is submitted by the counsel for the appellant that the Appellate Court

has held that the Trial Court did not commit any mistake in holding that

the Will Ex. P-1 was proved in accordance with law. It is further

submitted that the Appellate Court itself has come to a conclusion that

Virendra Singh was more than 15 years of age on the date of said so

called adoption deed, wrongly held that, however, as the adoption deed

was not challenged by the plaintiffs, therefore, it is binding. It is further
5 SA-675-2019

submitted that when adoption is not in accordance with law, then it is a

void document and it does not require and it can be challenged in the

collateral proceedings.

7. Per contra, it is submitted by the counsel for the State that where

the adoption deed is a registered document then in view of Section 16 of

the Hindu Adoption and SectionMaintenance Act, 1956 a presumption has to be

drawn to the effect that the adoption has been made in accordance with

the provisions of the Act unless and until it is disproved.

8. Heard the learned counsel for the parties.

9. In the present case, the Appellate Court has come to a conclusion

that Virendra Singh was above the age of 15 years on the date of

adoption. Section 10 of the Hindu Adoptions and SectionMaintenance Act, 1956

as under:-

“10. Persons who may be adopted.–No person
shall be capable of being taken in adoption unless the
following conditions are fulfilled, namely:–

(i) he or she is a Hindu;

(ii) he or she has not already been adopted;

(iii) he or she has not been married, unless there
is a custom or usage applicable to the parties which
permits persons who are married being taken in adoption;

(iv) he or she has not completed the age of
fifteen years, unless there is a custom or usage applicable
to the parties which permits persons who have completed
the age of fifteen years being taken in adoption.”

10. Thus, for a valid adoption, the age of the child should not be more

than 15 years and since the finding of the Appellate Court is that

Virendra Singh was more than 15 years of age on the date of said

adoption deed, therefore, it is held that the adoption of Virendra Singh
6 SA-675-2019

was not in accordance with law. Under these circumstances, where the

Appellate Court itself has given a finding that the adoption was not in

accordance with the provisions of Section 10 of the Hindu Adoptions

and SectionMaintenance Act, therefore, no presumption can be drawn in favour

of the registered adoption deed as per the provisions of Section 16 of the

Hindu Adoptions and SectionMaintenance Act. So far as the contention of the

appellants that since the adoption of Virendra Singh was contrary to the

provisions of Hindu Adoptions and SectionMaintenance Act, therefore, the

plaintiffs were not required to challenge the adoption deed is concerned,

this Court is of the considered opinion that the submission made by the

counsel for the appellants cannot be accepted. Even if an order is an

illegal order, then still it is required to be challenged and until and unless

it is set aside, the same will have the force of law. In the present case, the

appellants have not challenged the adoption deed.

11. The Supreme Court in the case of SectionSneh Gupta v. Devi Sarup and

others reported in (2009) 6 SCC 194 has held as under:-

“53. There cannot be any doubt that even if an
order is void or voidable, the same must be set aside, as
has been held by this Court in SectionM. Meenakshi v. Metadin
Agarwal and SectionSultan Sadik v. Sanjay Raj Subba.

56. SectionIn State of Punjab v. Gurdev Singh this
Court held: (SCC p. 6, para 10)
“10. It will be clear from these principles,
the party aggrieved by the invalidity of the order
has to approach the court for relief of declaration
that the order against him is inoperative and not
binding upon him. He must approach the court
within the prescribed period of limitation. If the
statutory time-limit expires the court cannot give
the declaration sought for.”

7 SA-675-2019

12. Thus, it is held that the Appellate Court did not commit any

mistake in holding that in absence of challenge to the adoption deed, the

same cannot be held to be void. Further, the Appellate Court has held

that the appellants are not in possession of the land in dispute and they

have not prayed for decree of possession. In the present appeal, the

appellants have not challenged the said finding recorded by the

Appellate Court. Findings of possession is a finding of fact and unless

and until, it is challenged it cannot be reconsidered by the Appellate

Court. No substantial question of law has been proposed in that regard.

Neither any submissions were made as to how the findings of possession

recorded by the Appellate Court are perverse. Once it is held that the

appellants are not in possession of the land in dispute then in the light of

Section 34 of the Specific Relief Act, the suit filed by the appellants for

mere declaration without seeking the consequential relief is bound to fall

as the same is not maintainable.

13 Accordingly, this Court is of the considered opinion that no

substantial question of law arises in the present appeal. The judgment

and decree dated dated 07.02.2019 passed by 1st Additional Sessions

Judge, Vidisha in RCA No.65/2017 is hereby affirmed.

14. Resultantly, the appeal fails and is hereby dismissed.

(G.S. Ahluwalia)
Judge

Abhi
ABHISHEK
CHATURVEDI
2019.07.30
16:47:41 +05’30’

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