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
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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
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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
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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
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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
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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.”
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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’