IN THE COURT OF ACJCCJARC, SHAHDARA, KARKARDOOMA
COURTS, DELHI
Presided By : Sudhir Kumar Sirohi, DJS
Civil Suit No: 8809/16
Sh. Manoj Kumar
S/o Sh. Kanwar Pal Singh
R/o 134, Chandu Park,
Gali no. 2, Krishna Nagar,
Delhi 110051 … Plaintiff
Versus
Sh. Vijay Kumar
S/o Late Sh. Ganga Prasad
R/o Vilalge Lalner,
Pargana Pahasu, Tehsil Khurja,
District Bulandshahar, UP
Also At:
1. 134, Chandu Park, Gali no. 2,
Krishan Nagar, Delhi 110051
2. Sh. Kanwar Pal Singh
S/o Sh. Babu Singh
R/o 134, Gali no. 2,
Chandu Park, Krishna Nagar,
Delhi 110051
3. Smt. Ramwati
W/o Late Sh. Ganga Prasad
R/o Village Lalner, Pargana Pahasu,
Tehsil Khurja, District, Bulandshahdar, UP
(defendant no. 3 deleted vide order dated 18.03.2016) … Defendants
SUIT FOR DECLARATION AND PERMANENT
INJUNCTION
Civil Suit No. 8809/2016
Sh. Manoj Kumar Vs. Sh. Vijay Kumar
Page No. 1 of 10
DATE OF INSTITUTION : 08.09.2014
DATE OF FINAL ARGUMENTS : 22.11.2018
DATE OF DECISION : 21.12.2018
JUDGMENT
1. The plaintiff had filed the present suit against defendant. By way of this
suit, the plaintiff has sought reliefs of declaration and permanent injunction.
2. In order to justify the grant of the aforesaid reliefs/prayer, the plaintiff
has interalia pleaded in the plaint that plaintiff is residing at 134, Gali no. 2,
Chandu Park, Krishan Nagar, Delhi 110051. The defendant no. 1 is relative
(mother’s sister’s son/mausiji’s son) of the plaintiff. The defendant no. 2 is the
father of the plaintiff. The real father name of the defendant no. 1 is Late Sh.
Ganga Parshad and real mother name is Smt. Ramwati R/o village Lalner,
pargana Pahasu, Tehsil, Khurja, District Bulandshahar and Smt. Ramwati is
defendant no. 3 and Sh. Ganga Parshad was expired. The defendant no. 2
has three sons and four daughters namely Kishore Thakur, Rajender Kumar,
Manoj Kumar, Sushila @ Rani, Meena, Seema and Reena.
3. It is further averred that defendant no. 2 had filed a petition under
Section 125 Cr. PC against the petitioner and in that matter, the defendant
no. 2 disclosed that he has adopted the defendant no. 1. In RTI and reply
from Food Supply Department dated 09.05.2014, the department has sent
the copy of the alleged adoption deed dated 18.07.1993. Earlier the
department in a RTI reply also sent copy of statement of defendant no. 2
recorded by food department stated that he adopted the defendant no. 1 near
Civil Suit No. 8809/2016
Sh. Manoj Kumar Vs. Sh. Vijay Kumar
Page No. 2 of 10
about 1990, the illegal alleged adoption deed the plaintiff complained before
various authorities, Delhi Police on 28.05.2013 vigilance Election Office on
12.01.2013, reminder on 04.03.2013 to CEC in the month of May 2013
passport office on 02.05.2013, vigilance passport on 10.06.2013, ration
department vigilance on 10.01.2013, reminder dated 04.03.2013, ration
department dated 24.06.2013 regarding illegal, forged and anti dated,
fabricated adoption deed prepared by the defendant no. 1, 2 and 3 and their
associates.
4. It is further averred by plaintiff that defendant no. 1 and 2 also got
prepared passport of the defendant no. 1 in collusion of defendant no. 1 to 3,
as name of the defendant no. 1 as his son falsely shown by the defendant no.
2 first time about alleged illegal adoption deed and plaintiff came to know
about it in May, 2013.
5. It is further averred that adoption deed is anti dated, illegal, forged and
fabricated paper prepared by the defendant no. 1, 2 and 3 in collusion of his
associates. The said alleged adoption deed dated 18.07.1993 is anti dated
and stamp and signature of notary public shown by the defendant no. 2 for
attestation are forge and fabricated by the defendant no. 1 and 2. The
defendants are continuously threatening to misuse of the said illegal adoption
deed in question. The defendant no. 1 is taking undue advantage of illegal
adoption deed. Defendant no. 2 falsely stated before various authorities
deliberately that the defendant no. 1 is residing in 134, Gali no. 2, Chandu
Park, Krishna Nagar, Delhi 110051 whereas the defendant no. 1 never
resided in Delhi at that place. The defendant no. 1 since inception is residing
at his native place at village Lalner, Pargana Pahasu, Tehsil Khurja, District,
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Sh. Manoj Kumar Vs. Sh. Vijay Kumar
Page No. 3 of 10
Bulandshahar, UP.
6. It is further averred that the said alleged adoption deed dated
18.07.1993 is manipulated forged paper prepared by the defendant no. 1, 2
and 3 and their associates just to give benefits to defendants no. 1 in getting
and using the passport, voter ID and inclusion of name in ration card of the
defendant no. 2.
7. It is further averred that the defendant no. 1 is of about 33 years old.
The defendant no. 1 to 3 prepared the said adoption deed to get benefit from
various authorities. As there was no reason for the parents of the defendant
no. 1 to give them in adoption to the defendant no. 2. Therefore, the suit has
been filed by plaintiff.
8. Written statement was filed by the defendant no. 2 stating that plaintiff
is misleading the court and did not approach the court with clean hands. The
present suit is nothing but is an attempt to misuse the provisions of law and
legal machinery. It is further averred that suit of the plaintiff is a counter blast
to the petition under Section 125 Cr. PC filed by the defendant no. 2 against
the plaintiff, which is pending before the court of Sh. Pradeep Chadda,
Principal Judge, Family Court, Karkardooma Courts, Delhi and only motive of
the plaintiff is pressurize the answering defendant to withdraw the said
petition, hence the suit is liable to be dismissed. It is further averred that
present suit of the plaintiff is not maintainable as the plaintiff has no locus
standi to file the present suit because the plaintiff has no right to challenge
the will and wish of the defendant no. 1 and even has also no right to
challenge the adoption deed. It is submitted that the defendant no. 2 was/is
Civil Suit No. 8809/2016
Sh. Manoj Kumar Vs. Sh. Vijay Kumar
Page No. 4 of 10
having every authority to adopt the child and even at present, the defendant
no. 1 and the adopted child is alive and the defendant no. 2 has every right to
take his own decision and no kind of interruption or obstacle is required from
the side of the plaintiff in any manner. Defendant no. 2 has every right, title or
interest to use the said adoption deed as the same is genuine and authentic
and the plaintiff has no right to restrain the defendant no. 2 from using the
said document. Hence the suit is liable to be dismissed.
9. It is further averred by defendant no. 2 that the defendant no. 1 is the
adopted son of the defendant no. 2 and defendant no. 3 is the sister in law of
defendant no. 2 The defendant no. 1 was the son of the defendant no. 3 but
the financial condition of the defendant no. 3 was very critical, therefore, she
was unable to maintain the defendant no. 1 as the defendant no. 3 having
seven children at that time and the husband of the defendant no. 3 was not
having sufficient means to maintain his family and due to this reason, the
defendant no. 2 adopted the defendant no. 1 as his son in the year 1993. The
defendant no. 2 adopted the defendant no. 1 as his son to provide the better
education and to maintain the defendant no. 1 properly.
10. Written statement was not filed on behalf of defendant no. 1 despite
service.
11. Vide order dated 18.03.2016 plaintiff deleted defendant no. 3 and now
only there are only two defendants i.e. defendant no. 1 Mr. Vijay Kumar and
defendant no. 2 Mr. Kanwar Pal. The right of defendant no. 1 Mr. Vijay Kumar
to file written statement was closed on 05.02.2015 and vide order dated
22.07.2016 defendant no. 1 was proceeded exparte.
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Sh. Manoj Kumar Vs. Sh. Vijay Kumar
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12. On the aforesaid pleadings of the parties, the following issues were
framed by the Ld. Predecessor of court on 22.07.2016:
“1. Whether the relief of declaration sought by the
plaintiff is barred by the law of limitation? OPP
2. Whether the plaintiff is entitled to the declaration,
as prayed for? OPP
3. Whether the plaintiff is entitled to the prohibitory
injunction, as prayed for?OPP
4. Relief.”
13. Plaintiff examined himself as PW 1 and filed his affidavit Ex.
PW1/A and relied upon the following documents i.e. certified copy of
evidence affidavit of Sh. Kanwar Pal Singh in the suit no. 300/2009 titled as
Manoj Kumar Vs. Kanwar Pal Ex. PW 1/1, copy of complaint dated
28.05.2013 to the police commissioner Ex. PW 1/2 (OSR), copy of complaint
dated 04.03.2013 to the vigilance director Ex. PW 1/3 (OSR)), copy of
complaint dated 02.05.2013 to the passport officer is Ex. PW 1/4 (OSR)
(objected to), copy of complaint dated 10.06.2013 to the vigilance director Ex.
PW 1/5 (OSR) (objected to), reminder to the vigilance director dated
04.03.2013 Ex. PW 1/6 (OSR), complaint dated 24.06.2013 to the
commissioner food and civil supply Ex. PW 1/7 (OSR) (objected to), copy of
complaint dated 14.01.2013 to the vigilance department Mark A and copy of
complaint dated 10.01.2013 to the vigilance department food and civil supply
Mark B. PW 1 was cross examined by other party.
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Sh. Manoj Kumar Vs. Sh. Vijay Kumar
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14. Defendant no. 2 Mr. Kunwar Pal has examined himself as D2W1
and filed his affidavit Ex. D2W1/A. He was cross examined by Ld. counsel for
the plaintiff at length.
15. I have heard Ld. counsel for the defendant and despite various
opportunities even written arguments not filed by the plaintiff.
Issue wise discussion:
Issue no. 1 Whether the relief of declaration sought by the
plaintiff is barred by the law of limitation? OPP
16. Plaintiff has deposed that he came to know about the adoption of
defendant no. 1 during the maintenance proceedings case u/s 125 CrPC filed
by defendant no. 2 against the plaintiff in May 2013. Plaintiff during cross
examination deposed that the defendant no. 2 filed the petition u/s 125 CrPC
in the year 2012 but he failed to tell the exact date, month and year of
adoption of Sh. Vijay Kumar. This fact that the maintenance petition was filed
by the defendant no. 2 against the plaintiff u/s 125 in 2012 is not denied by
the defendant no. 2. Plaintiff has filed ration card which has been admitted by
defendant no. 2 Mr. Kunwarpal at the time of admission/denial on 22.07.2016
(for the purpose of identification the document is given identification Mark as
AA at the time of judgment) and the said ration card was issued in name of
defendant no. 2 on 10.07.1998 in which only the name of defendant no. 2, his
wife Ms. Prakashi, his daughters Ms. Seema and Ms. Reena alongwith his
two sons Manoj and Kishore has been mentioned, means till 10.07.1998, the
name of defendant no. 1 was not included in the ration card of the defendant
no. 2. Though, the alleged adoption deed Ex.PW1/D1 was executed on
16.07.1993. In the document Mark A i.e. the complaints to the Delhi
Civil Suit No. 8809/2016
Sh. Manoj Kumar Vs. Sh. Vijay Kumar
Page No. 7 of 10
Government regarding the preparation of voter ID card of defendant no. 1 in
which father’s name of defendant no. 1 has been mentioned as defendant no.
2 and the complaint was made on 14.01.2013. Plaintiff also complaint to the
passport department regarding the wrong particulars of defendant no. 1 with
respect to father’s and mother’s name in the complaint dated 02.05.2013
(Ex.PW1/4), therefore, these documents shows that the plaintiff was aware
regarding the fact that the defendant no. 1 is using the name of his father
before May 2013 but this does not mean that the plaintiff was aware of
adoption deed Ex.PW1/D1. Plaintiff has categorically stated in his affidavit
Ex.PW1/A that he came to know about the adoption deed in May 2013 during
the maintenance proceedings u/s 125 CrPC by defendant no. 2 against the
plaintiff and this fact of filing of proceedings u/s 125 CrPC is not denied by the
defendant rather the defendant no. 2 has taken defence that the present suit
of the plaintiff is a counter blast to the petition u/s 125 CrPC filed by the
defendant no. 2 against the plaintiff, thereupon, this initial onus which was on
plaintiff shifted upon the defendant no 2 to show that the plaintiff was aware of
adoption deed Ex.PW1/D1 before filing of the petition u/s 125 CrPC but the
defendant no. 2 has failed to discharged the said onus and suit was filed on
06.09.2014 within three year from May 2013 hence the this issue is decided
in favour of plaintiff and the suit is within limitation period.
17. Issue no. 2 and 3 will be decided by common discussion as both
the inter related to each other.
Issue no. 2 Whether the plaintiff is entitled to the declaration, as prayed for?
OPP
Issue no. 3 Whether the plaintiff is entitled to the prohibitory injunction, as
prayed for?OPP
Civil Suit No. 8809/2016
Sh. Manoj Kumar Vs. Sh. Vijay Kumar
Page No. 8 of 10
The adoption deed Ex.PW1/D1 was executed on 18.07.1993.
Plaintiff has taken defence that the adoption deed does not bear the signature
of his mother. The conditions of valid adoption has been dealt in Section 6,
Section 7, Section 9, Section 10 and Section 11 of the Hindu Adoption and
Maintenance Act, 1956. As per document Mark AA i.e. Ration card of the
defendant no. 2 admitted by defendant no. 2, it was issued on 10.07.1998 in
which the name of plaintiff has been shown and age of the plaintiff has been
mentioned as 20 years. In addition to this, in the document Mark AA name of
other son of plaintiff Mr. Kishore has been mentioned and his age has been
mentioned as 18 years. It means in the year 1993 when the alleged adoption
deed was executed, the defendant no. 2 was having a son namely Mr. Manoj
Kumar and Mr. Kishore and as per Section 11 (1) of Hindu Adoption and
Maintenance Act a person must not have a hindu son, son’s son, son’s son’s
son living at the time of adoption therefore, the said condition of Section 11
(1) of Hindu Adoption and Maintenance Act has been breached by the
defendant no.2 at the time of said adoption of defendant no. 1 by defendant
no. 2. Section 11 is mandatory in nature as the word ‘must’ has been used for
other conditions of valid adoption in Section 11 of Hindu Adoption and
Maintenance Act, 1956. Therefore, even for the sake of arguments if it is
considered that the wife of defendant no. 2 has agreed for adoption then also
the alleged adoption of defendant no. 1 by defendant no. 2 is not valid due to
violation of condition of Section 11 (1) of Hindu Adoption and maintenance
Act, 1956. Defendant no. 1 by way of alleged document Ex.PW1/D1 has
become adopted son of defendant no. 2 and will affect right and share of
plaintiff, therefore, plaintiff has cause of action against defendants. Defendant
no. 1 remained exparte during the trial, therefore, the testimony of plaintiff
with respect to defendant no . 1 remained unrebutted Accordingly, the
Civil Suit No. 8809/2016
Sh. Manoj Kumar Vs. Sh. Vijay Kumar
Page No. 9 of 10
plaintiff has discharged the onus of second and third issue and the issues are
decided in favour of plaintiff.
RELIEF
18. In view of the discussion above, the suit of the plaintiff is decreed
and decree of declaration is passed in favour of plaintiff and against
defendant no. 1 and 2 declaring the adoption deed dated 18.07.1993 of
adoption of defendant no. 1 by defendant no. 2 as null and void document.
Decree of prohibitory injunction is also passed in favour of Plaintiff and
against defendant no. 1 and 2 stopping them from using the alleged adoption
deed dated 18.07.1993. Pending applications, if any, stands disposed off.
After preparation of decreesheet, file be consigned to record room after due
compliance.
Announced in open Court (Sudhir Kumar Sirohi)
today on 21.12.2018 ACJ/CCJ/ARC/Shahdara
Karkardooma Courts/Delhi
Digitally signed
by SUDHIR
KUMAR
SIROHI
SUDHIR Location:
KUMAR Shahdara
Karkardooma
SIROHI Courts, Delhi
Date:
2018.12.21
16:14:15 +0530
Civil Suit No. 8809/2016
Sh. Manoj Kumar Vs. Sh. Vijay Kumar
Page No. 10 of 10