- (1.) S. K. Singh, J. By means of this writ petition, petitioner has challenged the judgment of the Deputy Director of Consolidation and that of the Settle ment Officer, Consolidation dated 14-12- 1990 and 20-3-1989 (Annexures 5 and 3) respectively.
(2.) PROCEEDINGS are under Section 9-A (2) of the UPCH Act which relates to the adjudication of dispute about title between the parties. The dispute re lates to land comprised in Khata No. 203 situated in village Nonapar, Tappa Bhatni' District Deoria which was recorded in the basic year in the name of respondent No. 3. The petitioner filed objection claiming himself to be co-tenant to the extent of 1/3rd share on the ground so stated in the objection, which has been detailed in various sub-paragraphs of paragraph 2 of the writ petition. A pedigree was also given in respect to which there appears to be no dispute. The claim was mainly on the ground that the land was Seer of Birja Tiwari and thereafter as in the family in first cadre only Raghunath remained, according to the pedigree as men tioned, the petitioner has 1/3rd share. The claim of the petitioner was resisted mainly on the ground that Ram Cheez adopted Ram Chandra-respondent No. 3 by means of adoption deed dated 23-12-1946 and therefore, in respect to rights of Ram Cheez, respondent No. 3 is entitled to succeed and his name is rightly recorded in the basic year. Par ties adduced oral and documentary evidence in support of their respective cases. The Consolidation Officer by its judgment dated 24-9-1980 accepted the claim of petitioner and accepted his 1/3rd share. Appeal was filed by respondent No. 3. The petitioner also filed an appeal, apparently under some misconception. Appeal is claimed to have been decided in ex-pane manner without adequate opportunity to the petitioner and therefore, when the ap peal was allowed by judgment dated 20-3-1989, petitioner filed restoration application but thereafter as it was not being properly attended, he filed revision before the Deputy Director of Consolidation who dismissed the revision by its judgment dated 14-12-1990 and thus judgment of the Revisional Court and that of the appel late authority are under challenge. Submission of learned Counsel for the petitioner is that Ram Chandra was never adopted by Ram Cheez and adoption deed so relied upon is a farzi document. Neither its execution is proved nor any ceremony about giving and taking is proved and in fact from the own conduct of respondent No. 3 be sides various circumstances and docu ments on record, respondent No. 3 has been proved to be throughout son of Sahadeo. It is submitted that Sahadeo never signed the alleged deed and in fact, in all documents. Ram Chandra is shown to be the son of Sahadeo. It is further submitted that Ram Cheez ex ecuted gift deed in favour of all three brothers namely Sahadeo, Jayanti and Ram Vrat and in Khasra extract, petitioner's name is shown to be in pos session in the remarks column and therefore, on all these facts, the Con solidation Officer has rightly accepted the petitioner's claim but the appellate authority and the Revisional Court taking a perverse view in the matter has negatived petitioner's claim. The sub mission is that as voluminous evidence as referred by the Consolidation Officer has not been noticed by the Appellate Court and the Revisional Court, the mat ter required a fresh consideration by Revisional Court who is said to be the last Court of fact. Learned Counsel for the petitioner in support of his submis sion that the proof of ceremony of giving and taking in the adoption deed is necessary, referred to the decision of the Apex Court given in the case of Lakshaman Singh Kothari v. Smt. Rup Kunwar, AIR 1961 SC 1378, the decision given in the case of Nilima Mukherjee v. Kama Shusan Ghosh, 2002 (1) JCLR 442 (SC) : 2001 (Suppl.) RD 536 : 2001 (44) ALR 812. The provisions of Hindu Law was also referred. In response to the aforesaid, submission of learned Counsel for the respondent is that besides proof of adoption deed, as the deed is twenty year old, it is not to be further proved as there is presumption in law about its validity. Submission is that the adoption deed has never been challenged in the competent Court and therefore, Courts below have rightly maintained the basic year entry in the name of respondent No. 3. It is further submitted that as the petitioner legitimately cannot claim any right in the land and as, he has no locus stand in the matter, his objection being not maintainable, if the Courts below have repelled the petitioner's claim, then there can be no wrong in it. In sup port of the aforesaid submission that if the deed is more than twenty year old, no further proof is required, reliance has been placed on a decision given in the case of Bhola Chaubey v. Man Matun Chaubey, 1964 ALJ 749, the judgment of the Apex Court given in the case of Smt. Ramti Devi v. Union of India, 1996 RD 80. In support of submission that the objection has to be by person inter ested and therefore, on the objection of petitioner, the name of respondents cannot be ordered to be deleted, reliance has been placed on the decision given in Kanhaiya Lal v. Deputy Director of Consolidation, 1974 ALJ 552.
(3.) IN view of aforesaid, this Court has examined the matter in the light of materials as has been placed on record. Besides the controversy that whether the adoption deed being twen ty year old, no further proof was re quired and document was to be ac cepted as it is, this Court has to con sider various other facts and cir cumstances besides voluminous evidence as was available before the Courts below and as has been placed before1 this Court also. Petitioner has brought on record bulk of documentary evidence in the shape of school record, Khasra extracts and documents relat ing to proceedings of earlier cases. In all the school record, respondent No. 3 is shown to be the son of Sahadeo. In the Transfer Certificate, School Leaving Certificate, admission documents and in the declaration in the University, respondent No. 3 was shown to be recorded as son of Sahadeo. The adop tion deed is said to be dated 13-12-1946 but thereafter when for the first time, respondent No. 3 was admitted in school, form was filed by Sahadeo him self and Sahadeo was shown to be father of Ram Chandra. There is a men tion in the documents so filed by petitioner that college staff asked the signatory on the form namely Sahadeo about parentage upon which, a decla ration was given that Ram Chandra is the son of Sahadeo. In all Khasra ex tracts, Ram Chandra is shown to be the son of Sahadeo. There are several money order receipts from which, it is clear that the petitioner has been send ing money to Sahadeo who happened to be elder brother. In Khasra extracts, petitioner is shown to be in possession as 'marfat' to Sahadeo. The adoption deed is not signed by Sahadeo who is said to have given his son in adoption to Ram Cheez. The Consolidation Officer by referring these factors in a precise manner, gave a clear finding that the name of Ram Chandra alone came in the papers without any reference to any amaldaramad in 1354 Fasli. Beeran Tiwari and Thag Tiwari the marginal wit nesses of the adoption deed have not been examined. In all the school papers, revenue papers throughout Ram Chandra is shown to be son of Sahadeo. For the first time when Ram Chandra was admitted in School which was after the alleged adoption deed, he was shown to be son of Sahadeo. At no point of time, till the last Ram Chandra ever tried to get his parentage cor rected as adopted son of Ram Cheez. In his service book also, he is shown to be son of Sahadeo. Oral evidence is contradictory in respect to are ceremony of giving and taking. It is on all these findings, genuineness of deed was rejected by the Consolidation Of ficer and the petitioner was accepted to be co-tenant with the respondents alongwith his legitimate share accord ing to the pedigree. The appellate authority and the Revisional Court mainly on the ground that deed is twen ty year old and it has not been can celled in any competent Court have negatived the petitioner's claim and have reversed the judgment of the Con solidation Officer. The Deputy Director of Consolidation appears to have made wrong observation by saying that the land was throughout recorded in the name of Bikkan and thereafter Ram Cheez whereas the record placed before this Court states otherwise. A fur ther wrong finding was given that Ram Chandra is entered as adopted son of Ram Cheez in the record which is not so. There is a further wrong finding that in no document, the petitioner has been shown to be in possession whereas Khasra extracts have been filed to show his name in possession as 'marfat'. The Deputy Director of Consolidation has concluded by saying that in any view of the matter, entry of Ram Chandra show ing his long possession, confers inde pendent rights on him which appears to be totally misconceived as it was not the case of even respondent and on the other hand, all three were shown to be in pop session in the shape of 'marfat' entry. The appellate authority in a very cryptic manner only by giving emphasis about the document being twenty year old, allowed the appeal and the Revisional Court by recording various findings on the question of fact as noticed above, which apparently do not born out from the record has dismissed the revision. In view of the aforesaid dis cussion, it is clear that besides adoption deed, own conduct of the respondent No. 3 and his father throughout as is ap parent from voluminous evidence was liable to be taken note of by Appellate Court and the Revisional Court. By adoption, mode of succession stands changed and therefore, that is to be ac cepted with all care. Even in presence of adoption deed, ceremony of giving and taking as stated in the principle of Hindu Law as has been noticed by the Apex Court in the case of Lakshman Singh " (supra) has to be kept in mind. Few observations as are contained in the judgment of the Apex Court will be useful to be quoted here; "that a formal ceremony of giving and taking is essential to validate the adoption has been emphasized by the Judicial Com mittee again in Krishna Rao v. Sundara Siva Rao. 58 llnd App 148:1931 PC 109. " Further observation as has been made by the Apex Court in paras-9 and 10 will be useful to be referred at this place; Para-9 : Strong reliance is placed by learned Counsel for the appellant on the decision of the Judicial Committee in Biradhmal v. Prabhabhati, AIR 1939 PC 152. There a widow executed a deed of adoption whereby she purported to have adopted on to her deceased husband a boy. The Sub-Registrar before whom the document was registered, put to the boy's natural father and to the widow questions whether they had ex ecuted the deed. The boy was also present at that time. The Judicial Committee held that, under the said circumstances, mere was proof of giving and taking. The question posed by the Privy Council was staled thus: "the sole issue discussed before their Lordships was the question of fact whether on 30th June, 1924, at about 6 p. m. when the adoption deed was being registered the boy was present and was given by Bhanwarmal and taken by the widow" The question so posed was answered thus at p. 155- ". . . . . . . . . . . Their Lordships think that the evidence that the boy was present at the time when the sub- registrar put to his father and to the widow the questions whether they had executed the deed is sufficient to prove a giving and taking". This sentence is rather laconic and may lend support to the argu ment that mere putting questions by the sub-registrar would amount to giving and taking of the adoptive boy' but the subsequent dis cussion makes it clear that the Privy Council had not laid down any such wide proposi tion. Their Lordships proceeded to observe: "even if the suggestion be accepted that the auspicious day ended at noon on the 30th and that the deed was executed before noon and before the boy arrived at Ajmer, it seems quite probable that the registration proceedings which were arranged for 6 p. m. would be regarded as a suitable occasion for carrying out the very simple ceremony that was necessary. "these observations indicate that on the material placed before the Privy Council it is not necessary to say that we would come to the same conclusion on the same material' it held that the was giving and taking of the boy at about 6 p. m. when the judicial committee, in our view, did not in tend to depart from the well recognized doctrine of Hindu Law that there should be a ceremony of giving and taking to validate an adoption. Para-10 : The law may be briefly stated thus : Under the Hindu Law, whether among the regenerate caste or among Sudras, there cannot be a valid adoption unless the adop tive boy is transferred from one family to another and that can be done only by the ceremony of giving and taking. The object of the corporeal giving and receiving in adop tion is obviously to secure due publicity. To achieve this object, it is essential to have a formal ceremony. No particular form is prescribed for the ceremony, but the law re quired that the natural parent shall hand over the adoptive boy and the adoptive parent shall receive him. The nature of the ceremony may vary depending upon the cir cumstances of the case. But a ceremony there shall be part of the exigencies of the situation arising out of diverse circumstan ces necessitated to the introduction of the doctrine of delegation and therefore, the parents, after exercising their volition to give and take the boy in adoption, may both or either of them delegate the physical act of handing over the boy or receiving him, as the case may be, to a third party. ";