S.K.Phaujdar - (1.) THE present appellant filed a Suit No. 541 of 1992 against the present respondents for a declaration that he was the adopted son of one Banshi Dhar and was living with him. Banshi Dhar was a tenant in respect of the shop and house in question. On the death of Banshi Dhar, the plaintiff claimed to have become the tenant in respect of the house and shop and he made a prayer that his possession as a tenant is not to be disturbed by the respondents and the house may not be deemed vacant under the provisions of Sections 12 and 16 of the U. P. Act No. 13 of 1972. It was also alleged that the adoption was taken in 1966 and a paper was written and registered in 1981. THE plaintiff indicated that he was born in the year 1954. THE defendants included the daughters of Banshi Dhar and others. It was contended on behalf of the contesting defendants that there was no adoption as claimed and the suit was not maintainable in the Civil Court.
(2.) THE trial court (Ist Addl. Civil Judge, Sr. Div., Bulandshahr) decreed the suit on 30.1.1996. An appeal was preferred by one of the contesting defendants, which was numbered as Civil Appeal No. 22 of 1996, and it was allowed by the District Judge, Bulandshahr, on 17.7.1996, mainly on two grounds. It was held that the plaintiff could not prove adoption at all and it was further held that a declaration that the suit-property was or was not to be deemed vacant, is to be made by the District Magistrate and not by the Civil Court under the provisions of the U. P. Act No. 13 of 1972. In the appeal, the learned counsel for the appellant and the learned counsel for the respondent caveator were both heard. On the question whether the Civil Court had a jurisdiction to take up the matter, reference may be made to the relevant provisions of the U. P. Act No. 13 of 1972. Section 12 of the Act defines when a building or part thereof will be deemed vacant. One of the conditions is that the house is allowed to be occupied by a person who is not a member of the family of the tenant. Section 12 (4) says that any building or a part which a landlord or tenant has ceased to occupy within the meaning of subsections (1), (2), (3), (3A) and (3B) shall, for the purpose of this Chapter, be deemed vacant. The condition as mentioned above that the tenant has allowed it to be occupied by a person who is not a member of his family is covered by subsection (1). Section 15 makes it obligatory for every landlord to give notice of vacancy in writing to the District Magistrate. The caveator (landlord) informed this Court that such an information was given to the District Magistrate on the death of Banshi Dhar as he had allowed Hari Om and his son, Jai Prakash, to live in the house who were not his family members. Section 16 requires the District Magistrate to determine if really the building would be deemed vacant. For that purpose, the District Magistrate is bound to give an opportunity to the landlord or the tenant of showing that Section 12 or any provision thereunder was not attracted to his case, only thereafter the District Magistrate would record an order for allotting any vacant house to any person. Section 37 of this Act states that when an order is made in exercise of power conferred under this Act, it shall not be called in action in any court. A composite reading of these sections clearly indicates that the power to determine if a house would be deemed vacant under the provisions of Section 12 of the U. P. Act No. 13 of 1972 lies with the District Magistrate and his orders in this respect are not to be challenged in civil court. This suggests that the civil court will be incompetent to decide the question which should be decided by the District Magistrate. The first ground for acceptance of the appeal by the first appellate court, therefore, appears to be a correct one. Second aspect on which the first appeal was accepted was that the factum of adoption was not accepted. The alleged adoption took place in 1966. The document accepting the adoption was made in 1981. If the adoption was created by the document, then certainly it was an invalid adoption because by that time, the plaintiff (adoptee) was 27 years old and no adoption was permissible where the adoptee is more than 15. If the adoption was of 1966 as alleged, there is no reason why it was not recorded forthwith. Moreover, materials are there which have been relied upon by the first appellate court, to show that even after the alleged adoption in 1966, the adoptee had not severed his relationship with Hari Om, the man through whom he was born. It is there in the findings of the first appellate court, on the basis of the evidence, that in his school-register and other documents, and even in he voters' list upto the year 1987, the plaintiff was recorded as son of Hari Om and not as son of Banshi Dhar. The learned counsel proposed to rely on Section 16 of the Adoptions and Maintenance Act. Under this section, a presumption is attached to registered documents relating to adoption. The section, however, indicates that this presumption is to be made unless and until it is disproved. In other words, it is a rebuttable presumption. This rebuttal may come from other evidence including the conduct of the adoptee. Materials being there that Jai Prakash did describe himself as son of Hari Om goes to rebut the presumption that he was adopted by Banshi Dhar through the paper registered in 1981.
(3.) THERE is yet another aspect as rightly discussed by the first appellate court that any document regarding an adoption is to be signed by the persons taking and giving the child in adoption. The paper that has been proved is an unilateral declaration by Banshidhar, showing his action of adopting Jai Prakash without any statement by Hari Om that he was giving Jai Prakash in adoption. It is true, as pointed out by the appellant, that Hari Om had signed on the paper. This signature was made not as the party giving the child in adoption, but as a witness simpliciter. The paper does not indicate how and why adoption was taken, whether it was given by both the biological parents of the adoptee son and in whose presence. The first appellate court has rightly refused to take cognizance of the paper of adoption. A case, law was relied upon by the appellant to support his contention that mere absence of examination of the wife of Hari Om would not vitiate the trial. Reliance was placed on the decision in AIR 1994 AP 102. The facts of the present case differed totally from that of the case under reference. Here also the mother of Jai Prakash was not examined but the adoption was disbelieved not only on that ground but for other cogent reasons. Reliance was also placed on the decision of the Supreme Court, in AIR 1996 SC 591. Here also other evidence was there in support of adoption and only the absence of the adoptive mother was not thought crucial. But in the case at our hand, the adoption was not proved at all and even the examination of the mother would not have improved the situation. The other party relied on decision of the Orissa High Court in AIR 1996 Ori 38. It was also a case of adoption. There was no proof of the fact of giving and taking, but reliance was sought to be placed on the deed of adoption. The deed did not indicate any date of adoption. The plea of adoption was rejected. On facts, this case tallies with the case at our hand. Here also the document did not indicate any date of adoption. There was no proof of actual giving and taking and there was no wrong, therefore, on the part of the first appellate court in not acting upon the theory of adoption.;