RANJIT SINGH,J. - (1.) APPELLANT has claimed right and title to the property being an adopted son. He remained unsuccessful in suit which he filed and in the first appeal and thus has challenged both the verdicts by filing the present Regular Second Appeal.
(2.) THE dispute goes to pre-partition era and present appeal is pending since 1982. Even the appellant-plaintiff is no more and stands substituted by his L.Rs. Similarly some of the respondents also stand substituted by their L.Rs. on their death and this is so reflected in the amendments carried out in the memo of parties from time to time. Even now, one application is pending adjudication whereby prayer has been made for impleading Gursharan Kaur as respondent No.18 under Order 1 Rule 10 CPC. This application was filed once the arguments in the case were heard and the judgment reserved. The applicant claims herself to be legal heir of Sham Kaur wife of Ganda Singh, whose property is in issue in the present appeal. It is not made clear in the application as to how the applicant has woken to be heard now and where she has remained though suit was filed in the year 1976 and decided in 1979. This application accordingly has been opposed by the respondents and the same shall be dealt with after making reference to the controversy that requires adjudication in the present case. The facts in this case as noticed are that Shamsher Singh (appellant- plaintiff) instituted a suit for declaration to the effect that he is owner in possession of the land as described in the heading of the plaint and for further declaration that he is owner of the equity of redemption regarding land as separately detailed in the heading of the plaint being Khata No.35/35 and Khasra number as mentioned and entered in jamabandi for the year 1973-74, situated in the area of village Sukhgarh, Hadbast No.89, Tehsil Kharar. In the alternative, appellant-plaintiff also has claimed possession of the land in suit. This land originally belongs to Ganda Singh son of Nihal Singh of village Sukhgarh. Appellant-plaintiff is son of Karam Kaur daughter of Harnam Singh, who was collaterally related to Ganda Singh. After the death of Harnam Singh, the property owned by him was inherited by his real brother Amar Singh. Amar Singh died issueless as he was not married and thus property owned by Amar Singh was inherited by Ganda Singh as he was the only surviving cousin of Amar Singh. Ganda Singh died in the year 1948, leaving behind his wife Sham Kaur and allegedly his adopted son Shamsher Singh (plaintiffappellant). Ganda Singh was a Jat agriculturist and thus was governed by the customs in the matters of succession and adoption. The averment in the suit further is that after the marriage of Karam Kaur with the appellant-plaintiff''s father, she lived with Ganda Singh and gave birth to two children, i.e., the appellant- plaintiff and his younger brother Shivdev Singh. Ganda Singh was also issueless and thus it is claimed that soon after the birth of appellant- plaintiff, he had adopted the plaintiff as his son under the custom after performing the requisite ceremonies. It is claimed that this adoption was performed in the collection of brotherhood where 'Gur' (Jaggery) was distributed and the appellant-plaintiff was taken in lap by Ganda Singh. Ever since that date, appellant-plaintiff claims to have lived with Ganda Singh and was treated as his son and the appellant had been treating Ganda Singh as his father. It is also mentioned that Sham Kaur wife of Ganda Singh has also been treating the appellant as her son. Appellant also claims to have been brought up, educated and married by his adopted father Ganda Singh. The case further is that after the death of Ganda Singh, he alone was entitled to succeed his property being his adopted son, but to gain the confidence of his adopted mother, he allowed the mutation to be sanctioned in favour of Sham Kaur, widow of Ganda Singh and adopted mother of appellant-plaintiff. The mutation was sanctioned in the names of Sham Kaur and Shamsher Singh in equal share. Appellant Shamsher Singh had also acted as Lambardar for some time and states to have been acknowledged as the adopted son by Sham Kaur. He continued to live with his adopted mother and enjoyed the property jointly with her. Appellant then claims that six years prior to filing of suit, Sham Kaur died. He continued to be in possession of the property but Basant Kaur and Baljit Kaur mothers of defendants No. 1 to 4 and 5 and 5-A respectively in collusion with revenue authorities got the mutation of land sanctioned in their favour bye-passing the appellant. He, thus, claims that the property was wrongly mutated in favour of Basant Kaur and Baljit Kaur daughters of Harnam Singh as he being adopted son was entitled to inherit the property after the death of Sham Kaur. Appellant would further claims that Sham Kaur was not the owner of the suit property and was merely a trustee 'Benamidar' for the appellant- plaintiff, whereas the legal and beneficial (equitable ownership) vested in the appellantplaintiff. Appellant has also claimed that he is managing the property left by Sham Kaur, his adopted mother and is in cultivating possession thereof. It is stated that the mutation sanctioned in favour of defendants No. 1 to 5-A vide mutation No.1064 dated 19.8.1971 is without any right and authority and as such is altogether illegal. It is on the basis of this mutation that the defendants are threatening the appellant-plaintiff to take forcible possession of the suit land for which they do not have any right to interfere in the peaceful possession of the appellant-plaintiff. He has thus claimed declaration of ownership regarding the land in his possession. As regards the land which is in possession of the mortgagees, the appellant- plaintiff has claimed declaration that he is the owner of equity of redemption and in alternative he has claimed possession of the said suit land as well. In short, the claim of the appellant-plaintiff is based on the fact that he is the adopted son of Ganda Singh and Sham Kaur and thus is entitled to the ownership and possession of the land to the exclusion of Basant Kaur and Baljit Kaur daughters of Harnam Singh.
(3.) THE suit was resisted by the defendants, who are the offspring of Basant Kaur and Baljit Kaur. As per the defendants, the suit land was never owned or possessed by Ganda Singh. They also denied if the appellant-plaintiff was ever adopted by Ganda Singh as his son. It is claimed that he never became the adopted son of Ganda Singh and Sham Kaur. The respondents would plead that the appellant-plaintiff was never brought up, educated or married by Ganda Singh and was never treated as son by Ganda Singh and iSham Kaur. In their reply, the respondents would point out that the appellant-plaintiff is recorded as son of Gurbachan Singh in the school records and so too in the voters list and in the records of the Army service, where he had remained from the year 1939 to 1941. The respondent-defendants would also point out that the appellant had raised a loan from the Co-operative Society, Sukhgarh describing himself as son of Gurbachan Singh. It is claimed that even Gurbachan Singh, the father of the appellant, has also denied the alleged adoption. The deed of adoption which was pressed into service, though not exhibited, is stated to be paper transaction besides urging that appellant-plaintiff was never adopted nor treated as such before or after the alleged deed of adoption which was also destroyed by Ganda Singh. Explaining the mutation of the land in favour of appellant, it is stated that the same was wrongly sanctioned in his favour and presence of Sham Kaur was also wrongly recorded. It is also mentioned that Sham Kaur never made any statement conceding to the adoption and rather had hotly contested the alleged adoption before a civil court in a suit filed by the appellant-plaintiff on 14.10.1958, which was dismissed on 16.12.1959. This suit was filed by the appellant claiming possession of the land belonging to Ganda Singh being his adopted son. Sham Kaur had denied the adoption as alleged by the appellant-plaintiff in the said suit of which she statedly was enjoying the exclusive possession even to the exclusion of the appellant- plaintiff. It is further disclosed in the reply that Sham Kaur had died much prior to six years of the institution of the present civil suit. Accordingly, the ownership of the appellant and his possession over the suit land is denied by the respondent-defendants. According to the respondents, mutation was sanctioned in favour of Sham Kaur, she being the only heir of Ganda Singh, which was never contested by appellant-plaintiff. He also did not even make a claim before the Rehabilitation Authorities for allotment of a land belonging to Ganda Singh and left in Pakistan. It is, thus, claimed that mutation of inheritance of Sham Kaur was rightly sanctioned in favour of Basant Kaur, (mother of defendants No.1 to 4 and Balbir Kaur (mother of defendants No.5 and 5-A).;