- (1.) THIS is a defendants' second appeal in a suit for cancellation of sale-deed and possession of a house situated in Chhab-ada.
(2.) THE following genealogical table will show the relationship of the respondents and one Smt. Narayani, daughter of Parma, who transferred the suit house for a consideration of Rs. 400/- under a registered sale-deed dated March 9, 1959 in favour of the appellants :- Continue. . . . . Next Page Ganesh I Nennha II Parma I Bhawana II Narayan III Deva (Went in adoption to Parma) Mangi Lal (died mior) Deva (adoption son) Smt. Narayani (daughter) I Lalji (Plaintiff No. 1) II Panna (Defendant No. 3) III Chattru (Plaintiff No. 2) IV Amara (Plaintiff No. 3) Mangilal while he was a minor pre-deceased his father. Parma Parma had one daughter Smt. Narayani but she went in marriage to one Dhuliya of village Nahargarh, but Narayani became widow after a few years and a few years prior to the filing of the suit she started living with Deva. Parma had taken in adoption Deva, the youngest son of Nena about 45 years prior to the riling of the suit which was filed on March 16,1961. The said Deva was already married and was aged about 22 to 25 years at the time of alleged adoption, which is said to have taken place in accordance with the custom and usage of 'khatteeks' community. At the time of alleged adoption of Deva by Parma there were two sons Lalji and Panna and they continued to live in the family of Nennha, natural father of Deva. After the alleged adoption two more sons were born to Deva, namely, Chattru and Amara. Smt. Narayani widowed daughter of Parma transferred the suit house situated in Chhabada to Behru Lal and Jailal, appellants, under a registered sale-deed dated March 9, 1959 for a consideration of Rs. 400/ -. The three sons of Deva, namely, Lalji, Chattru and Amara filed a suit againat the appellants and Panna in the Court of Munsiff. Baran on March 16, 1961 for declaring the sale-deed as void and for possession of the house transferred under it. The suit was filed on the ground that amongst the community of 'khatteeks' there was a custom of adopting a married person and Deva had been adopted as a son by Parma, his real uncle, about 45 years prior to the filing of the suit. After the adoption Deva lived with Parma and as such is the owner of the suit house and Smt. Narayani had no right to transfer it. The suit was contested by the appellants, though Panna, the brother of Chattra and Amara, admitted all the allegations of the plaint. The contesting defendants, namely, the appellants did not admit that Parma had adopted Deva and that there was a custom in the community of 'khatteeks' to adopt a married person. On the pleadings of the parties the learned trial Court framed issues which when literally translated in English will read as follows : 1. Whether Parma had taken Deva in adoption? 1a. Whether amongst the community of 'khateeks' to which the parties belong, there is a custom to take a person who is married and has children in adoption. If so what shall be its effect on the suit ? 2. Whether the sale-deed, referred to in para 8 of the plaint is fictitious unauthorised and liable to be set aside? 3. Whether the suit is within limitation? 4. Relief? The learned Munsiff, Baran by his judgment and decree dated December 14, 1964 decreed the suit of the respondents, Chattra and Amara in part to the effect that the sale-deed executed by Smt. Narayani on March, 16, 1959 is null and void against these respondents and Chattaru and Amara are entitled for joint possession over the suit house. An appeal was filed by the appellants in the Court of Senior Civil Judge, Baran and Chattara and Amara also filed cross objections. The learned Senior Civil Judge, Baran, under his judgment and decree dated December 21, 1967 dismissed the appeal of the appellants but the cross objections were allowed. Consequently the suit of Chattara and Amara to the full extent was decreed and the sale-deed executed by Smt. Narayani Devi was set aside. The appellants were also directed to hand-over the possession of the suit house to the plaintiffs, Chattara and Amara.
(3.) I have heard the learned counsel for the parties and have perused the record of the case. The only contention of the learned counsel for the appellants is that the instances of the alleged adoption of a married male having children in the community of 'khatteeks' were of recent origin and not a single instance of the period when the adoption of Deva is alleged to have taken place, has been proved and, therefore, the various instances do not go to prove a custom in the community of 'khatteeks' 45 years prior to the filing of the suit when Deva was adopted. In short his submission is that proof of custom within a period of 20 or 25 years does not prove a custom prior to it as the evidence of custom will not relate back. The contention of Mr. Rastogi, the learned counsel for the respondents, on the other hand, is that before a custom can be relied upon it must be ancient, certain and reasonable and the proof of existence of a custom for a period of 20 to 25 years will be sufficient to prove that it was ancient and, therefore, the existence of such a custom will be held proved by the Courts even before the period for which the evidence has been brought on record. He further submits that under Section 114 Illustration (d) of the Law of Evidence the Court, in the facts and circumstances of a particular case, may raise a presumption backward and not only forward that a thing or state of things which has been shown to be in existence within a certain period was in existence. ;