Vineet Kothari, J. - (1.) THE appellant/plaintiff, Smt. Badami W/o. late Sh. Ramlal Jat, through her legal heir Nathulal S/o. Badrilal, who lost the legal battle before the two courts below has preferred this second appeal under Section 100 of Code of Civil Procedure, 1908, impugning the judgment and decree of the first appellate court i.e. Addl. District Judge No. 1, Bhilwara dated 21st November, 2006, dismissing appellant/plaintiffs appeal (Civil Appeal No. 65/2004 - Badami Vs. Mahadev), and upholding the judgment and decree dated 16th September, 2004 passed by learned trial court i.e. Civil Judge (Sr. Division), Gangapur, District: Bhilwara, whereby the suit filed by the appellant/plaintiff for seeking cancellation of Adoption -Deed dated 04.04.1994 (registered on 05.04.1994), was rejected.
(2.) BRIEFLY stated, the facts of the case are that the appellant -Mst. Badami, filed a suit seeking cancellation of registered adoption deed executed by herself in favour of respondent/defendant, Mahadev. According the plaintiff, her husband, late Sh. Ramlal Jat, expired 40 years back. The plaintiff owns a residential house and agricultural land in village Sargaon and Laxmipura and enjoying the possession over the same. The defendant is the son of her husband's brother, namely, Dayaram. Looking to old age of plaintiff, she allowed the defendant to cultivate the land, who in turn assured her to make (Permission/authorization letter to cultivate the agricultural land) in writing for cultivation. The defendant also assured that the agricultural land will be given on "Kasht" to other persons and the plaintiff will be given her share in the crops. The plaintiff being an illiterate lady could not understand the cleverness of the defendant and gave her consent for . On 04.04.1994 while taking the advantage of old age and illiteracy, the defendant got executed an adoption deed and get it registered at Gangapur tehsil on 05.04.1994 while making it to reveal to the plaintiff the same is . Thereafter, after one year the defendant filed a suit for declaration of "Khatedari" and injunction in the court of Assistant Collector, Gangapur and upon filing such suit, the plaintiff came to know about execution of such a forged adoption -deed and she filed a complaint on 05.08.1995 before the Judicial Magistrate, Gangapur, which was sent to for investigation, however, she had no knowledge about the investigation being carried out in the same. According to plaintiff, the adoption deed has been executed while keeping the plaintiff in dark and the rituals of adoption were also never performed for such alleged adoption. Thus by filing the present suit, the plaintiff prayed for cancellation of the said registered adoption deed dated 05.04.1994. Upon receipt of the summons, the defendant/respondent, Mahadev filed a written statement while refuting the averments made in the plaint. The defendant in the written statement averred that he and plaintiff both are in possession of the suit property of late Sh. Ramlal Jat. The defendant, Mahadev, stated that he was taken in adoption by Mst. Badami herself consciously and no forgery was committed by him. The plaintiff on her free will and volition had adopted him on 04.04.1994 and the adoption deed was registered on 05.04.1994. Upon the death of Sh. Ramlal Jat (husband of the plaintiff) the last ceremonies were performed by the defendant, Mahadev only, as per custom prevailing in their community.
(3.) THE learned trial court as per pleadings of the parties proceeded to frame three issues including relief, which are quoted herein below: - 1. Whether the plaintiff is entitled to seek cancellation of the alleged adoption deed which was written on 04.04.1994, which was registered on 05.04.1994 in the office of Sub -Registrar, Sahada? 2. Whether the defendant is the adopted son of the plaintiff? 3. Relief?;