- (1.) THIS second appeal has been filed against the judgment and decree dated 13.12.2007 passed by the Additional District Judge No.2, Alwar in Regular First Appeal No.3/2005 whereby learned first appellate court dismissed the appeal of the plaintiff by confirming the the judgment and decree dated 19.10.2004 passed by the Additional Civil Judge (Junior Division) No.1, Alwar in Civil Suit No.249/1998.
(2.) BRIEFLY stated, the facts for the disposal of the present second appeal are that the plaintiff-appellant filed a suit for mandatory injunction against the respondents in the court of Additional Civil Judge (Junior Division) No.1, Alwar. It was alleged in the suit that one Radhey Shyam was employed on the post of Teacher in Gram Khanpura Panchayat Samiti, Thanagaji who died on 29.8.1987 while in service. It was also averred that the plaintiff being nephew of deceased Radhey Shyam, he was adopted by widow of Radhey Shyam and was entitled to get appointment on compassionate ground. It was also alleged that a request was made by him in this regard but the respondents did not accede to his request and a suit was filed with the prayer to grant mandatory injunction in favour of the appellant and against the respondents to the effect that they be directed to give appointment in place of his father Radhey Shyam as he is adopted son of deceased. It appears that initially when the case was tried against the respondents, proceedings were drawn exparte and the suit was decreed and on preferring an appeal, the learned appellate court remitted the matter back to the trial court vide its judgment and decree dated 24.7.2002. After remand of the case the respondents filed written statement. The trial court on the basis of pleadings of the parties framed two issues. Both the parties tendered some documents in evidence. The learned trial court after hearing final submissions dismissed the suit vide its judgment and decree dated 19.10.2004 against which the appellant preferred a regular appeal which was dismissed by the appellate court vide its judgment and decree dated 13.12.2007. Hence, the present second appeal has been filed. I have heard learned counsel for the appellant. It has been contended by the learned counsel that the learned courts below have misread the evidence, therefore, the findings recorded by the trial court being perverse in nature be set aside and the suit is liable to be decreed. It is also contended that the trial court acceded its jurisdiction beyond the directions given by the learned appellate court while remitting the case back to the trial court. It is contended that the plaintiff-appellant was entitled to get the job on compassionate ground under the Rajasthan Recruitment of Dependents of Government Servants (Dying while in Service) Rules, 1975. I have carefully considered the submissions made before me. In the present matter, the following questions require consideration. (i) Whether the learned trial court has committed illegality in dismissing the suit? (ii) Whether the learned trial court as well as appellate court have not properly appreciated the evidence available on record, therefore, the judgments of the learned courts below require to be set aside and the suit is liable to be decreed? The above questions are inter-related, as such they are being decided together. It is to be seen that the learned appellate court at the initial stage decided the matter and allowed the parties to lead their evidence because earlier the suit was decided exparte. There is no difficulty in reaching to the conclusion that on previous occasion the complete evidence was not available on record, therefore, to submit that once a finding in relation to adoption was recorded by the trial court in favour of the plaintiff appellant, it was not liable to be reversed. I do not find any substance in the contention of the learned counsel for the simple reason that for proving adoption, it should be proved that the person who has been taken in adoption is not of more than 15 years of age. It has also been the contention of the learned counsel that in custom of the plaintiffs, a person older than 15 years of age can also be adopted but then the learned trial court while discussing the evidence has come to the conclusion that no such customery evidence has been brought on record and also that in the life time, Radhey Shyam did not adopt the plaintiff as his son. The learned trial court has further found that it has been admitted in the evidence of the plaintiffs that no giving and taking ceremony had taken place. The learned trial court has made detailed discussions in this regard, therefore, I do not find any substance in the contention of the learned counsel that after remand, the learned trial court committed illegality in reversing the finding on issue which was decided earlier in favour of the plaintiff-appellant. Section 12 of the Adoption Act, 1956 is relevant which states the effect of adoption. A perusal thereof indicates an adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family.
(3.) IF that is so, Radhey Shyam died and thereafter his wife, as alleged by the plaintiff, adopted the plaintiff and to say that he is entitled to get all the benefits under the Dependent Rules of 1975 is not liable to be accepted. In the evidence, the mother of the plaintiff has accepted that no giving and taking ceremony was completed. It further appears that the plaintiff was of more than 15 years of age, therefore, his adoption was also not valid. It also appears from the evidence led by the parties in the suit that Radhey Shyam died on 29.8.1987 and at that time plaintiff was not in his adoption and the plaintiff-appellant applied for the first time in the year 1998. Thus, it appears that for appointment, application was made after one year, that was also belated. In the case of Smt. Mehtab Vs. State of Rajasthan&ors.- 2001(2) RLW (Raj.) 731, it has been held that the widow of the government employee adopted somebody after the death of her husband, the person in adoption cannot be considered to be dependent of the government employee while he was in service. The findings recorded by the trial court and subsequently confirmed by the appellate court are reasonable, just and proper. There does not appear any misreading or mis-appreciation of evidence, therefore, no substantial question of law is involved in this case. The answer to the questions framed is that the trial court has correctly decreed the suit and the learned appellate court did not make any illegality either in appreciating the evidence and in dismissing the appeal. The appeal is liable to be dismissed. ;