BHARPAI Vs. SUDHAN SINGH AND ANOTHER

JUDGEMENT

(1.) THIS is defendant's regular second appeal from the judgment and decree of the Additional District Judge affirming that of the trial Court decreeing plaintiff's suit.

(2.) THE facts giving rise to this suit are that Raimji Lal was the owner of the land in suit and the plaintiff was his sister's son. He had executed a registered deed of adoption on 21st of August, 1953 (Exhibit P/1) appointing the plaintiff as his heir, he himself being issueless. Before the Naib Tehsildar at the time of mutation, Ramji Lal stated on 8th of June, 1944, that he had adopted his sister's son Sudhan Singh as his heir and desired the mutation of adoption to be recorded but Teja Ram, Lambardar, had raised an objection that the plaintiff had not lived in the village and on this, the case was adjourned for decision in the presence of Sudhan Singh, plaintiff. The final order was passed on 13th of September, 1946, more than three years after the execution of the registered deed of adoption. At that time, Ramji Lal had stated that the plaintiff was not serving him and, therefore, he was not adopting him. The Revenue Officer rejected the application for mutation of adoption. The plaintiff alleged that Ramji Lal had died six years prior to the filing of the suit and he was the only successor left behind. The defendants were inimically disposed towards the plaintiff and on the death of Ramji Lal, they had got mutation sanctioned in favour of Jita Ram who had also died sometime prior to the institution of the suit. The plaintiff contended that this Jita Ram was the son of Laje Ram and Laje Ram's wife Mst. Bharpai, defendant NO. 1. He contended that Ramji Lal left no widow As the defendants were alleged to be in illegal and forcible possession of the land, the plaintiff had instituted the suit for its possession.

(3.) I may first take up the question of the factum of adoption covered by the first issue The adoption is in the nature of appointment of heir under customary law and is evidenced by a registered deed It was urged by the Learned Counsel for the defendant that the adoption was not valid by a subsequent treatment by Ramji Lal of the plaintiff as his adopted son, he having repudiated the act of adoption. The decision of the Supreme Court in Inder Singh v. Gurdiat Singh : (1962) 1 S.C.R. 845, was cited for the proposition that a mere declaration or even the execution of a deed of adoption unaccompanied by precedent or subsequent treatment as son was insufficient for proving valid adoption. Where there was no evidence of treatment of the appellant by the adopter as his son and on the contrary there was evidence to show that the adopter had repudiated the declaration that he had made earlier, the appellant could not be deemed to have been validly adopted. It was further urged that the plaintiff at the time of his adoption was the only son of his parents and he could not, therefore, be adopted though it was true that ha had brothers and sisters who were born subsequent to his adoption.