Jharkhand High Court
Mukund Singh vs Karuna Singh on 28 July, 2022
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
Second Appeal No. 72 of 2010
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No.72 of 2010
(Against the Judgment dated 01.02.2010 passed by the learned 1st Additional
District Judge, Deoghar in Title Appeal No.18 of 2000)
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1. Mukund Singh
2. Badri Singh Both sons of Late Nundhan Singh.
All are resident of Bhabhangama, P.O. & P.S.- Sarath, Sub Division-
Madhupur, Dist. Deoghar
.... .... .... Appellants
Versus
1. Karuna Singh, S/o Late Shilajit Singh
2 (a). Naresh Singh, s/o Late Bachi Devi
2 (b) Kamakhya Narayan Singh, s/o Late Bachi Devi 2 (a) & 2 (b) both R/o Babhangama, P.O.- Babhangama & P.S.- Sarath, Sub Division- Madhupur, Dist. Deoghar
3. Ramesh Chandra Singh, s/o Karuna Singh 4 (a). Anar Devi w/o late Lalani Prasad Singh, daughter-in-law of Bindeshwari Singh 4 (b)Keshav Kumar Singh, S/o late Lalani Prasad Singh 4 (c)Mithilesh Kumar Singh, s/o late Lalani Prasad Singh 4 (a) to 4 (c) are r/o Village P.O. Babhangama 4 (d) Rambha Devi w/o of Birendra Prasad Roy, D/o of late Lalani Prasad Singh, r/o village Purangadia, P.O.- Chatro, P.S. Deori, Dist. Giridih 4 (e) Rajesh Kumar Singh, s/o Bindeshwari Singh, r/o Babhangama, P.O. & P.S.- Sarath, Dist. Deoghar 4 (f) Anar Devi, w/o Sudama Ray, D/o late Bindeshwari Singh, r/o Vill- Kodaney, P.O & P.S. Chakai Dist. Jamui 4 (g) Geeta Devi w/o Braj Kishore Singh, D/o Late Bindeshwari Singh, R/o Vill. Lipta, P.O. Narayanpur, P.S. Pratappur, Dist. Chatra 5 (a) Ujjawal Kant s/o late Sunita Devi 5 (b) Rahul Ranjan s/o late Sunita Devi 5 (a) to 5 (b) are r/o Vill- Barkipona via- Chitarpur, P.O. & P.S. Barkipona, Dist. Hazaribag
6. Dhurendra Singh s/o Late Tirath Nath Singh
7. Mrs. Madhusudan Singh, w/o late Madhusudan Singh
8. Munni Devi , D/o Madhusudan Sing All resident of Bhabhangama, P.O. & P.S.- Sarath, Sub Division- Madhupur, Dist. Deoghar ... .... .... Respondents
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For the Appellants : Mr. Indrajit Sinha, Advocate : Mr. Ankit Vishal, Advocate For the Respondents : Mr. Arvind Kr. Choudhary, Advocate : Mrs. Seema Kashyap, Advocate 1 Second Appeal No. 72 of 2010
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PRESENT HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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By the Court:- Heard the parties.
2. This second appeal has been preferred under Section 100 of Code of Civil Procedure against the concurrent judgment and decree of dismissal dated 01.02.2010 passed by the learned 1st Additional District Judge, Deoghar in Title Appeal No.18 of 2000 whereby and whereunder, the learned first appellate court dismissed the appeal and held that the there is no need to interfere with the impugned judgment and decree of dismissal of Title Suit No.74 of 1995 dated 29.02.2000 passed by the Sub-Judge-II, Deoghar.
3. The brief facts of the case is that the plaintiffs who are the appellants herein filed by Title Suit No.74 of 1995 with a prayer for cancellation of two deeds of adoption first being number 241 dated 03.07.1967 and the second being number 152 dated 17.05.1957 and for declaring that the same were not executed by Late Mukteshwari Debya and she had not taken the defendant nos.3 and 5 in adoption and that the said two deeds were null and void. The plaintiffs further sought permanent injunction restraining the defendant nos.1 to 3 from going over the estate of late Mukteshwari Debya till the disposal of the suit, cost of the suit and other reliefs. The plaintiff-appellants contention is mainly based on the plaint of Title Suit No.54 of 1993 and the deposition of Mukteshwari Debya recorded in that Title Suit No.54 of 1993. The plaintiffs sought the relief on the ground that the said two deeds were obtained by fraud and misrepresentation. 2 Second Appeal No. 72 of 2010
4. The case of the defendants is that the defendant no.3 and 5 were validly adopted by Mukteshwari Debya who was issueless.
5. The learned trial court on the basis of rival pleadings settled the following seven issues :-
(i) Is the suit as framed maintainable? (ii) Has the plaintiff got valid cause of action? (iii) Is the suit barred by limitation? (iv) Whether the plaintiffs have got the right to file the suit? (v) Whether the plaintiffs are the legal heirs, successors or legal
representative of the deceased and as such actually entitled to the estate of late Mukteshwari Debya?
(vi) Whether the two adoption deeds bearing number as 241 dated 03.07.67 and 152 dated 17.5.75 are vitiated on account of fraud and misrepresentation and is there absence of actual giving and taking or whether the aforesaid two deeds are legal and valid?
(vii) To what other relief or reliefs the plaintiffs are entitled for?
6. The learned trial court after considering the oral testimony of 16 witnesses examined by the plaintiffs and the documents which were marked Ext. 1 to 18 as well as deposition of 8 witnesses examined by the defendant 1st set and the documents brought on record by way of evidence by the defendant 1st set being Ext. A to R and the 16 witnesses examined by the defendant 2nd set and documents which were marked Ext. F to W, came to the conclusion, in respect of issue no. (vi) that the two adoption deeds are not 3 Second Appeal No. 72 of 2010 vitiated on the ground of fraud and misrepresentation and there is actual giving and taking of the adopted persons by the adoptee and held that the two registered deeds of adoption are lawful, valid and decided the said issue against the plaintiffs and in favour of the defendants. Thereafter, the learned trial court took up issue nos. (v) and (iv) together and after considering the evidence in the record came to the finding that the plaintiffs are not entitled to the estate of the deceased Mukteshwari Debya and they have no right, title to file the suit and decided the issue nos. (v) and (iv) against the plaintiffs. In respect of issue no. (iii), the learned trial court came to the conclusion that as from Ext. J, S, T and U it was found that there were litigations before the S.D.O., Deputy Commissioner and Commissioner and the plaintiff no.3 was a party to the proceeding and both the adoption deeds were discussed in such proceeding so, the plaintiff no.3 cannot deny about his knowledge of the adoption deeds in the year 1978 and as the suit was filed in 1995, so the suit was barred by limitation and went on to hold that the suit is not maintainable and the plaintiffs have got no valid cause of action and that the plaintiffs are not entitled to any reliefs and dismissed the suit.
7. Being aggrieved by the said judgment and decree passed by the learned trial court being the court of Sub-Judge-II, Deoghar in Title Suit No.74 of 1995 dated 29.02.2000, the plaintiff-appellants filed Title Appeal No.18 of 2000 dated 01.02.2010 in the court of District Judge, Deoghar and the same was ultimately heard and disposed of 4 Second Appeal No. 72 of 2010 by the impugned judgment and decree passed by the learned 1st Additional District Judge, Deoghar.
8. The first appellate court framed the following two points for determination:-
(i) Whether the two adoption deeds were executed by Mukteshwari Debya and whether the adoption deeds are vitiated on account of fraud and misrepresentation?
(ii) Whether the actual giving and taking of Ramesh Chandra Singh and Sunita Kumari was performed for the adoption?
9. The learned first appellate court took up both the point for determination together and after inter alia considering that though the said Mukteshwari Debya used to sign normally on her deposition which is evident from the exhibits filed by the defendants in the record but in her deposition which was marked Ext. 8-basing upon which purported the position of Mukteshwari Debya, the plaintiffs were assailing the adoption of defendant number 3 and 5, the said Mukteshwari Debya has claimed to have put her left thumb impression without any explanation as to why she has not put the signature which she normally used to do and also considering the several anomalies which have been discussed in detail by the first appellate court in the impugned judgment, as also considering the presumption as to genuineness of a document registered as per the provision of section 16 of Hindu Adoption and Maintenance Act and also the fact that though the plaintiffs claimed the deeds of adoption to be null and void on the ground that the same were obtained to 5 Second Appeal No. 72 of 2010 practicing fraud and misrepresentation but none of the witnesses of the plaintiffs have deposed about any fraud or misrepresentation, the learned first appellate court disbelieved the Ext. 8 to be a deposition of Mukteshwari Debya and considering the evidence of the defence regarding the adoption of defendant no.3 and 5 by Mukteshwari Debya during her life time and also taking into consideration the documentary evidence put forth by the defendants regarding the educational certificate of the defendant nos.3 and 5 and other documents; came to the conclusion that the adoption deeds of Ramesh Chandra Singh and Sunita Kumari are valid documents and no fraud and misrepresentation were made and Mukteshwari Debya in good health adopted Ramesh Chandra Singh and Sunita Kumari both, in presence of her own father who was also the witness of the deeds of adoption of Ramesh Chandra Singh and dismissed the appeal.
10. Mr. Indrajit Sinha, learned counsel for the appellants assisted by the Mr. Ankit Vishal submits that the learned trial court failed to appreciate the evidence in the record in its proper perspective and the learned court below in view of Section 32 (5) of Indian Evidence Act ought to have held that Ext. 8 was a genuine document and on the basis of the same ought to have come to the conclusion that Mukteshwari Debya has not adopted the defendant nos.3 and 5. It is next submitted by Mr. Indrajit Sinha that presumption under Section 16 of Hindu Adoption and Maintenance Act, 1956 is a rebuttable presumption and in this respect, learned 6 Second Appeal No. 72 of 2010 counsel for the appellants relied upon the judgment of Hon'ble Supreme Court of India in the case of Jai Singh vs. Shakuntala reported in (2002) 3 SCC 634 and submits that though the evidence put forth by the plaintiffs is sufficient to rebut the presumption of genuineness of the deeds of adoption as envisaged under Section 16 of Hindu Adoption and Maintenance Act, 1956 but both the courts below have failed to appreciate the same. It is further submitted by the learned counsel for the appellants that in a second appeal can be entertained, in exceptional circumstances, on pure questions of facts and there is no prohibition for the High Court to entertain the second appeal on the question of fact where factual finding are found to be perverse and in this respect, learned counsel for the appellants relied upon the judgment of Hon'ble Supreme Court of India in the case of Rajasthan State Road Transport Corporation & Anr. vs. Bajrang Lal reported in (2014) 4 SCC 693, paragraph no.19 of which reads as under :-
"19. With all respect, we do not agree with such a conclusion reached by the High Court, as second appeal, in exceptional circumstances, can be entertained on pure questions of fact. There is no prohibition for the High Court to entertain the second appeal even on question of fact where factual findings are found to be perverse."
And in this respect, learned counsel for the appellants also relied upon the judgment of Hon'ble Supreme Court of India in the case of K.N. Nagarajappa & Ors. vs. H. Narasimha Reddy reported in 2021 SCC OnLine SC 694, paragraph no.16 and 18 of which reads as under :-
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"16. In the judgment reported as Municipal Committee, Hoshiarpur v. Punjab State Electricity Board, this court held as follows:
"26. Thus, it is evident that Section 103 CPC is not an exception to Section 100 CPC nor is it meant to supplant it, rather it is to serve the same purpose. Even while pressing Section 103 CPC in service, the High Court has to record a finding that it had to exercise such power, because it found that finding (s) of fact recorded by the court (s) below stood vitiated because of perversity. More so, such power can be exercised only in exceptional circumstances and with circumspection, where the core question involved in the case has not been decided by the court(s) below.
27. There is no prohibition on entertaining a second appeal even on a question of fact provided the court is satisfied that the findings of fact recorded by the courts below stood vitiated by non-consideration of relevant evidence or by showing an erroneous approach to the matter i.e. that the findings of fact are found to be perverse. But the High Court cannot interfere with the concurrent findings of fact in a routine and casual manner by substituting its subjective satisfaction in place of that of the lower courts. (Vide Jagdish Singh v. Natthu Singh [(1992) 1 SCC 647]; Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un-Niswan [(1999) 6 SCC 343] and Dinesh Kumar v. Yusuf Ali [(2010) 12 SCC 740].)
28. If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eye of the law. If the findings of the Court are based on no evidence or evidence which is thoroughly unreliable or evidence that suffers from the vice of procedural irregularity or the findings are such that no reasonable person would have arrived at those findings, then the findings may be said to be perverse. Further if the findings are either ipse dixit of the Court or based on conjecture and surmises, the judgment suffers from the additional infirmity of non- application of mind and thus, stands vitiated. (Vide Bharatha Matha v. R. Vijaya Renganathan [(2010) 11 SCC 483]"
18. ..... ....... ....... ......... Moreover, the High Court, in second appeal proceeded to examine the documents in light of the evidence led and corrected the findings as it were under Section 103. If the appellants' arguments were to prevail, the findings of fact based upon an entirely erroneous appreciation of facts and by overlooking material evidence 8 Second Appeal No. 72 of 2010 would necessarily have to remain and bind the parties, thereby causing injustice. It is precisely for such reasons that the High Courts are empowered to exercise limited factual review under Section 103 CPC. However, that such power could be exercised cannot be doubted. The impugned judgment does not expressly refer to that provision. In the circumstances of the case, it is evident that the High Court exercised the power in the light of that provision. Furthermore, we are also of the opinion that having regard to the overall circumstances, the impugned judgment does not call for interference in exercise of special leave jurisdiction (which is available to this Court - even at the stage of final hearing)."
11. It is further submitted that the learned first appellate court failed to take into consideration several anomalies and discrepancies in the two deeds of adoption and hence the impugned judgment and decree of both the courts below being not sustainable in law be set aside and the suit of the plaintiffs being Title Suit No.75 of 1995 be dismissed and both the adoption deeds by which the defendant nos.3 and 5 have been adopted by Mukteshwari Debya be declared null and void.
12. Mr. Arvind Kumar Choudhary, learned counsel for the respondents assisted by Mrs. Seema Kashyap on the other hand defended the impugned judgment and decree and submits that there is no quarrel regarding the settled principle of law that in exceptional circumstances when the finding of fact by the first appellate court is perverse, certainly, the High Court can interfere with the finding of fact by the first appellate court in exercise of its jurisdiction under Section 100 of Code of Civil Procedure but in this case the learned first appellate court for cogent reasons by proper appreciation of the 9 Second Appeal No. 72 of 2010 evidence in the record has come to the conclusion that the plaintiffs- appellants have to stand on their own legs and has to prove their own case has arrived at the conclusion that the plaintiffs-appellants have failed to do so and even the witnesses of the plaintiffs-appellants have not even uttered a word that the two deeds of adoption which were sought to be declared as null and void were obtained by fraud and misrepresentation on the very basis of which the plaintiffs- appellants sought the said declaration that the deeds be declared as null and void. Hence, it is submitted that by no stretch of imagination, the finding of facts returned by the first appellate court can be termed as perverse. Hence, it is submitted that this appeal do not involve any substantial question of law nor the finding of facts arrived at by the first appellate court is perverse. Hence, it is submitted that this appeal being without any merit be dismissed.
13. Having heard the submissions made at the Bar and after carefully going through the evidence in the record, this Court finds that though the plaintiffs have filed the suit with a prayer for declaration of two deeds of adoption as null and void on the ground that the same were obtained by fraud and misrepresentation but not a single witness of the plaintiffs has supported the said pleadings of the plaintiffs that the 2 deeds of adoption were in any manner obtained by fraud or misrepresentation which is the basis upon which the prayer for declaration of adoption deeds to be null and void is sought by the plaintiffs-appellants. This failure on the part of the plaintiffs-appellants of not saying a word to indicate that the said 10 Second Appeal No. 72 of 2010 two deeds of adoption were obtained by fraud or misrepresentation is by itself a valid reason for dismissal of the suit. Further though much emphasis is laid by the plaintiff-appellants on the Ext. 8 which is claimed to be deposition of Mukteshwari Debya in Title Suit No.54 of 1993 purported to have been recorded by the Advocate Commissioner but the learned first appellate court for cogent reasons inter alia that the said deposition marked Ext. 8 was not signed by the said Mukteshwari Debya though ordinarily, she used to sign her deposition as is evident from the documents brought on record being Ext. J and other documents without any explanation as to why instead of putting her signature, her left thumb impression was put. The learned first appellate court also considered the other anomalies regarding the misconduct of the pleader commissioner who was deputed to record the statement of Mukteshwari Debya as though in his order sheet, the Advocate Commissioner has indicated on 29.05.1993, that the pleader commissioner informed the plaintiffs' lawyer and the defendant denied to take the notice yet the Ext. 7 and 7/A being the concerned notices discloses that notice were served on 30.05.1993 so a doubt was raised in the mind of the first appellate court as how the pleader commissioner beforehand knew that the defendants will refuse to take notice one day prior to the notice being tendered to the defendants. The learned first appellate court also considered the circumstances that though several witnesses of the plaintiffs claimed that they were present when the Advocate Commissioner was recording the deposition of Mukteshwari Debya 11 Second Appeal No. 72 of 2010 in connection with Title Suit No.57 of 1993 but the pleader commissioner did not obtain the signature of anyone of them in the order sheet and though the P.W.6 even went on to the extent of deposing in paragraph no.4 that he has put his signature over the statement of Mukteshwari Debya but on perusal of the same, no signature of P.W.6 was found thereon. As against this, the first appellate court also considered the evidence put forth by the defendants and also the documentary evidence which went on to show that the defendant nos.3 and 5 were the son and daughter respectively of Sobhi Prasad Singh who was undisputedly the husband of Mukteshwari Debya.
14. Considering the aforesaid facts and circumstances of the case, this Court has no hesitation in holding that there is no perversity committed by the learned first appellate court in finding of fact rather the first appellate court has considered the evidence in the record in its proper perspective and thus no substantial question of law is involved in this appeal, this Court is of the considered view that there is no merit in this appeal, hence the same is dismissed but in the circumstances without any costs.
15. Parties have to bear their own costs.
16. Let a copy of this Judgment be sent to learned court concerned forthwith.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 28th July, 2022 AFR/ Sonu-Gunjan/-
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