Patna High Court
Rajeshwar Pd.Singh vs Awadh Behari Singh & Ors on 14 February, 2012
Author: Mungeshwar Sahoo
Bench: Mungeshwar Sahoo
FIRST APPEAL No. 219 OF 1988
Against the judgment and decree dated 25.04.1988(decree signed on
03.06.1988) by Sri Rameshwar Tiwary, Subordinate Judge VI, Patna in Title Suit No. 68 of 1967/159 of 1985.
RAM P ERVESH KUMAR & ORS. .......... Defendants-Appellants Versus JALESHWAR SINGH & ORS. ......... Plaintiffs-Respondents ******** For the Appellants : Mr. Devendra Kumar Sinha, Sr. Advocate Mr. Bhanu Pratap Singh, Advocate with him.
For the Respondent : Mr. Dhurub Narain, Sr. Advocate Mr. Chakarwarti Singh, Advocate with him.
Dated :14th day of February, 2012 PRESENT THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO JUDGMENT Mungeshwar This First Appeal was filed by the defendant no.1 against Sahoo, J.
the judgment and decree dated 25.04.1988(decree signed on 03.06.1988) by Sri Rameshwar Tiwary, the learned Subordinate Judge VI, Patna in Title Suit No.68 of 1967/159 of 1985 decreeing the plaintiff-respondent's suit in part. During the pendency of the appeal, the sole appellant, Rajeshwar Prasad Singh who was defendant no.1 in the Court below died and his legal representatives have been substituted. Likewise, it appears that most of the plaintiffs-respondents also died and their legal representatives have been substituted. 2 (2) The original plaintiffs-respondents filed the aforesaid Title Suit No.68 of 1967/159 of 1985 praying for declaration of plaintiff's title and want of defendant's title in the suit property and for recovery of possession and further for a decree for a sum of Rs.1,000, the sale proceeds of the produce of the suit land and also prayed for a decree for a sum of Rs.1,000 on account of mesne profits and Rs.498 approximately or any other sum that may be found due on account of future mesne profits. The plaintiffs-respondents claimed the aforesaid relief on the facts inter alia that the plaintiff no.1, Smt. Gulzaria Devi was the daughter of late Deo Narayan Singh of village Rupaspur Simra, P.S. - Phulwari, District - Patna. Deo Narayan died on 29.09.1961 leaving behind his only daughter, Gulzaria Devi as his wife pre- deceased him. The defendants created trouble in the peaceful possession of plaintiff no.1 and, therefore, a proceeding under Section 144 Cr.P.C. was initiated. The said proceeding was converted to 145 Cr.P.C. proceeding. The said proceeding was referred to Munsif III, Patna under Section 146 Cr.P.C. wherein the possession of the defendant no.1 over the suit property was declared by order dated 29.07.1965.
(3) The further case of the plaintiff is that in the said proceeding, the case of defendant no.1 who was son of defendant no.2 was that Deo Narayan Singh died issueless on 29.09.1961. Because of the fact that he had no issue, he had adopted defendant no.1, Rajeshwar Prasad Singh as son in the year 1939 and gifted all the suit property and surrendered the possession of the property in favour of the defendant no.1 and still then after adoption, the defendant no.1 was continuing in possession of the property as owner thereof even 3 during the lifetime of Deo Narayan Singh. According to the plaintiffs, the defendant no.2 is a greedy man and falsely set up a story of adoption and oral gift and surrendered regarding the suit property in favour of his son, Rajeshwar Prasad Singh who is deaf and dumb by birth. The defendant no.2 created all the forged documents for claiming title on the suit property. The defendant no.2 got a false and fictitious title suit being Title Suit No.3 of 1947 filed in the name of Subedar Singh against Parmeshwar Dayal Singh regarding the inheritance of the property of Sajiwan Singh and Kung Behari Singh. In the said suit, Deo Narayan Singh had no concern nor had he any interest of the property and that suit but fraudulently he was made defendant no.10 and in that suit, a fraudulent fictitious compromise application was filed between the parties wherein it is stated that Deo Narayan Singh has adopted Rajeshwar Prasad Singh as a son and he had made oral gift and surrendered his properties to defendant no.1. The said compromise petition was forged document. Deo Narayan Singh had no knowledge about the petition nor he ever signed it. When the plaintiff no.3, Keshaw Singh came to know about the said fictitious compromise, he filed Title Suit No.87 of 1955 for declaration of their title over the property involved in Title Suit No.3 of 1947. In that suit, defendant no.2 appeared and then compromised with plaintiff no.3 and admitted the title of plaintiff no.3 over the property involved in Title Suit No.3 of 1947.
(4) The further case of the plaintiffs is that the family of defendant no.2 including the defendant no.1 was always in litigating term with Deo Narayan Singh and there were many litigation fought between Deo Narayan Singh on the one side and defendant nos.1 and 2 4 on the other side upto the High Court but in none of the cases, the defendant no.2 or defendant no.1 claimed that defendant no.1 is the adopted son of Deo Narayan Singh. Therefore, there is no question of adoption of defendant no.1 by Deo Narayan Singh arises and further that defendant no.1 was deaf and dumb by birth so he could not have been adopted as son by Deo Narayan Singh. Further the plaintiff was the only daughter and Deo Narayan Singh and he had great love and affection in favour of her and on the death of her father, she came and continued in possession of the suit property but because of wrong finding in the reference under Section 145, the defendants dispossessed the plaintiff no.1 on 30th of July, 1965. The original plaintiff no.1, Gulzaria Devi sold her 13 Anna share to plaintiff no.2 to 5 and, therefore, the plaintiffs filed the suit against the defendants claiming for the aforesaid reliefs.
(5) The defendant no.1, Rajeshwar Prasad Singh appeared and filed a contesting written statement alleging that plaintiff no.1, Gulzaria Devi is not the daughter of Deo Narayan Singh rather she is the daughter of chachera mamu of Ramdas Singh. The defendant nos.3,4 and 5 are not the gotia/near relatives of Deo Narayan Singh. The defendant no.6 is not the daughter of sister of Deo Narayan Singh. Deo Narayan Singh had died issueless and he had adopted the defendant no.1 as his son in the year 1939. There was give and take ceremony. The defendant no.1 was not deaf and dumb by birth. In the year 1947, he was attacked with typhoid and chicken pox and because of that, his throat and ear was affected and damaged and he became deaf and dumb thereafter. After adoption in 1939, he severed his relation with his original father, Polish Singh, defendant no.2 and he 5 became the son of Deo Narayan Singh. He was living with his adoptive father after adoption and was managing the entire property. After death of Deo Narayan, he performed his shradh. Deo Narayan Singh was defendant in Title Suit No.3 of 1947 wherein he has admitted the fact that he adopted defendant no.1 as son. Title Suit No.87 of 1995 has no relation with Title Suit No.3 of 1947. On the death of Deo Narayan Singh, the enemies of defendant no.1 claimed title and possession of the suit property and, therefore, 144 Cr.P.C. proceeding was initiated wherein the possession of defendant no.1 has been rightly declared. The defendant no.2, Polish Singh, original father of defendant no.1 filed the separate written statement alleging the same fact as alleged by the defendant no.1. It may be mentioned here that all of them have died and their legal representatives have been substituted.
(6) The defendant no.6 although filed written statement but never contested the suit. Her case was that she is the daughter of sister of Deo Narayan Singh. The defendant no.3 also filed separate written statement but never contested the case.
(7) On the basis of aforesaid pleadings, the learned Court below framed the following issues:
I. Is the suit as framed maintainable?
II. Have the plaintiffs any cause of action for the suit? III. Is the suit barred by limitation, estoppel, waiver and acquiescence? IV. Is the suit properly valued and is the court fee paid in the plaint sufficient?
V. Is the suit bad for mis-joinder of the parties?6
VI. Is the original plaintiff no.1 daughter of Deo Narayan Singh? VII. Are the plaintiffs entitled to a decree for the title and possession in respect of the "Schedule-I" properties?
VIII. Are the plaintiffs entitled to a decree for Rs.1000, the sale proceeds of the suit lands?
IX. Are the plaintiffs entitled to past and future mesne profits? X. To what relief or releifs if any are the plaintiffs entitled? XI. Is the suit hit by Res-judicata?
XII. Has the 3 Anna shares of Mostt. Gulzaria Devi abated? XIII. Is the sale deed dated 9.1.1967 genuine document? XIV. Is the defendant no.1 adopted son of Deo Narayan Singh?
(8) It appears that during the pendency of the suit, the plaintiff no.1, Gulzaria Devi died. Her legal representatives were not substituted and, therefore, initially the trial court dismissed the suit as abated. The plaintiff nos.2 to 5 filed Misc. Appeal before the High Court being Misc. Appeal No.105 of 1979. This Court by terms of order dated 15.11.1983 held that she had already sold her 13 Anna share in favour of plaintiff nos.2 to 5 and she had only 3 Anna share in the suit property. Her claim was distinct and separate from the claim of the plaintiff nos.2 to 5 and, therefore, the suit will abate with respect to her 3 Anna share but not with respect to 13 Anna share of the plaintiff nos.2 to 5 and thus, the suit proceeded with respect to 13 Anna share of the plaintiff nos.2 to 5 and abated with respect to 3 Anna share of plaintiff no.1. Therefore, the plaintiff's suit has been decreed with respect to their 13 Anna share.
(9) After trial, the learned Court below came to the conclusion that the suit has abated regarding 3 Anna share of plaintiff 7 no.1. The defendant no.1 is deaf and dumb by birth. The defendant no.1 was never adopted by Deo Narayan Singh. The compromise decree passed in Title Suit No.3 of 1947 and 59 of 1949 are suspicious documents. The learned Court below also found that sale deed executed by plaintiff no.1 in favour of plaintiff nos.2 to 5(Exhibit-5) is genuine document. The plaintiff no.1, Gulzaria Devi is the daughter of Deo Narayan Singh. The plaintiffs are not entitled for the sale proceeds of Rs.1,000 because the same was deposited and/or withdrawn by the defendants prior to purchase by plaintiff nos.2 to 5. Ultimately, the learned Court below decreed the suit holding that the plaintiff nos.2 to 5 have got their title in respect of 13 Anna share detailed in Schedule-I of the plaint and defendant no.1 was directed to hand over possession.
(10) The learned senior counsel, Mr. Devendra Kumar Sinha appearing on behalf of the appellants submitted that the learned Court below has wrongly recorded a finding that defendant no.1 was not the adopted son of Deo Narayan Singh. The learned Court below has not properly appreciated the fact stated by Deo Narayan Singh in the compromise application filed in Title Suit No.3 of 1947 wherein he had clearly admitted the fact of adoption and oral gift of the property and surrendering the property in favour of defendant no.1. the learned counsel further submitted that the learned Court below has wrongly held that the defendant no.1 was deaf and dumb by birth, therefore, he could not be adopted. According to the learned counsel, in fact, in the year 1947, the defendant no.1 was attacked with chicken pox and typhoid and in the said disease, his throat and ear were damaged and he became deaf and dumb and, therefore, he was not deaf and dumb on the date of adoption in the year 1939. The learned counsel further 8 submitted that the sale deed, Exhibit-5 is not a sale deed but in fact, it is a contract between the plaintiff no.1 and plaintiff nos.2 to 5 and, therefore, no title passed to plaintiff nos.2 to 5 by Exhibit-5. The learned counsel placed Exhibit-5 in extenso in support of his contention. According to the learned counsel, plaintiff no.1 was not the daughter of Deo Narayan Singh but the learned Court below wrongly recorded the said finding and wrongly decreed the plaintiff's suit.
(11) On the other hand, the learned senior counsel, Mr. Dhurub Narain appearing on behalf of the plaintiff nos.2 to 5, respondents submitted that in fact, defendant no.1 was deaf and dumb by birth and he was never adopted by Deo Narayan Singh. It is his real father defendant no.2 who has cooked up this false story with a view to grab the property of Deo Narayan Singh and even after decree, still today, the defendant no.2 and/his legal representatives are enjoying the suit property thereby depriving the real decree holders. According to the learned counsel, the defendant nos.1 and 2 were in litigating term with the Deo Narayan Singh and, therefore, there was no question of any adoption arises. A title suit was filed by Deo Narayan Singh against defendant nos.1 and 2. That case came upto High Court in Second Appeal. In those cases, the defendant no.1 or 2 never claimed that Deo Narayan Singh adopted Rajeshwar Prasad Singh, the defendant no.1 as his son in the year 1939. For the first time, after death of Deo Narayan Singh, this cooked up story has been put forth by defendant no.2. The medical board examined defendant no.1 and found him to be deaf and dumb by birth and it has come into evidence that other brother and sister of defendant no.1 are also deaf and dumb by birth. According to the learned counsel, all the children of defendant 9 no.2 are deaf and dumb by birth. The learned counsel further submitted that the learned Court below wrongly held that suit has abated against 3 Anna share of plaintiff no.1 because the plaintiff nos.2 to 5 had filed the suit praying the same relief. Therefore, on the death of plaintiff no.1, her 3 Anna share also devolved on the present plaintiff nos.2 to 5. In such circumstances, the learned Court below should have decreed the suit in toto. The learned Court below has rightly considering the materials on record came to the conclusion that the plaintiff no.1 was the daughter of Deo Narayan Singh and the finding recorded by the Court below is based on oral evidences and, therefore, in First Appeal, the finding regarding the parentage of Gulzaria Devi cannot be interfered with lightly. On these grounds, the learned counsel submitted that the First Appeal is liable to be dismissed and the respondents are entitled for the exemplary cost in the present case because they have been deprived of their property since long even after passing the judgment and decree. The learned Court below wrongly not granted the decree regarding Rs.1,000 sale proceeds of the produce of suit property which has been withdrawn by the defendant nos.1 and 2 after 146 Cr.P.C. proceeding and not granted decree for mesne profits. A cross-objection under Order 41 Rule 22 C.P.C. has been filed by the plaintiffs-respondents claiming these reliefs which has been refused by the Court below.
(12) In view of the above rival contentions of the parties, the points arise for determinations in the present appeal are as follows: 10
a. Whether Gulzaria Devi, plaintiff no.1 was the daughter of Deo Narayan Singh and whether the alleged sale deed, Exhibit-5 confer title on plaintiff nos.2 to 5?
b. Whether defendant no.1 was adopted as son by Deo Narayan Singh and gifted the property and surrendered the possession of the suit property in favour of defendant no.1?
c. Whether the plaintiffs-respondents are entitled to their claim regarding Rs.1,000 sale proceeds of the produce of the property and mesne profits which has been claimed by them by way of filing cross- objection and whether the plaintiff nos.2 to 5, respondents are entitled to succeed the other 3 Anna share of the defendants? Point no. 'a' (13) According to the plaintiff, Gulzaria Devi is the daughter of Deo Narayan Singh whereas according to the contesting defendant nos.1 and 2, she is not the daughter of Deo Narayan Singh rather she is the daughter of chachera mamu of Ramdas Singh. This question is one of the important questions to be decided in this appeal because if it is found that Gulzaria Devi is not the daughter of Deo Narayan Singh, then in my opinion, she will not be entitled to challenge the alleged adoption of defendant no.1 by Deo Narayan Singh and consequently she will have no interest or right in the property of Deo Narayan Singh.
Therefore, even if she had transferred any property claiming herself to be the daughter of Deo Narayan Singh in favour of the plaintiff nos.2 to 5, no title will pass on plaintiff nos.2 to 5. If this question will be found in favour of plaintiff no.1 then the second question will arise as to whether the defendant no.1 was adopted by Deo Narayan Singh or not. 11 In support of their respective cases regarding adoption, the parties have adduced evidences.
(14) Admittedly, in this case none of the parties have filed any documentary evidence in support of the parentage of Gulzaria Devi. Only it is stated by the defendant no.2 that she is the daughter of chachera mamu of Ramdas Singh. P.W.4 has stated that Gulzaria Devi was married with Nanhku Singh and this witness has attended the marriage. According to this witness, Deo Narayan Singh married Gulzaria Devi with Nanhku Singh. It appears that this witness is resident of same village, Tikaitpur i.e. the sasural of Gulzaria Devi. P.W.5 has stated that Deo Narayan Singh is his fufa and the name of his fufi was Sanjogani Devi i.e. mother of Gulzaria Devi. According to him also, Gulzaria Devi was married with Nanhku Singh of village Tikaitpur. He participated in her marriage. He had given lawa in the marriage as brother usually gives lawa at the time of marriage to the sister. P.W.6 has stated that Gulzaria Devi was daughter of Deo Narayan Singh. She used to come to her father's house and he has heard her calling to Deo Narayan Singh as Babuji. This evidence of this witness is admissible u/s 50/60 of the Evidence Act. P.W.7 is brother in law of Nanhku Singh also stated that wife of Nanhku Singh was daughter of Deo Narayan Singh of village Simra. He has also participated in their marriage. P.W.8, gotia of Nanhku Singh, P.W.9, the son of Dhanpatia Kuer(sister of Sanjogani Devi), P.W.10, neighbour of Deo Narayan Singh, P.W.11, brother-in-law of Nayak Singh(brother of Nanhku Singh), P.W.12, Bhagina of Nathuni Singh(neighbour of Nanhku), P.W.13, Purohit of Deo Narayan Singh, P.W.14, P.W.15, P.W.16, P.W.19 to P.W.23, P.W.27, P.W.30 to P.W.35, P.W.38, P.W.41, 12 all have stated that Gulzaria Devi was the daughter of Deo Narayan Singh of village Simra who was married with Nanhku Singh of village Tikaitpur. P.W.25 is the Gulzaria Devi herself. She has fully stated the same thing as mentioned in the plaint regarding her parentage and performance of shradh.
(15) On the other hand, according to the defendant's witnesses, all the witnesses have stated that Deo Narayan Singh had no issue either male or female. Therefore, all the witnesses examined on behalf of the defendants have deposed in negative. It is well settled that the positive fact is to be proved and, therefore, except 1 or 2 bald statement made by either the defendant no.2 and other witnesses that Gulzaria Devi is the daughter of chachera mamu of Ramdas Singh cannot be relied upon in view of preponderance of evidences of the plaintiffs discussed above. From perusal of the evidence of P.W.25, Gulzaria Devi, it appears that she has stated in great details about the village Simra and the members of families of village Simra and also she has described the relation between the resident of village Simra with Deo Narayan Singh which clearly indicates that she has got substantial knowledge about the village of Deo Narayan Singh and the people who are resident of said village. It is not expected from a person who is not resident of the village or not closely related with Deo Narayan Singh to explain in great detail about the village and relationship of the people with Deo Narayan Singh. As stated above, the defendants have only adduced negative evidence. D.W. 8 has admitted that he had seen Gulzaria Devi living in Simra village 20-22 years before which clearly proves that Gulzaria Devi was residing in the village Simra. It has come in evidence that the chachera mamu of Ramdas Singh was 13 Balgovind Singh. Although, it is stated by the defendant that Gulzaria Devi is daughter of said Balgovind Singh but in the present case, Ramdas Singh has been examined as P.W.27 on behalf of the plaintiff who has denied this fact. Although D.W.15 has stated that Gulzaria Devi is daughter of Balgovind Singh, in the cross-examination, he is not able to the say how many sons and daughters Balgovind had. He has further admitted that he has filed a criminal case against plaintiff no.3, Keshaw Singh. Therefore, his evidence cannot be relied upon. Likewise D.W.16 although stated that Gulzaria was daughter of Balgovind but he has given wrong parentage of Balgovind and he is unable to give information of village Jatichak where Balgovind resides. Likewise D.W.22 stated the same thing as D.W.16 stated but in the cross-examination, he is not able to say anything about Balgovind Singh. D.W.36 is one of the party-defendant.
(16) D.W.1 although has stated that Gulzaria Devi is daughter of Balgovind but in the cross-examination, he has clearly stated that he came to depose before the court receiving Rs.15 from the defendants and it appears that in the witness box, he also shown the said amount in the open court. Likewise, the other witnesses D.W.24 and D.W.25 did not support the case of the defendants.
(17) It appears that the defendants have produced Exhibit-A- 1/1 and Exhibit-B which are the certified copies of deposition of Deo Narayan Singh in Title Suit No.64 of 1955 and order of Munsif III, Patna in Misc. Case No.2 of 1963 wherein in the cross-examination, Deo Narayan Singh had stated that after his death, the property will go to state as he has no heir. Therefore, on the basis of this statement 14 alone, it cannot be said that Gulzaria Devi is not his daughter. Admittedly, the suit is of the year 1955 and at that time the daughters were not considered to be the heir. It is not the case of Deo Narayan Singh that Gulzaria Devi is not his daughter.
(18) It is well settled principles of law that the finding of fact recorded by the trial court on appreciation of oral evidence only the appellate court should not lightly interfere with the said finding unless it is shown that particular vital statement of a witness has not been considered by the trial court and had it been considered by the trial court, the finding would have been otherwise because the trial court has the advantage of seeing the witnesses in the witness box and watching the manner and demanner of the witness. The appellate court has no such opportunity to see the witnesses in the witness box. This is the view taken by the Hon'ble Apex Court in AIR 1983, S.C.114. This decision has been followed by the Apex Court and various other High Courts including Patna High Court in many decisions and still these principles laid down by the Supreme Court holds good in this field.
(19) In view of my above discussion, I find that the plaintiffs have been able to prove that original plaintiff no.1, Gulzaria Devi was the daughter of Deo Narayan Singh. The defendants failed to prove that she was daughter of Balgovind Singh i.e. chachera mamu of Ramdas Singh. Therefore, the finding of the learned trial court on this point is hereby confirmed.
Point no. 'b' (20) According to the plaintiff-defendant no.1, Rajeshwar Prasad Singh was never adopted by Deo Narayan Singh and he could 15 not have been adopted because he was deaf and dumb by birth. The learned counsel for the respondents submitted that the adoption alleged by the defendant is in the year 1939 and the Hindu Adoption Act came into force in 1956. Therefore, the adoption claimed by the defendants will be governed by old Hindu law. According to old Hindu law, a person who is deaf and dumb by birth cannot be adopted. The learned counsel further submitted that there is no evidence at all that he became deaf and dumb in the year 1947 because of chicken pox and typhoid. On the contrary, the learned counsel for the appellants submitted that in the compromise application, Deo Narayan Singh admitted that he had adopted Rajeshwar Prasad Singh in the year 1939 and he gifted the property and surrendered the possession of the property in favour of Rajeshwar Prasad Singh.
(21) Admittedly, in this case, there is no document regarding adoption of the year 1939. So far the submission of the learned counsel for the appellants that Deo Narayan Singh adopted Rajeshwar Prasad Singh is concerned, Title Suit No.3 of 1947 was filed by Subedar Singh against Parmeshwar Dayal Singh regarding the inheritance of property of Sajiwan Singh and Kung Behari Singh. It is admitted fact that with regard to that property involved in the said suit Deo Narayan Singh had no concern. Deo Narayan Singh was made defendant no.10 in the said suit. The learned counsel for the appellants submitted that in said suit, Deo Narayan Singh has admitted the fact that he adopted defendant no.1 and gifted the property to him and surrendered the possession. So far this submission is concerned, it appears to me that when Deo Narayan Singh had no concern with the subject matter of that suit what was the occasion for him for making such statement in 16 the compromise application. It may be mentioned here that the said suit was decreed in terms of compromise. The plaintiff no.3 thereafter filed the title suit for setting aside the compromise decree being Title Suit No.87 of 1955. In the said title suit, the defendant no.2, Polish Singh admitted unconditionally the title and claim of plaintiff no.3 with regard to the property of Sajiwan Singh. Admittedly, Deo Narayan Singh do not belong to the family of Sajiwan Singh nor he has any relation with him. In such view of the matter, only on the alleged statement of Deo Narayan Singh in compromise application, it cannot be said that Deo Narayan Singh had adopted defendant no.1. Because of subsequent compromise automatically the earlier compromise decree in Title Suit No.3 of 1947 was superseded.
(22) The other aspect of the matter is that Deo Narayan Singh filed Title Suit No.64 of 1955 against Polish Singh (present defendant no.2) and Rajeshwar Prasad Singh (present defendant no.1). In the said suit, neither the defendant no.1 nor defendant no.2 claimed adoption by Deo Narayan Singh and the plaintiff, Deo Narayan Singh also never claimed that defendant no.1, Rajeshwar Prasad Singh is his adopted son. The plaintiffs have produced the plaint of Title Suit No.64 of 1955(Exhibit-1). The memo of appeal has been marked as Exhibit-
2. Exhibit-2/A is the certified copy of Second Appeal No.83 of 1958. In these suit appeal and Second Appeal, the defendant no.1 has been shown as the son of Polish Singh. Neither the defendant no.1, Rajeshwar Prasad Singh nor the defendant no.2, Polish Singh nor any other family members who were defendant in the said suit claimed ever that Deo Narayan Singh had adopted Rajeshwar Prasad Singh. The other aspect of the matter is that if Rajeshwar Prasad Singh had 17 already adopted by Deo Narayan Singh in 1939, he could not have filed the suit against Rajeshwar Prasad Singh describing him as the son of Polish Singh. These documents have been produced by the plaintiff to show that the defendants were in litigating term with Deo Narayan Singh. Therefore, there was no question of adoption arises.
(23) The plaintiffs have also produced the vakalatnama executed by Rajeshwar Prasad Singh in Title Suit No.87 of 1955 which has been marked Exhibit-8. In the said vakalatnama, Rajeshwar Prasad Singh himself described him as son of Polish Singh. Moreover, it appears that in the said vakalatnama, there are cuttings and over writings without there being any signature. The deposition of Deo Narayan Singh has been marked as Exhibit-1/1. Deo Narayan Singh has deposed to the effect that father of Polish Singh is not related with Deo Narayan Singh in any way. No suggestion was even given by the present defendant to Deo Narayan Singh regarding the adoption of Rajeshwar Prasad Singh by him.
(24) The learned counsel for the respondents relied upon Exhibit-A-2 which is information petition dated 29.07.1961. It may be mentioned here that Deo Narayan Singh admittedly died on 29.09.1961. It has come in the evidence that the body of Deo Narayan Singh was swollen one year prior to his death. No reason has been assigned as to under what circumstances and as to why such information was given on 29.07.1961. In my opinion, therefore, on the basis of this Exhibit-A-2, it cannot be recorded that Deo Narayan Singh had adopted Rajeshwar Prasad Singh. We have seen that deceased Deo Narayan Singh was in litigating term with the present defendant. 18
(25) The other aspect of the matter is that according to the plaintiff, defendant no.1 is deaf and dumb by birth whereas according to the defendants, defendant no.1 became deaf and dumb in the year 1947. In the present case, a medical board was constituted consisting of 3 eminent doctors. The doctors have been examined as P.W.50,51 and 52. All of them have stated that defendant no.1 was deaf and dumb by birth. They have also proved their reports which have been marked as Exhibit-21 series. From perusal of the said Exhibit-21 series, it appears that the learned doctors constituting the medical board had categorically stated that defendant no.1 was deaf and dumb by birth. In such circumstances, as the defendant is claiming that the defendant no.1 was adopted by Deo Narayan Singh in the year 1939, in my opinion, in view of Article 480 of principles of Hindu law by mullah, 16th edition, reprinted in the year 1991, the defendant no.1 being the deaf and dumb by birth could not have been adopted or is incapable as being adopted by Deo Narayan Singh.
(26) In view of the above discussions of the evidences and materials on record, I find that the learned court below has rightly came to the conclusion that the defendant no.1 was not adopted as son of Deo Narayan Singh. The finding of the learned court below on this point is therefore, hereby confirmed.
Point no. 'c' (27) On 30.09.2011, an application has been filed by the appellants under Order 41 Rule 27 C.P.C. being I.A. No.6961 of 2011 seeking permission to produce certified copy of the revisional survey khatiyan showing the recording of the suit land in the name of 19 Rajeshwar Prasad Singh and malgujari receipts of the year 2011-12 showing payment of tax pursuant to recording of name of Rajeshwar Prasad Singh as additional evidence in the appeal. During the course of hearing of this appeal I also heard the parties on this Interlocutory Application and is being disposed of in the judgment. It is well settled principles of law that the revenue records neither creates title nor extinguish title in favour of any person. I have held that defendant no.1, Rajeshwar Prasad Singh is not the adopted son of Deo Narayan Singh. Now, therefore, he has no concern with the property of Deo Narayan Singh. Only because his name has been recorded in the revenue record of right or that pursuant to that recording of his name, he paid the rent to the State of Bihar, he cannot be declared to be the real owner of the property particularly when I have also held above that original plaintiff no.1, Gulzaria Devi was the daughter of Deo Narayan Singh. Therefore, on the death of Deo Narayan Singh, his all properties were inherited by his daughter Gulzaria Devi. In such circumstances, recording of the property in the name of defendant no.1 will neither create title in favour of defendant no.1 nor it extinguished title of Gulzaria Devi. Admittedly, the parties are in litigating term regarding the suit property from the year 1967. In my opinion, therefore, these documents filed by the appellants with the Interlocutory Application are neither here nor there and are not relevant for the decision of the point as to whether Gulzaria Devi is the daughter of Deo Narayan Singh or as to whether Rajeshwar Prasad Singh is adopted son of Deo Narayan Singh. I, therefore, find that these two documents are not helpful to the appellant. Since I have considered the documents in extenso, therefore, it is not necessary to adjourn the case for proving or marking 20 the said documents as Exhibit on behalf of the appellants. Accordingly, the I.A. is also disposed of in terms of the observation made in this paragraph.
(28) We have seen above that the defendant no.1 is not the adopted son of Deo Narayan Singh, therefore, he has got no concern with the subject matter of the suit but he is in possession of the same forcibly. The learned counsel for the respondents submitted that on the strength of force, the appellant has been able to deprive the plaintiffs- respondents from their properties. Even Rs.1,000 deposited in 146 proceedings has been withdrawn by the appellants, the plaintiffs- respondents are entitled to recover the said amount because the defendant-appellant withdrew the said amount without having any title on the property. From perusal of the judgment and decree, it appears that the learned court below rejected the plea only on the ground that the sale proceeds of the produce i.e. Rs.1,000 has been deposited prior to purchase made by the appellant nos.2 to 5. The question is whether the plaintiffs purchased the property after deposit is not the main consideration. We have found above that Gulzaria Devi was the daughter of Deo Narayan Singh and, therefore, she had transferred the property to plaintiff nos.2 to 5. Plaintiff no.1 was Gulzaria Devi herself. Only because Gulzaria Devi died during the pendency of the suit, the title will not be created in favour of defendant no.1 or 2. In any case, they have no title interest over the suit property. They are out and out trespassers and therefore, they were not entitled to withdraw the amount of Rs.1,000 which was deposited in the 145 Cr.P.C. proceeding. The finding recorded by the court below is with regard to possession only. In my opinion, therefore, the amount which has been withdrawn 21 by the defendants is liable to be refunded to the plaintiffs. The plaintiffs are therefore, entitled to receive at least to the extent of their 13 Anna share out of the said sale proceeds as mesne profits. Admittedly, the defendants are continuing since then in the suit property without having any title or interest. While granting stay of delivery of possession, this court has directed the defendants to deposit the mesne profits at the rate of Rs.20,000 per year. An application has been filed by the plaintiffs-respondents being I.A. No.5475 of 2011 on 10.08.2011 praying for directing the appellants to deposit Rs.60,000 as mesne profits per year. The learned counsel for the plaintiffs- respondents submitted that the order directing to deposit Rs.20,000 was passed on 27.07.2007. Earlier on 01.11.1989, the defendants were directed to deposit Rs.10,000 per year as mesne profits and, therefore, considering the present market rate, the defendants are liable to pay Rs.60,000 per year as mesne profits. In my opinion, this question cannot be decided in this First Appeal because it requires evidence. However, it is held that since the defendants-appellants are in possession without there being any semblance of title, and they forcibly deprived the plaintiffs-respondents from their lawful entitlement, in my opinion, the plaintiffs-respondents are entitled to receive mesne profits for the entire period i.e. from the date of purchase of the suit property from the plaintiff no.1 till the possession is delivered. The court below shall decide this mesne profits per year according to law. That part of the impugned judgment and decree regarding mesne profits is hereby modified and the cross-objection filed by the plaintiffs-respondents is allowed.
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(29) The learned counsel for the appellants submitted that the sale deed Exhibit-5 executed by plaintiff no.1 in favour of plaintiff nos.2 to 5 is not a sale deed and title did not pass on plaintiff nos.2 to 5. I myself read the sale deed. I do not agree with the learned counsel for the appellants. In my opinion, it is sale deed and part consideration was paid by the plaintiff nos.2 to 5 to plaintiff no.1 and the part consideration was adjusted in defending the litigation. The other aspect of the matter is that the defendant no.1 having no semblance of title cannot challenge either genuineness of the document or passing of consideration. This question is in between plaintiff no.1 and plaintiff nos.2 to 5. I, therefore, find that plaintiff no.1 validly conveyed her title to the extent of 13 Anna in favour of the plaintiff nos.2 to 5. The argument of the learned counsel for the plaintiff nos.2 to 5, respondents that they are entitled to succeed the 3 Anna share of Gulzaria Devi is concerned, in my opinion, the matter has already been settled by this Court in Misc. Appeal No.105 of 1979 by terms of order dated 15.11.1983 and it has been held that 3 Anna share of Gulzaria Devi has abated. In such circumstances, the submission of the learned counsel for the plaintiff nos.2 to 5, respondents is not acceptable.
(30) In view of my above discussion and finding, in my opinion, this is a fit case where the present litigation could have been avoided by the defendants-appellants but they compelled the plaintiffs to fight the uncalled for frivolous litigation for such a long period by raising frivolous defence. Therefore, in the facts and circumstances of the case, they are liable to pay exemplary cost and to compensate the plaintiffs-respondents in addition to the mesne profits that may be 23 determined and the amount which is being deposited by the appellants yearly as directed by this Court.
(31) In the result, I, therefore, find no merit in this First Appeal. As such, this First Appeal is dismissed with cost of Rs.50,000 to be paid by the defendants-appellants to the plaintiff nos.2 to 5, respondents within 3 months. The plaintiffs-respondents are entitled to realize the cost through process of law, if not paid by the appellants.
(Mungeshwar Sahoo, J.) Patna High Court, Patna The 14th February, 2012 Saurabh/A.F.R.