Delhi District Court
Sh. Satbir Singh vs Sh. Harish S/O Late Sh. Pehlad Singh on 31 July, 2021
OLD CASE
IN THE COURT OF AJAY GOEL, ADJ-04,
SOUTH WEST DISTRICT, DWARKA COURTS : NEW DELHI.
CS-515423/16
In the matter of:
1. Sh. Satbir Singh
2. Sh. Rishi Pal
3. Shri Satpal
All sons of late Shri Ram Saran,
r/o B-11, Flat No. 8236, Vasant Kunj,
New Delhi-110 070.
4. Smt. Premwati
d/o late Shri Ram Saran
w/o Sh. Muni Ram
r/o Village & Post office Bajghera,
Gurgaon, Haryana.
.........Plaintiffs.
VERSUS
1. Sh. Harish s/o late Sh. Pehlad Singh,
r/o H.No. 195, Block-D, Sector-8,
Dwarka, New Delhi.
2.Smt. Birmati w/o late Sh. Pehlad Singh,
r/o H.No. 91, Gali no. 6, Block G, Prem Nagar,
Najafgarh, New Delhi.
CS-515423/16 Page No. 1/59
3. Smt. Krishna d/o late Sh. Pehlad Singh,
w/o Sh. Om Parkash.
4. Smt. Darshana d/o late Sh. Pehlad Singh,
w/o Sh. Sumer Singh
Both r/o RZ-B/2, Prem Nagar, Najafgarh, New Delhi.
5. Smt. Suresh d/o Late Sh. Pehlad Singh,
w/o Sh. Jagat Singh
r/o RZ-112, Block-G Prem Nagar, Najafgarh, New Delhi.
6. Smt. Savita d/o late Sh. Pehlad Singh,
w/o Sh. Ajit Singh,
r/o 6/524, Sant Colony, Bahadurgarh, Haryana.
7. Smt. Sunita d/o late Sh. Pehlad Singh,
w/o Sh. Naresh Ahlawat,
r/o 1890, Sector-6, Bahadurgarh, Haryana.
8. Ms. Vandana d/o late Sh. Pehlad Singh,
r/o H.No. 91, Gali No. 6, Block-G, Prem Nagar,
Najafgarh, New Delhi.
........Defendants.
Date of filing :- 12.7.2011
Date of Assignment to this court:- 14.7.2020
Date of Arguments:- 27.7.2021
Date of Decision:- 31.7.2021
JUDGMENT
1. Vide this judgment, I shall dispose off the present suit for CS-515423/16 Page No. 2/59 declaration and permanent injunction filed by the plaintiffs against the defendants stating that Sh. Bhollar son of Sh. Heera was common ancestor of the parties who was blessed with two sons namely Sh. Ram Saran and Sh. Balram. As stated Sh. Bhollar was having agricultural land in village Nangal Dewat, New Delhi to the extent of 128 bighas 17 biswas and 25 bighas 15 biswas in village Sahupur, Delhi which was a non residential village. Apart form this, he was having land in village abadi of Nangal Dewat comprised in Khasra no. 1247/5/2(0-17), 1243 measuring 367 sq. yds, 361 sq. yds and 737 sq. yds. full share and 1243 measuring 551 sq. yds 1/4th share which was inherited by his two sons Ram Saran and Balram in equal share. It is further stated that Sh. Ram Saran was married to one Smt. Bodha and out of their wedlock one son namely Sh. Pehlad Singh was born in 1938-39, however Smt. Bodha expired in the year 1940 and after her death Sh. Ram Saran got remarried to Smt. Brahma Devi some time in 1946-1947 and from the said wedlock the plaintiffs were born. The other son of Sh. Bhollar namely Sh. Balram remained unmarried during his lifetime and after the birth of Sh. Satbir i.e. plaintiff no. 1 some CS-515423/16 Page No. 3/59 time 1951-52 Sh. Balram had requested Sh. Ram Saran to give him in adoption his other son namely Pehlad Singh since he already had plaintiff no. 1 as his son and thereafter Sh. Pehlad Singh was given in adoption to Sh. Balram in the year 1951-52 without any written document and in a simple ceremony as per the custom prevailing in the community of the plaintiffs as per which any child below age of 15 years could be adopted, however, in case of adoption of male child, the child to be given in adoption should not be the only male child of the family giving the child in adoption. It is averred that Sh. Ram Saran and Sh. Balram remained in joint mess upto 1955-1956 and Sh. Pehlad Singh got married to Smt. Birmati in the year 1954. All the rituals of marriage of Sh. Pehlad Singh as stated were performed by Sh. Balram Singh in the capacity of father and after separation of Sh. Ram Saran and Sh. Balram, Sh. Pehlad Singh alongwith his wife being adopted son of Sh. Balram started living with Sh. Balram only and they even got their name written on front of their house as Pehlad, Balram joint house. It is stated that later on Sh. Balram even applied for a ration card, which was issued and in the same CS-515423/16 Page No. 4/59 name of Sh. Pehlad Singh was included as son of Balram with his wife Birmati and subsequently the names children of Sh. Pehlad Singh i.e. six daughters namely Krishna, Darshana, Suresh, Savita, Sunita, Vandana and one son Harish were also included. Further, to give effectiveness to the said adoption it is stated that Sh. Pehlad Singh and his wife Smt. Birmati also filed suits against Sh. Balram, Sh. Satbir Singh and Smt. Brahma Devi also filed suits against Sh. Ram Saran details of which were given in para no. 6 of the plaint, however, in the meantime Sh. Ram Saran had expired on 02.03.1972 and the remaining land i.e. 33 bighas 02 biswas situated in village Nangal Dewat and 25 bighas 15 biswas situated in village Sahupur got mutated in the name of Smt. Brahma Devi wife of Sh. Ram Saran, Sh. Pehlad Singh, Sh. Satbir Singh, Sh. Rishi Pal and Sat Pal sons of Sh. Ram Saran and Smt. Premwati daughter of Sh. Ram Saran and the said mutation in the name of Sh. Pehlad Singh was not objected by the plaintiffs as the land in question was already notified for its compulsory acquisition and Sh. Pehlad had promised to return the compensation or any benefits which he will be getting from the wrong mutation of share of Sh. CS-515423/16 Page No. 5/59 Ram Saran in his favour to the plaintiff which he returned later on to the plaintiffs. It is further stated that agricultural land of village Nangal Dewat was notified on 3.12.1971 by the government for its compulsory acquisition for expansion of Palam Airport and the same was finally acquired vide award no. 23/1973-74 and compensation was assessed for the aforesaid acquired land in terms of the aforesaid decree and Sh. Pehlad Singh to honour his adoption by Sh. Balram relinquished his share in the land of Sh. Ram Saran and compensation was disbursed to Smt. Brahma Devi, Sh. Satbir Singh, Sh. Pehlad Singh and Smt. Birmati and further compensation of land measuring 33 bighas and 02 biswas comprised in khasra no. 1079/1(2-8), 1089(4-16), 1090(4-16), 1092/1(2-8), 1093(4-16), 1094(4-16), 1095(4-16),1122(0-5), 1152(4-01) whose decree was not obtained and was in the joint name of Sh. Balram and Sh. Ram Saran was ordered to be paid in favour of Sh. Balram to the extent of ½ half and remaining half share was paid to Sh. Satbir Singh, Sh. Rishi Pal, Sh. Sat Pal, Smt. Premwati(Prem Devi), Smt. Brahma Devi in equal share i.e. 1/10 th. As stated Sh. Pehlad Singh had relinquished his right in these CS-515423/16 Page No. 6/59 khasra nos and the enhanced compensation awarded by Reference Court and by Hon'ble High Court was also paid to the aforesaid persons in the similar way as per the order dated 03-08-1973 passed by the then Ld. LAC Sh. Raja Sham Karan. It is further stated that on 24.4.1972 abadi land of village Nangal Dewat was notified for its compulsory acquisition for development of Palam Airport and in response to the notice u/s 9 and 10 of LAC Act the legal heirs of Sh. Ram Saran excluding Sh. Pehlad Singh had filed their claim to the extent of ½ share and Sh. Balram with Sh. Pehlad Singh and his wife Birmat had filed their claim to the extent of ½ share. It is stated that villagers had assailed the acquisition of village abadi before Hon'ble High Court in WP(C ) No. 481/82 titled as Daryao Singh Vs. UOI and later on in the said writ a compromise was arrived at between the government and the villagers as per which the villagers have abandoned their claim to question the acquisition because the Government agreed to rehabilitate the villagers. As stated in accordance with Rehabilitation Scheme, Sh. Pehlad Singh and Sh. Balram were entitled to get plots and since Sh. Balram and Sh. Pehlad had died, CS-515423/16 Page No. 7/59 therefore in 2002-2003 for the purpose of getting plots Smt. Beermati w/o Sh. Pehlad applied with the Nodal officer for getting her name mutated in place of Sh. Pehlad Singh on the basis of will in her favour alongwith her Sh. Harish applied for getting his name mutated in place of Sh. Balram on the basis of alleged adoption deed, the said cases were contested by the plaintiffs and the LAC Nodal Officer on the basis of the compromise deed arrived in suit no. 571/91, titled as Satbir and Ors Vs. Pehlad in a joint order bearing order no. 80/04, dated 10.12.2004 rejected the claims of Smt. Beermati and Sh. Harish with the findings that Sh. Pehlad Singh was adopted son of Balram and Adoption Deed of Sh. Harish appears just to claim two shares and thereafter Smt. Birmati and Sh. Harish have filed civil suit no. 121 of 2009 and 320 of 20210 which are pending adjudication before the Hon'ble High Court. It is further stated that land comprised in khasra no. 16 min (4-12), 19min(1-6), 29/3(2-4), 42(4-16), 47/1(1-11), 70(4-1), 159/3(2-3), 182(4-16), total measuring 25 bighas 9 biswas situated in revenue estate of village Sahupur was compulsorily notified for its acquisition by LAC vide notification dated 27.1.1984 and the CS-515423/16 Page No. 8/59 same was finally acquired vide award no. 17/1986-87 and even land comprised in khasra no. 16/1(0-4) and 19/1(0-2) was also notified for its acquisition for construction of drainage and the same was acquired vide award no. 54/1986-87 of village Sahupur. The compensation of said acquired land was paid to the extent of ½ share to Sh. Balram and remaining ½ share was paid to Sh. Pehlad Singh, Satbir Singh, Rishi Pal, Satpal, Smt. Premwati and Smt. Brahma Devi due to the wrong mutation in favour of Sh. Pehlad Singh for the share of Sh. Ram Saran, however the compensation of award no. 17/1986-87 village Sahupur was pad to the extent of Rs.44,271/- to Sh. Pehlad Singh which he had deposited in joint account with Sh. Rishi Pal with State Bank of India, Nangal Dairy and the said amount was later on withdrawn by Rishi Pal and was equally distributed amongst his aforesaid brothers, sister and mother. It is stated that in 1991 the dispute arose when Sh. Pehlad Singh under influence of his family refused to repay/refund the future compensation to the plaintiffs which he had promised and have even paid back to the plaintiffs on earlier occasions, so a suit for declaration to that effect that Sh Pehlad Singh was adopted by CS-515423/16 Page No. 9/59 Sh. Balram was filed being suit no. 571/91 titled as Satibir Singh and Ors Vs. Pehlad Singh. In the said case written statement was filed by Sh. Pehlad Singh on 30.9.1991 wherein he admitted the facts stated in suit no. 571/91 titled as Satbir & Ors Vs. Pehlad and on 21.5.1992 the said suit was compromised as Sh. Pehlad Singh admitted the facts and a compromise decree was passed in favour of plaintiffs and against Sh. Pehlad Singh which decree was never challenged by Sh. Pehlad Singh and Sh. Balram during their lifetime and neither by the legal heirs of Pehlad Singh. It is stated that on 28.10.1992 in execution no. 261/1993 in LAC No. 73/1974 titled as Balram Vs. UOI, Sh. Pehlad Singh appeared before the court of Sh. H.R. Malhotra, the then Ld. ADJ and made a statement not to press his claim of compensation and stated that his share which he got from the estate of Sh. Ram Saran be given to legal heirs of Sh. Ram Saran i.e. Sh. Satbir, Rishi Pal, Satpal, Smt. Premwati and Smt. Brahma Devi in equal share and also admitted that he was adopted son of Sh. Balram and therefore the compensation assessed in the name of Sh. Pehlad Singh as Legal heir of Ram Saran was ordered to be paid to the aforesaid persons CS-515423/16 Page No. 10/59 as per the statement of Sh. Pehlad Singh. As stated on 03.02.1993 and on 26.8.93 in references u/s 18 of LAC Act bearing LAC no. 282/89(733/93) titled as Balram Vs. UOI award no. 54 of 1986-87 and LAC No. 875/93 titled as Balram Vs. UOI award no. 17/1986- 87, application u/s 151 CPC was filed for deletion/strucking off the name of Sh. Pehlad Singh from the reference petition. Both these references were filed jointly by Sh. Balram for half share and legal heirs of Sh. Ram Saran for remaining half share, however on 26.8.1993 in reply to the application u/s 151 CPC Sh. Pehlad Singh opposed the application on the plea that when he made the statement on 21.5.1992 at that time he was not in a fit state of mind though he never challenged the compromise decree dated 21.5.1992 in suit no. 571/91 titled as Satbir and Ors. Vs. Pehlad. It is stated further that on 11.5.99 in reference u/s 18 of LA Act of Award No. 17/86-87of village Shupur, Satbir, the share of Balram was separated from LAC no. 875/93 and on 30.8.2001 reference u/s 18 of LA Act of award no. 17/86-87 of village Sahupur, Satbir, Rishi Pal, Satpal, Smt. Premwati and Smt. Brahma Devi were also separated from LAC No. 875/93. It is stated that on 06.03.2002 Sh. CS-515423/16 Page No. 11/59 Pehlad Singh appeared in the reference court in LAC No. 875/93 titled as Balram vs UOI and admitted that he was adopted by Sh. Balram and also admitted that Sh. Balram on 6.3.1969 had made a registered Will to affirm the adoption in his favour. In the meantime, Sh. Balram died on 27.4.2002 thereafter with prior thinking and bad intentions, on 3.6.2002 Sh. Harish Kumar s/o Pehlad Singh for the first time came into picture just with the intention to harass the plaintiffs and to grab two shares i.e. full share of Balram and 1/6th share of Sh. Pehlad from the estate of Sh. Ram Saran. As stated Sh. Harish moved an application u/o 22 Rule 3 CPC for substitution of his name as legal heir of Sh. Balram on the basis that he has been adopted by Sh. Balram by registered adoption deed dated 1.6.1998 in LAC No. 733/93 and in execution no. 225/2000 titled as Balram Vs UOI where the part enhanced compensation of Sh. Balram was pending realization. It is stated that the said adoption deed for the first time saw the light of the day in the aforesaid proceedings and even the plaintiff for the first time came to know about the said adoption deed. It is stated that the adoption deed was not in accordance with law as at the time of CS-515423/16 Page No. 12/59 his alleged adoption, his age was 24 years which is contrary to Section 10 of Hindu Adoption and Maintenance Act as no person beyond the age of 15 years can be adopted as per the custom prevailing in the community of the parties and by the provisions of Section 4 of Hindu Adoption and Maintenance Act, the usage and custom prevalent before the coming in operation of the Act ceased to apply after coming in operation of this Act. As stated the aforesaid application was decided on 4.3.2011. Further it is stated that the date of alleged adoption of Sh. Harish by Sh. Balram by registered deed is dated 01.06.1998, on the other hand on 25.1.1998 itself Smt. Savita d/o Sh. Pehlad Singh got married and invitation card was sent to Sh. Satbir Singh for the marriage by Sh. Balram in the capacity of being grand father. It is stated that in view of the change in the stand of Sh. Pehlad Singh regarding denial of adoption of himself by Sh. Balram, the plaintiffs namely Sat Pal and Smt. Premwati filed an application for substitution of their names as legal heirs of Sh. Balram in accordance with Hindu Succession Act Schedule A Class (iv) in the aforesaid proceedings. It is further stated that on 8.2.2002 Sh. Pehlad Singh had expired CS-515423/16 Page No. 13/59 and on 23.4.2003 an application was filed by all the legal heirs of Sh. Pehlad Singh except Harish for substitution of the legal heir of Sh. Pehlad Singh on the basis that Sh. Pehlad Singh had executed a registered Will in favour of Smt. Beermati. As stated mutation of the share of Sh. Pehlad Singh in favour of Sh. Satbir, Rishipal, Satpal and Smt. Premwati was also carried as per the order dated 31.5.2004 passed by the then SDM and the order dated 01.06.2004 passed by the then Tehsildar on the basis of compromise deed arrived in suit no. 571/1991, titled as Satbir and others Vs. Pehlad. It is further stated that on 23.11.2009, LAC no. 875/1983 New No. 90/09/89 titled as Balram Vs. UOI, was decided and application for deletion/strucking off the name of Sh. Pehlad Singh from the array of petitioners was dismissed and Smt. Beermati and six daughters were substituted as legal representatives and on 15.2.2010 appeal was preferred in Hon'ble High Court and stay was granted therein on 10.8.2010 by the Hon'ble High Court in LA Appeal No. 320/2010. It is stated that on 4.3.2010, LAC no. 733/93, new no. 91/09/89 titled as Balram Vs. UOI of award no. 54 of 1986-87 of village Sahupur, New Delhi was decided alongwith execution no. CS-515423/16 Page No. 14/59 225/2000 New no. M-06/10 titled as Balram Vs. UOI, the application of the plaintiffs for substation as legal heirs of Sh. Balram was dismissed and Sh. Harish was substituted as the legal heir of Balram while contrary to earlier judgment dated 23.11.2009 in LAC No. 90/09/89 only Smt. Birmati was substited as legal heir of Sh. Pehlad Singh on the basis of said Will by the court of Sh. Arun Bhardwaj, the then Ld. ADJ. It is stated that both above contrary judgments were passed by the same court. Thereafter review application was filed in LAC No. 733/1993, New no. 91/09/89 and in execution petition before the said court of Ld. ADJ Sh. Arun Bhardwaj but the same was dismissed on 22.5.2010 and accordingly appeal was preferred which was bearing no. 847/2010 against the judgment dated 4.3.2010 and order dated 22.5.2010 wherein stay was granted by the Hon'ble High Court on 24.9.2010. It is stated that CM Main no. 1285 of 2010 titled as Satbir & Ors Vs. Harish &bOrs was filed against the order dated 4.3.2010 and 22.5.2010 in execution no. 225/2000 which is still pending in Hon'ble High Court and on 4.3.2010 Hon'ble High Court in both LA appeal no. 320/10 and 847/2010 observed that the reference CS-515423/16 Page No. 15/59 court had no jurisdiction to decide the issues regarding entitlement involved in LAC no. 875/93 and LAC no. 733/93 except enhancement of the compensation, therefore with liberty to initiate appropriate proceedings in civil court within two months, the said appeals were allowed to be withdrawn and it was also observed by the Hon'ble High Court that the findings in the judgment dated 23.11.2009 and 4.3.10 will not bind the parties in the civil proceedings. Thereafter review application was filed against the order dated 4.3.2010 to seek clarifications and on 18.4.2011 review application was allowed and order was passed by Hon'ble Mr. Justice Valmiki Mehta stating that " Surely this a clear cut binding observation of the court that the findings as to respective rights of parties as per the impugned judgment dated 23.11.09 and 04.03.10 will not bind the parties in the independent proceedings which were proposed to be filed. I need not reiterate the same but the Ld. Senior Cl. For appellants states that I must reiterate the same. I frankly fail to understand this approach. However, in the interest of justice, if it is clarified that nothing in the impugned judgment will any manner operate as res-judicata between the parties or bind the CS-515423/16 Page No. 16/59 parties in civil proceedings which are proposed to be initiated. The review application stands disposed off." As stated thereafter in the last week of April, 2011 the plaintiffs have again requested the defendants to amicably settled the aforesaid dispute but they have refused and hence plaintiff was left with no other efficacious remedy except to approach this court by way of filing the present suit and accordingly the present suit was filed.
2. Defendants were served in the matter, however written statements were filed only on behalf of defendant no. 1 on the one hand and defendants no. 3 and 4 jointly on the other hand. Initially defendants no. 2 to 5 and 8 were proceeded ex-parte vide order dated 28.7.2011, however, defendants no. 3 & 4 appeared thereafter and moved an application for setting aside order dated 28.7.2011 which was allowed and proceedings initiated against them were set aside. Defendants no. 6 and 7 did not appear in the matter and their right to file written statement was closed vide order dated 14.3.2012 and later on vide order dated 18.7.2012 they were proceeded ex-parte.
CS-515423/16 Page No. 17/59
3. In the written statement filed on behalf of defendant no.1 preliminary objections were taken to the effect that- suit is not maintainable since the jurisdiction of this court is ousted as per Section 9 of CPC, present suit is barred by limitation, suit is filed by concealment of material facts, suit is bad for non joinder of necessary parties and suit is liable to be dismissed u/o 7 Rule 11 CPC since plaintiffs have deliberately overvalued the suit. On merits it was stated that Sh. Balram never adopted Sh. Pehlad rather Sh. Balram himself denied the adoption of Sh. Pehlad by him in LAC no. 90/09/89(old no. 875/93) wherein he moved an application u/o 1 Rule 2 CPC r/w section 151 CPC for splitting his reference and in the said application he completely denied the factum of adopting Sh. Pehlad and also stated that disputes between Sh. Pehlad and his brothers would take considerable time and will delay the trial of his case. The said application of Sh. Balram was allowed vide order dated 11.5.99 which order also categorically mentions that Sh. Balram denied adopting Sh. Pehlad. It was stated that Sh. Balram adopted Sh. Harish who is biological son of Sh. Pehlad vide a registered adoption deed. It is stated that CS-515423/16 Page No. 18/59 Sh. Balram during his life time filed a ration card as his identity proof for the withdrawal of enhanced amount of compensation in Ex. No. 235/2000(New no. M-06/2000) titled as Balram & Ors. Vs. UOI which does not mention the name of Sh. Pehlad as the son of Sh. Balram. It was denied that Sh. Pehlad promised to return the amount of compensation or any other benefits to the plaintiffs. It is further stated that the mutation in favour of Sh. Pehlad as son of Sh. Ram Saran has never been challenged by the plaintiffs. However, after the land was acquired, the plaintiffs were led by greed and in order to grab entire benefits arising out of the land of the share of Sh. Ram Saran, the plaintiffs concocted stories for grabbing the share of Sh. Pehlad. Contents of para no. 9 were denied and it is stated that even in the order of Land Acquisition Collector on page no. 9 Pehlad father's name is stated to be Sh. Ram Saran and mere relinquishment doesn't prove alleged adoption of Sh. Pehlad by Sh. Balram. It is further stated that the order of Nodal Officer bearing no. 80/04 dated 10.12.2004 has already been recalled vide order dated 16.11.2006 bearing no. 116/06 and vide order dated 4.3.2011 Sh. Arun Bhardwaj, the then CS-515423/16 Page No. 19/59 Ld. ADJ had allowed the application u/o 22 Rule 3 CPC moved by Sh. Harish for impleading him as the LR of Sh. Balram and though plaintiffs have filed CM(M) No. 1285/2010 but the same was dismissed in default on 13.1.2011 and later on was again listed for admission. It is stated that plaintiffs cannot challenge the order dated 4.3.2011 by way of present proceedings since it has already been challenged in CM(M)1285/2010. It is also stated that defendant had also filed a civil suit for allotment of a plot under the rehabilitation scheme bearing no. CS(OS) No. 320/2010 which is pending adjudication and in view of the admission of the suit the civil suits filed by Smt. Beermati, Sh. Harish, the present suit is not maintainable since it involves questions of law and facts. It is also stated that Sh. Pehlad was not paid compensation in the half share of Sh. Ram Saran due to any alleged wrong mutation entries but was rightly paid the compensation being one of the legal heirs of late Sh. Ram Saran and it is denied that Sh. Rishipal and Ors.(plaintiffs) ever withdrew the amount of compensation and distributed it among themselves. Suit for declaration no. 571/91 as stated was filed with malafide intentions and with the sole purpose CS-515423/16 Page No. 20/59 of grabbing the share of Sh. Pehlad and therefore deliberately Sh. Balram was not made a party to the said suit who had allegedly adopted Sh. Pehlad. Furthermore, the said suit as stated was not maintainable in civil court since the land of village Sahurpur already stood acquired and joint references under section 18 of the LA Act by the plaintiffs including Sh. Pehlad as son of late Sh. Ram Saran for their half share and half share of Sh. Balram was filed before the LAC which were duly forwarded by the LAC to LAC court for adjudication and which were denied by the Ld. Trial Court by orders dated 23.11.2009 and 4.3.2010. Further it is stated that land of village Sahupur already stood acquired by the Land Acquisition Collector vide Award Nos 17/1986-87 and 54/1986-87 and thus the jurisdication of the civil court was barred under section 9 of the Civil Procedure Code and compromise decree dated 21.5.1992 therefore was a nullity in the eyes of law. Furthermore, Sh. Balram was deliberately not made party in the suit and compromise and therefore the question of challenging the same by Sh. Balram did not arise. It is also stated that in one breath the plaintiffs assert that Sh. Pehlad and Sh. Satbir CS-515423/16 Page No. 21/59 compromised in suit no. 571/91 on which the plaintiffs have heavily relied upon in order to obtain the benefits of compensation etc. from the share of Sh. Pehlad and in the present case plaintiffs themselves admit/assert in para no. 21 that Pehlad was not in a fit state of mind at the time of giving the statement in the aforesaid suit which clearly establishes the fact that any statement given by Sh. Pehlad could not be relied upon including the alleged statement by Sh. Pehlad stating that he was allegedly adopted by Sh. Balram. It was stated that the present suit is barred by limitation that plaintiffs themselves admitted that they came to know about the adoption of Sh. Harish by Sh. Balram after the death of Sh. Balram and the present suit has been filed in the year 2011 i.e. almost after eight years of its alleged knowledge though the plaintiffs were aware of the adoption much prior to the death of Sh. Balram. It is also stated that the defendant no. 1 had never claimed the share of Sh. Pehald since after his adoption by Sh. Balram he did not any right, title or interest in the estate left by his biological father namely Sh. Pehlad. It is also denied that the adoption of defendant no. 1 is not in accordance of Section 10 of the Hindu Adoption and CS-515423/16 Page No. 22/59 Maintenance Act since as per Section 16 of the said Act, if adoption takes place by way of a registered document, the court shall presume it to be in compliance with the provisions of the act until and unless it is disproved. It is also stated that only Sh. Satpat and Smt. Premwati had filed the alleged application for substation of their names as LRs of Sh. Balram and the plaintiffs no. 1 and 2 as well as Pehlad never filed any application for substitution of their names as LRs of Sh. Balram only because they knowing very well that the defendant no. 1 was adopted son of Sh. Balram. As stated the Land Acquisition Collector also filed a verification report in which only the name of defendant no. 1 was mentioned as LR of Sh. Balram and the plaintiffs never filed any objection to the said LR report and the same is unrebutted till date. Rest of the contents of the plaint were denied and it is prayed that the suit be dismissed.
4. Joint written statement was filed by defendants no. 3 and 4 in which it was averred that the suit of the plaintiff as far as it relates to defendant no. 3 and 4 is not maintainable and liable to be rejected as they are neither necessary nor proper party to the CS-515423/16 Page No. 23/59 present suit. It is stated that perusal of the prayer would show that the whole relief is directed against defendant no. 1 and not defendant no. 3 and 4 in any manner whatsoever. It was also stated that even otherwise the present suit of the plaintiff challenging the adoption deed of Sh. Harish date 1.6.98 is barred by time. It is also stated that plaintiff has referred to a Will of late Sh. Pehlad Singh in favour of Birmati in para no. 28 of the plaint which Will is a result of fraud and was not validly executed Will of late Pehlad Singh and signatures of defendants no. 3 and 4 alongwith others were obtained by Sh. Harish on fraudlent misrepresentation and defendants no. 3 and 4 had no reason to disbelieve or distrusting and in fact has come to their notice hence by way of separate suit they are challenging the same. It is prayed that suit of the plaintiff be dismissed.
5. Replications to the respective written statements of defendant no. 1 and defendants no. 3 & 4 were filed in which contents of the plaint were reiterated and those of the written statement were denied. CS-515423/16 Page No. 24/59
6. On the pleadings of the parties following issues were framed vide order dated 18.7.2012:-
1) Whether Pehlad Singh was adopted son of late Balram?OPP
2) Whether defendant no. 1 was adopted by late Balram? OPD-1
3) Whether the alleged adoption of defendant no. 1 by late Balram is in accordance with provisions of the Hindu Adoption and Maintenance Act, 1956?(OPD-1)
4) Whether defendant no. 2 to 7 are entitled to any share in the estate of late Ram Saran?OPD-3 & 4
5) Whether the suit is barred under Section 9 CPC?OPD-1,3 & 4
6) Whether the suit is barred by Limitation? OPD-1, 3 & 4
7) Relief.
7. In evidence, plaintiff produced 8 witnesses who are as follows-
PW-1 is Rishipal Sehrawat i.e. plaintiff no. 2. He reiterated the case of plaintiffs as set out in the plaint and got documents exhibited as Ex. PW-1/1 to PW-1/25. It is pertinent to mention here that all documents except document Ex. PW-1/9 were objected to by the counsel for defendant no. 1 on the ground of mode of proof CS-515423/16 Page No. 25/59 and Ld. Cl. for plaintiff did not object to said objection and stated that he will prove the said documents as per law by summoning original records and accordingly all documents except Ex. PW-1/9 were assigned exhibit numbers only as mark of identification and documents were observed by the court to remain as not proved.
PW-2 Pramod Kumar is Inspector Food & Civil Supply who was a summoned witness and he stated that records relating to ration card no. 402264 dated 1.1.1988 issued in favour of Sh. Bal Ram s/o Bhollar is not available in his office and is weeded out. Letter dated 29.1.2015 was stated to be signed by Sh. Raj Kumar Uppal and was marked as Ex. PW-2/1 and Copy of letter dated 18.6.2013 was marked as Ex. PW-2/2.
PW-3 is Taruna Jr. Judicial Assistant, RFA, Delhi High Court who had produced the record in LA(Appeal no. 320/2010) in case titled as Satbir Singh & Ors. Vs. Union of India & Ors. She had brought originals of order dated 10.8.2020, 4.3.2011 and order dated 18.4.2011 which have already been Ex. P-9, Ex. P-16 and Ex. PW-1/23.
PW-4 is Sh. Vikram, Judicial Assistant from Record Room, CS-515423/16 Page No. 26/59 Civil, Tis Hazari who stated that judicial file of suit no. 571/1991 tiled as Satbir Singh Vs. Phelad decided on 21.5.92 by the court of Sh. Nepal Sing, the then Ld. Civil Judge, Delhi is not available and letter dated 23.1.2015 to that effect by Branch Incharge and a copy of robakar were marked Ex. PW-4/1(colly).
PW-5 is Heela Lal Preservation Assistant from Department of Achieves who had brought original Will dated 06.3.1969 executed by Sh. Balram and copy of the same was marked as Ex. PW-5/1.
PW-6 is Randhir Singh son of late Bhim Singh and nephew of Smt. Brahma Devi who got married to Ram Saran. He stated that Sh. Ram Saran had one son from his first wife Smt. Bodha namely Pehlad and Sh. Balram brother of Ram Saran remained unmarried during his lifetime. He supported the case of plaintiffs and deposed on the similar lines as that of PW-1.
PW-7 is Dharmender Dagar, LDC from office of LAC.
He certified that Ex. P-1 which was certified copy of order no. 80/2004 passed by Sh. S.S. Knawat on 10.12.2004 was true and CS-515423/16 Page No. 27/59 correct. He stated that he had already seen document already Ex. PW-1/5 which is extract of award no. 16/1986-87 of village Nangal Dewat i.e. the list of owners prepared by office from sl. No. 541 to 563 of the original and had also seen document Ex. PW-1/4 i.e. notice u/s 9 of LA Act issued to Sh. Pehlad which are also true and correct copy. He had also seen Ex. PW-1/3 and stated the same to be true and correct copy. He has stated Ex. PW-1/8 and Ex. PW-1/7 and stated them to be true and correct copies.
PW-8 is Sh. Ravinder Kumar, Patwari from SDM Vasant Vihar office who brought khatoni register for the year 1989-1990 of village Nagaldevat relating to Khata Khatoni no. 20/19 and stated that Ex. PW-1/25 is the certified/attested copy of that khatoni from the original and same is true and correct.
8. It is pertinent to mention here that when the matter was at the stage of DE defendants no. 2 and 8 moved an application u/o 9 Rule 7 CPC and defendants no. 3 to 7 i.e. Darshna, Suresh, Savita, Sunita and Krishna also appeared before the court but they did not CS-515423/16 Page No. 28/59 move any application u/o 9 Rule 7 CPC. The application moved by defendants no. 2 and 8 was allowed vide order dated 21.11.2020 and though other defendants no. 3 to 7 did not move an application u/o9 Rule 7 CPC but still they were allowed to join the proceedings. Thereafter defendant no. 2 and 8 did not appear and defendants no. 3 to 7 vide their statements recorded on 11.12.2020 stated that they did not want to engage any advocate and whatever they want to say they will say in their individual capacity in DE. Their statements were accordingly recorded as DW-2 to DW-5.
9. In defence, defendant produced nine witnesses who are-
DW-1 is Sh. Harish i.e. defendant no. 1 himself who reiterated his case as set out in his written statement. He relied upon documents filed by plaintiff i.e Ex. P-10/D2, Ex. P-8/D3, Ex. P-13/D4, Ex. PW-1/17/D-5. He also produced certified copy of order dated 11.5.1999 which was Ex. DW-1/A and copy of application u/o 1 Rule 3A filed by Balram which was Mark A(the said documents were objected to by counsel for plaintiff on the ground that said documents were filed without following due process of law).
CS-515423/16 Page No. 29/59
Two witnesses were examined as DW-2 i.e. Sh. Raj Kumar from Post MTS office of Sub Registrar Kapashera and Smt. Savita Kumari.
DW-2 Sh. Raj Kumar from Post MTS office of Sub Registrar IX, Kapashera had brought original of adoption deed dated 01.06.1998 and stated the same was registered vide registration no. 472 in additional book no. III Vol. 7 on pages 182 to 183 registered on 3.7.1998 and the true copy of the same was Ex. DW-2/1.
DW-2 Smt. Savita Kumari was one of the daughters of Beermati and sisters of Krishna. She stated that she did not want to engage any advocate and whatever she says the same will be in her individual capacity. She supported the case of defendant no. 1 and stated that her dadaji Sh. Balram had taken Harish on adoption. She also stated that her father Sh. Pehlad remained mentally disturbed since her childhood.
Similarly, two witnesses were examined as DW-3. First, DW-3 is Ms. Nutan Sangwan, JJA from record room(sessions), Dwarka(though her no. is written as PW-3 but that seems to be a typographical error and her no. has been considered as DW-3). She CS-515423/16 Page No. 30/59 had brought summoned record i.e. the original file of LAC no. 90/09/89 titled as Balram & Ors Vs. UOI and certified copies of reference petition u/s 18 of LAC Act running into 4 pages was Ex. DW-3/1, certified copy of section 19 statement running into 5 pages was Ex. DW-3/2, certified copy of application u/o 1 Rule 3 A alongwith support affidavit was Ex. PW-3/3, certified copy of LR report of Pehlad was Ex. PW-3/4, certified copy of reply to application u/s 151 CPC running into three pages was Ex. DW-3/5, certified copy of statement and cross examination of Ram Kishan running into two pages Ex. DW-3/6, certified copy of statement and cross examination of Rajpal Singh was Ex. DW-3/7, certified copy of order dated 11.5.99 was Ex. DW-3/8.
Another witness who was examination as DW-3 is Smt. Krishna wife of late Om Prakash who is daughter of Beermati and Pehlad. She supported the case of defendant no. 1 and stated that her dadaji Sh. Balram had taken Harish on adoption. She also stated that her father Sh. Pehlad remained mentally disturbed since her childhood.
DW-4 is Suresh wife of Sh. Jagat Singh and one of daughters CS-515423/16 Page No. 31/59 of Beermati and Pehlad. She also deposed on the lines of DW-3 Krishna and supported the case of defendant no. 1.
One more witness i.e. Sh. Surender Yadav, Patwari from LAC office was examined as DW-4 who had brought the original summoned record i.e. naksha muntazamin with respect to award no. 16/86-87 of village Nangal Devat and at item no. 58 name of Sh. Prahlad Singh s/o Sh. Ram Saran is mentioned with respect to khasra no. 1247/5/2 measuring 17 biswas. The share of Prahlad Singh was 1/12th and copy attested by Sh. Vikas Goyal, Branch Incharge was Ex. DW-4/1. He had also seen the entry at sr. no. 596 of the said naksha muntazin and stated that name of Sh. Ram Sara s/o Sh. Bhola is mentioned at serial no. and the khasra no. mentioned against the said entry is 1243, land is measuring 551 sq. yards and share is 1/4th and the copy of the same was Ex. DW-4/2.
DW-5 is Smt. Sunita. She is also one of the daughters of Beermati and Pehlad. She also deposed on the lines of DW-2 and DW-3 Krishna.
DW-6 is Ms. Nutun Sangwan, JJA from Record Room(Sessions), Dwarka who had brought the summoned record CS-515423/16 Page No. 32/59 i.e. judicial file Ex. No. 25/10 having LAC M No. 12/09/08 titled as Balram Vs. UOI which was adjourned sine die on 23.9.2011 vide goshwara no. 32/D and ordersheets dated 11.7.2003, 16.9.2009, 18.1.2010, 26.2.2010, 4.3.2010, 23.8.2010, 3.8.2011 and 23.9.2011 were collectively Ex. DW-6/1, copy of original record of statement of Sh. Deepak Kumar dated 31.1.2003 was Ex. DW-6/2, copy of statement of Smt. Birmati dated 15.10.2009 alongwith copy of Adhar card is Ex. DW-6/3, statement of Ms. Vandana Kumari dated 15.10.2009 alongwith copy of her canteen smart card is Ex. DW-6/4, LR report of Sh. Pehlad is Ex. DW-6/5, LR report of Sh. Balram s/o Sh. Bholar is Ex. DW-6/6 and statement of Smt. Birmati dated 9.10.2002 is Ex. DW-6/7.
DW-7 is Ms. Taruna, SJA, RFA Branch, Hon'ble High Court who brought original summoned record file of case titled as Balram Vs. UOI bearing goshwara no. 170/D decided vide judgment dated 4.32010. The LAC no. 91/09/89 and the old LAC no. of this file was 733/99. In the statement copy of judgment dated 4.3.2010 was Ex. DW-7/1, copy of statement and cross examination of Sh. S.K. Rout, dated 6.10.2004 is Ex. DW-7/2, CS-515423/16 Page No. 33/59 copy of order dated 11.5.99 in LAC no. 733/93 and 875/93 were Ex. DW-7/3, statement u/s 19 of LA Act was Ex. DW-7/4, copy of original adoption deed dated 1.6.98 was Ex. DW-7/16, LR report of Sh. Balram filed by Naib Tehsildar was Ex. DW-7/7 and reply filed by Sh. Pehlad Singh dated 26.8.97 was Ex. DW-7/8.
10. I have heard Counsels for both parties as well as perused the record. My issue-wise findings are as under:-
11. Issue no. 1- Whether Pehlad Singh was adopted son of late Balram?OPP It is pertinent to mention here that though the plaintiffs have not made any prayer clause of the plaint seeking declaration to the effect that Pehlad Singh was adopted son of late Balram but since it forms the part of the pleadings and this issue was framed by the Hon'ble Justice Ms. Hima Kohli vide order dated 18.7.2012, hence it is necessary to decide this issue. Plaintiffs have contended that Pehlad Singh though was son of Ram Saran from his first marriage but he was adopted by Balram in the year 1952 whereas defendant no. 1 has contended that CS-515423/16 Page No. 34/59 Pehlad was never adopted by Balram. In support of said contention plaintiffs have relied upon PW-1/10 to Ex. PW-1/14 i.e. plaint, written statement, compromise deed, statement of Pehlad and compromise decree in case no. 571/91 titled as Satbir Vs. Pehlad and have contended that as per the said documents admission of Pehlad himself had contended that he was adopted by Balram. It is argued that till date there is no challenge this compromise decree thus the same has attained finality. Ex. PW-1/15 certified copy of statement of Pehlad in the court of Sh. H.R. Malhotra(later on Hon'ble Justice) in execution petition no. 261/1993 titled as Balram Vs. UOI is also relied upon and it is stated that vide said statement Pehlad stated that his claim for compensation which he got from the estate of Ram Saran be given to legal heirs of Ram Saran namely Sh. Satbir, Rishipal, Satpal, Smt. Premwati and Smt. Brahma Devi in equal shares as well as admitted his adoption by Balram. The said statement as stated was also counter signed by Sh. Balram which reflects that the said statement was accepted by him also. Further, vide his statements Ex. PW-1/18 dated 21.3.2001 and Ex. PW-1/19 dated 6.3.2002 Pehald again reiterated CS-515423/16 Page No. 35/59 that he was adopted by Balram. It is also argued by Ld. Cl. for plaintiffs that in para no.9 of the plaint they have asserted that in response to the notice u/s 9 and 10 of LAC the legal heirs of Sh. Ram Saran excluding Sh. Pehlad Singh had filed their claim to the extent of ½ share and Sh. Balram with Sh. Pehlad Singh and his wife Birmati had filed their claim to the extent of ½ share and defendant no. 1 in corresponding para in written statement have given an evasive reply to the same which proves their contention. It is true that there is an evasive reply of the defendant no. 1 in corresponding para of his written statement to the para no. 9 of the plaint. On the other hand defendant no. 1 had relied upon Ex. DW-3/2 which is section 19 statement prepared and forwarded by Land Acquisition Collector wherein Balram is shown in ½ share and Pehlad Singh alongwith plaintiffs and Smt. Birmati widow of Ram Saran were shown in other ½ share as LRs of late Ram Saran. It is submitted by Ld. Cl. for defendant no. 1 that this defies all the documents produced by PW-7 i.e. PW-1/5 extract of award no. 16/86-87 of village Nangal Dewat wherein, in the list of owners at serial no. 561 Pehlad is allegedly shown as son of Balram, PW-1/4 CS-515423/16 Page No. 36/59 certified copies of notices, PW-1/8 survey reports, Ex. Pw-1/7 copy of structure award. It is stated that section 19 statement filed by LAC is the conclusive document prepared by the department showing that Pehlad Singh was the son of Ram Saran and not Balram as alleged. This is a very strange argument advanced by counsel for defendant no. 1 since if section 19 statement filed by LAC is a conclusive proof of the fact that Pehlad Singh was son of Ram Saran and not Balram then why the award Ex. PW-1/5 or the notices Ex. PW-1/4, survey report Ex. PW-1/8 and structure award Ex. Ex. PW-1/7 are not conclusive proof of the fact that Balram adopted Pehlad. Why the one document which supports the case of defendant no. 1 prepared by the same department can be relied upon as a proof whereas other documents which are against the case of defendant no. 1 cannot be considered as a proof of case of plaintiffs. There are documents in the records of LAC which shows Pehlad to be son of Balram as well as Pehlad to be son of Ram Saran, hence these documents are not made basis to reach final conclusion since there are other documents i.e. own statements of Pehlad as well as Balram which can throw more light CS-515423/16 Page No. 37/59 on the issue. Moreover, the court has to adjudicate on the issues of the present matter and not the revenue department. Had revenue department decided all the issues between the parties then there was no need for adjudication by this court and that is why the present suit is before this court. Besides that, it is also not made out as to who got prepared Section 19 statement or other documents and on whose instance they were prepared and whether the source of said documents was genuine / authentic is also not made out and rather it is not explained as to what is source of entries. So, now we have Ex. PW-1/10 to Ex. PW-1/14 which are copy of plaint of case titled as Satbir Vs. Pehlad in suit no. 571/91, copy of written statement, certified copy of compromise deed, certified copy of statement of Pehlad dated 21.5.1992 and copy of compromise decree statement of Pehlad made before the court. Further, we have statements of Pehlad made in case bearing no. LAC-875/93 Ex. PW-1/18 dated 21.3.2001 and PW-1/19 dated 16.3.2002. In all these statements supra Pehlad had admitted that he was taken in adoption by Balram. However, defendant no. 1 placed reliance upon Ex. PW-1/17/D5 which is a reply to the application of Satbir CS-515423/16 Page No. 38/59 filed by Pehlad in the court of Sh. J.P Singh in case titled as Balram Vs. UOI wherein allegedly Pehlad claimed that Sh. Balram never adopted him. At the first place Ex. PW-1/17/D5 is just an application whereas Ex. PW-1/13, Ex. PW-1/18 and Ex. PW-1/19 are the statements which were made by Pehlad before the respective courts and there is no doubt about it that the statements made before the courts would definitely carry more weightage as a conclusive proof than mere an application. Not only this based on statement of Pehlad Ex. PW-1/13 a compromise decree Ex. PW- 1/14 was passed in suit no. 571/91 and there is nothing on record which suggest that the said decree was ever set aside by any court or that Pehlad ever challenged the said decree and only the contention is raised by the defendant no. 1 that Pehlad in reply Ex. PW-1/17/D-5 stated that after his accident he was suffering from loss of memory and had no knowledge of making any statement in the court with regard to adoption. DW-1 Sh. Harish also deposed regarding the loss of memory by Pehlad after accident and it is argued that since Sh. Pehlad was suffering from loss of memory therefore taking advantage of the same his statement Ex. PW-1/13 CS-515423/16 Page No. 39/59 was obtained by the petitioners in the court. However, the said stand taken by defendant no. 1 has been demolished by the statement Ex. DW-3/7 dated 28.8.2002 of own witness of defendant namely Sh. Raj Pal Singh who categorically stated that "Pehlad was serving in Army and after leaving Army he has been keeping in different health. He was mentally alert." From the said statement though word 'different' is not making the sense but definitely the sentence following it makes it clear that Pehlad was mentally alert. Even otherwise no medical documents of Sh. Pehlad have been placed or proved on record which could suggest that Pehlad was mentally disturbed and accordingly this defence of defendant stands falsified. Further, statements Ex. PW-1/18 and Ex. PW-19 made by Sh. Pehlad before the respective courts pertains to year 2002 whereas the reply Ex. PW-1/17/D-5 is prior in time. It is further argued by defendant no. 1 that Sh. Balram vide application Ex. DW-3/3 u/s 151 CPC he submitted that the fact about adoption of Pehlad by him is wrong and denied and is cooked up by petitioners. It is further stated that said application Ex. DW-3/3 was allowed vide order dated 11.5.1999 Ex. DW-3/5 CS-515423/16 Page No. 40/59 by the court of the then Ld. ADJ Sh. J.P. Singh and claim of Balram was separated from other petitioners. Plaintiffs on the other hand relied upon statement of Pehlad Ex. PW-1/15 made before the court of Sh. H.R. Malhotra and stated that the said statement was counter signed by Sh. Balram. Though it is correct that the Ex. PW-1/15 pertain to year 1992 whereas Ex. DW-3/3 pertains to year 1997 but at the same time there is nothing on record to show that the document Ex. PW-1/15 was ever challenged by either Pehlad or Balram and this statement given before the court has attained finality and mere taking of an opposite stand in an application by Balram is not enough to falsify his counter signed statement of Pehlad Ex. PW-1/15 which was made before the court and had attained finality. Even otherwise the application Ex. DW-3/3 is a solitary evidence in comparison to the other facts, circumstances and evidence. It is also evident on record that Pehlad till the year 2002 was taking stand that he was adopted by Balram. Not only this, there is also on record one marriage invitation card of Ms. Savita, one of the daughter of Pehlad which is Ex. P-4(colly) and as per the same Sh. Balram Singh was shown CS-515423/16 Page No. 41/59 as grandfather of Savita meaning thereby that her father Pehlad Singh was adopted by Balram. Even during evidence Smt. Savita who was DW-2 deposed that her mother namely Beermati, her father Pehlad Singh and her dadaji Balram and they six sisters were living jointly in Nangal Dewat. As per her Harish was also living with them. The said statement of DW-2 clearly acted as last nail in the coffin of case of defendant no. 1 since she clearly stated Sh. Balram as her dadaji and also that family of Pehlad and Balram were staying together. Though the counsel for defendant no. 1 has argued that it is not made out who has got this invitation card printed but this is not tenable on two grounds, first of all if defendant no. 1 was having some other card then he should have produced the same on record to rebutt the presumption and secondly initial onus has been discharged by plaintiff and again the ball was in court of defendant no. 1 to disprove the same. Hence, totality of the circumstances as discussed above clearly reflect that Pehlad was adopted by Balram but later on both Pehlad and Balram tried to take different track and probability of greed of usurping the share from the estate of Ram Saran cannot be ruled out. Rather the CS-515423/16 Page No. 42/59 plaintiffs could have restrained their claim only by claiming that Harish is not adopted son of Balram and in that eventuality if that declaration is granted then plaintiffs would have been entitled to 1/5th share each because half of the portion of Balram would also have devolved upon them, however same was not done by plaintiffs. Rather plaintiffs have claimed that Pehlad be declared as adopted son of Balram and in that eventuality they will not get any share out of the share of Balram and would rather be entitled to 1/8th share meaning thereby that they have reduced their claim by claiming adoption by Balram qua Pehlad which shows that there is no greed involved on the side of plaintiffs. Further statement of PW-6 Randhir is also on record whereby he stated that Ram Saran had not attended the marriage of Pehlad since it was done by Balram. Ram Saran was biological father of Pehlad and no biological father would not attend the marriage of his own son if the son was part of the family and was not given in adoption unless it has come on record that there was some conflict between father and son which is not the case here. Accordingly, in view of the above it is held that Pehlad was adopted by Balram and this issue is CS-515423/16 Page No. 43/59 decided in favour of the plaintiffs and against the defendants.
12. Issue no. 2 & 3- Whether defendant no. 1 was adopted by late Balram? OPD-1 & Whether the alleged adoption of defendant no. 1 by late Balram is in accordance with provisions of the Hindu Adoption and Maintenance Act, 1956?(OPD-1) Both these issues are taken up together being interconnected. It is the case of defendant no. 1 that he was adopted by Sh. Balram as per customs prevalent in Jaat community vide registered adoption deed Ex. DW-2/1 dated 1.6.1998 which was proved by DW-2 Raj Kumar from Sub Registrar. It is also stated that Ex. DW-7/7 is the LR report of Sh. Balram dated 27.8.2004 prepared by Naib Tehsildar filed in the court of Sh. T.R. Naval, the then Ld. ADJ wherein only defendant no. 1 namely Sh. Harish s/o Balram is shown as his only legal heir. On the other hand plaintiffs have disputed the said adoption deed and stated the same to be null and void on the ground that at the time of alleged adoption of Harish he was more than 15 years of age(factum of age at the time of adoption is even admitted by defendant no. 1 in para no. 24 of CS-515423/16 Page No. 44/59 written statement) which is in violation of Section 10 of Hindu Adoption and Maintenance Act as there is no custom of adopting child of more than 15 years in the community of parties to the suit. Date of birth certificate of defendant no. 1 Harish has been brought by him during his evidence and the same was ex. DW-1/X-3 as per which his date of birth was 8.8.1974 meaning thereby it is proved on record that Harish was around 24 years of age at the time of his alleged adoption by Balram. Counsel for defendant no. 1 has argued that since there was custom in Jaat community to which defendants and plaintiffs belong that even a child more than 15 years can be taken in adoption, hence adoption of Harish is not void and is covered under Section 10 condition (iv) of Hindu Adoption Act which says "He or she has not completed the age of fifteen years, unless there is custom or usage applicable to the parties which permits person who have completed the age of fifteen years being taken in adoption". From the above, it is clear that alleged adoption of Sh. Harish by Balram was on the ground of custom prevailing in the Jaat community to which both parties belong and certainly the alleged adoption vide adoption deed Ex. CS-515423/16 Page No. 45/59 DW-2/1 is not as per law of adoption. Now this court has to see whether defendant no. 1 has been able to prove that there was any such custom prevailing in Jaat community to which the parties belong. During cross examination DW-1 i.e. defendant no. 1 Harish had stated that there is customary law with regard to adoption in their community but he could not recollect the name. He further stated that he was talking about that custom whereby a boy of more than 15 years can be taken in adoption, however at the same time he stated that he did not attend any such functions and heard about it from his ancestors. He had also stated that they had invited brotherhood as well as neighbourhood during the adoption ceremony and Ram Kishan s/o not known and Raj Pal s/o Pokhar were invited but he could not say whether his immediate neighbor came or not. If there was any such custom prevalent in the society of defendant no. 1 where a boy of more than 15 years of age could be taken in adoption and if he was adopted by Balram as per the said custom then he should have examined some independent witnesses from his society who could have thrown light on the prevalence of such custom but the same was not done by defendant CS-515423/16 Page No. 46/59 no.1. Further, defendant no. 1 stated that some ceremony took place at the time of adoption but no witness has been produced on record by him who attended the said function and could have authenticated the stand of defendant no. 1. It is also pertinent to point out here that the adoption deed Ex. DW-2/1 also does not mention that the alleged adoption of Harish was as per custom and rather it says that it is done as per Hindu shastra. Neither the adoption as per custom was pleaded during the pleadings nor the same was proved by leading any clear and unambiguous evidence. Further, it is argued by Ld. Cl. for defendant no.1 that the submission and assertion of plaintiffs alleging that Pehlad was adopted by Balram goes on to prove that there is a custom in the society of parties that a person of more than 15 years of age can be taken in adoption. Statement of Pehlad Ex. PW-1/9 dated 6.3.2002 is on record as per which he stated his age to be 60 years meaning thereby that in the year 1952 Pehlad was about 10 years. It is already held that Pehlad was taken in adoption by Balram and as far as year of adoption is concerned there is categorical statement of PW-6 Randhir Singh (who is cousin of defendant no. 1 since CS-515423/16 Page No. 47/59 mother of defendant no. 1 was his bua) that in the year 1952 Pehlad was taken in adoption by Balram. His testimony on this point remain unrebutted since no question was put to him as to when or in which year Pehlad was taken in adoption by Balram. Though he stated that Balram never asked for adoption of Pehald in his presence but he voluntarily stated that he adopted Pehlad. He even stated during cross examination that he belong to Jaat community which only takes in adoption a child upto age of 15 years as per their custom. PW-6 was not related to plaintiffs and rather was related to defendant no. 1 who categorically stated in cross examination that he had come to depose voluntarily and to avoid injustice to plaintiffs. There is nothing on record to show that Pehlad was not 10 years of age in the year 1952. Accordingly the above argument of Ld. Cl. for defendant no.1 also does not hold water and hence, it is observed that the alleged adoption of Sh. Harish by Balram is not proved to be through any custom prevailing in the society to which parties belong and as already observed it was also not as per law of Adoption. Not only this the adoption deed Ex. DW-1/2 also cannot be given credence since CS-515423/16 Page No. 48/59 Harish was the only son of Pehlad and Birmati besides his sisters and it is really doubtful that a person would give his only son in adoption and that too at very late stage of his life when he cannot have any other son. Further, as per adoption deed Ex. DW-1/2 Balram was about 80 years of age at the time of adoption and a question definitely comes to the mind as to why a man who remained unmarried throughout his life waited for 80 years to take decision of adoption of Harish when it was available to him earlier also when Harish was less than 15 years. Moreover, one Will Ex. PW-5/1 is on record which was executed by Balram in favour of Pehlad in the year 1969 and defendant no. 1 during his cross examination admitted the said document being executed by Balram in respect of his properties in favour of Pehlad. In the said Will it is clearly mentioned that Pehlad was taking care of Balram and he bequeathed all his properties in favour of Pehlad after his death through the said Will. It is argued by Ld. Cl. for defendant no. 1 that the said Will in favour of Sh. Pehlad rather shows that Sh. Balram wanted to give his estate either to Pehlad or to his male child therefore he took Harish in adoption. This argument of Ld. CS-515423/16 Page No. 49/59 Cl. for defendant no. 1 itself raise a very important question that as to when Balram did not adopt Sh. Pehlad for whom he had so much of love and affection that he bequeathed all his properties to him vide said Will then why he did not choose to adopt Pehlad at first place and instead adopted Sh. Harish that too at such later stage of his life. This definitely raise suspicion over the execution of adoption deed and intention behind its execution cannot be given a clear chit. It is also a point to be noted that the said Will was never challenged by Harish and rather he admitted it. If Harish was adopted son of Balram then he should have challenged the Will since by virtue of that Will Balram had entrusted whole of his estate upon Pehlad and definitely it would have affected the share of Harish but that was not done. The defendant no. 1 has argued that that this Will was executed before he was adopted by Balram therefore said Will has no bearing on his case, however I disagree with the same since Balram during his lifetime could have revoked that Will and could have executed a fresh Will in favour of Harish, if he had adopted Harish but that was not done. The adoption deed also does not mention the date of birth of Harish and it is CS-515423/16 Page No. 50/59 unexplained on record as to why the date of birth of Harish was not disclosed and probably that was done so as to avoid any questions on adoption by the concerned Govt. authority. Further, there is Ex. DW-1/X-4 on record which is driving licence of Sh. Harish which was issued to him on 26.7.2005 which also mentions the name of Sh. Pehlad Singh as father of Harish. It remained unexplained on record as to when Sh. Harish was taken in adoption in the year 1998 then why he himself choose to write his father name as that of Sh. Pehlad instead of Sh. Balram in the year 2005. The abovesaid only reflects that Sh. Harish himself did not honor the adoption deed and the same was not given any effect to. Even defendant no. 1 did not brought his current adhar card, voter ID card or his passport despite asking and question why these documents were withheld by defendant no. 1 and why they have not been produced on record remained unexplained. Defendant no. 1 Harish also did not produce his marriage card despite asking by the court. It is not made out whether marriage of Harish was performed by Balram or Pehlad and if he was adopted by Balram then Balram would have performed it and adverse inference is taken for not producing his CS-515423/16 Page No. 51/59 marriage on record. Reliance is placed upon AIR 1968 SC page 1413 Gopal, Krishnaji Ketkar vs. Mahomed Haji Latif & Ors. and AIR 1988 Delhi 332 wherein it was held that when initial onus has been discharged by one party then other party is bound to suffer if it fails to produce certain documents which are in its possession irrespective of onus of proof and adverse inference has to be drawn. It is also to seen that if Harish was adopted by Balram then there must be severance from his earlier family i.e. Pehlad's family but that did not happen rather there was severance between Pehlad and Ram Saran's family since it has come on record that he was staying separately from Ram Saran's family and hence it also reflects upon the conduct of defendant no. 1 as well as shows that the adoption deed was not acted upon. Reliance is placed upon 1967 AIR 119, 1962 SCR(1) 845 Inder Singh vs. Gurdial Singh wherein it was held that " There is ample authority for holding that the appointment in order to be valid must be made in some unequivocal and customary manner and the execution of a deed coupled with a long course of treatment has always been recognized as one of the modes of manifestating such an CS-515423/16 Page No. 52/59 appointment." Further it was held in the judgment supra that "the execution of a deed by the adoptive father was not enough and continuous subsequent treatment not having been proved the adoption was not established" and that "all that was necessary to constitute an adoption under customary law was the clear expression of intention on the adoptive father's part to adopt the boy concerned as his son, and the execution of the deed of adoption coupled with a clear declaration before a registering officer and continuous subsequent treatment as adopted son were sufficient manifestation of the intention." Ld. Cl. for plaintiff has relied upon Ex. DW-1/X-1 and Ex. DW-1/X-2 and submited that these documents show that when Balram died in the year 29.4.2002 then Harish had gone to garhmukteshwar for asthi visarjan and entry of his name was made as grandson and similarly when he had gone for asthi visarjan of Pehlad who died on 9.9.2003, name of Harish was shows as son which shows that Harish conducted the last rites of Pehlad as his father and last rites of Balram as his grand son. There is no rebuttal to the abovesaid documents and rather it is proved that Harish had not severed from the family of Pehlad after CS-515423/16 Page No. 53/59 alleged adoption. Though affidavits of pandit Prashant Sharma who was panditji at garhmukteshwar was objected to by the counsel for defendant no. 1 during evidence and was not exhibited but the defendant no. 1 Harish had admitted his signatures on both the entries and stated that he does not know the contents of the same. He is an educated person and he knows what is written therein and as to what consequence it bears. The translation of the same has been placed on record by the plaintiff has to be proved wrong by the defendant no. 1 which has not been done and accordingly these entries are admissible. In the case of adoption the conduct is most important part and in the circumstances when direct evidence is not available these small circumstances do indicate as to whether adoption had taken place or not. Accordingly in view of the above, it is held that adoption deed is null and void ab-initio being contrary to provisions of Section 10 of Hindu Adoption Act since neither Sh. Harish was less than 15 years of age nor he succeeded in proving that there was any custom prevailing in their community where he could have adopted by Sh. Balram even after age of 15 years. Ld. Cl. for defendant no. 1 CS-515423/16 Page No. 54/59 relied upon the findings given by Ld. ADJ Sh. Arun Bhardwaj vide judgment dated 23.11.2009. However appeal was preferred by the petitioners against the said judgment and Hon'ble High Court vide orders dated 4.3.2011 and 18.4.2011 clearly observed that in case of disputes as to entitlement to the compensation and what are the inter- se rights of the claimants, such disputes have to be decided either in a reference u/s 30/31 of the Act or in appropriate proceedings in a civil court. It was also observed by Hon'ble High Court that nothing in the impugned judgment will any manner operate as resjudicata between the parties or bind the parties in the civil proceedings which are proposed to be initiated. Hence, those judgments are not binding on this court in any manner and this court has to freshly decide the matter. Accordingly, issues no. 2 and 3 are decided in favour of the plaintiffs and against the defendants and it is declared that Harish is not the legal heir or adopted son of Sh. Balram and adoption deed dated 1.6.1998 is null and void as the same is not in accordance with provisions of Hindu Adoption and Maintenance Act 1956.
13. Issue no. 4- Whether defendants no. 2 to 7 are entitled to any CS-515423/16 Page No. 55/59 share in the estate of Late Ram Saran? OPD-3&4- The onus to prove this issue was on defendants, however defendants did not lead any evidence in support of the same. Even otherwise defendants no. 2 to 7 are the wife and daughters of Pehlad and when it has already been held while deciding issue no. 1 that Pehlad was adopted by Sh. Balram, then automatically his wife and daughters cannot have any share in the estate of Ram Saran. Besides that defendants no. 3 and 4 in the present matter filed their written statement and stated that plaint is not maintainable and liable to be rejected as they are neither necessary nor proper party to the present suit. It is stated that perusal of the prayer would show that the whole relief is directed against defendant no. 1 and not defendant no. 3 and 4 in any manner whatsoever. Rather defendants o. 3 and 4 have disputed some Will of Beermati, mother of defendant no. 1 in favour of defendant no. 1. and no where they have claimed the estate of Ram Saran. Other defendants i.e defendants no. 2, 5,6 and 7 have not even bothered to file written statement. Defendants no. 3 to 7 who are daughters of Pehlad have also not filed any suit to claim their share nor any counter claim has been filed in the present case. Further, when CS-515423/16 Page No. 56/59 defendants no. 3,5,6 and 7 have appeared in evidence they did not utter a single word regarding their entitlement on the estate of Ram Saran. Accordingly, when defendants no. 2 to 7 themselves neither claimed the estate of Ram Saran nor lead any evidence regarding the same, hence this issue is decided in favour of plaintiffs and against the defendants no. 2 to 7 and it is held that defendants no. 2 to 7 are not entitled to any share in the estate of Ram Saran.
14. Issue no. 5 & Issue no. 6- Whether the suit is barred under Section 9 CPC?OPD-1,3 & 4 & Whether the suit is barred by Limitation? OPD-1, 3 & 4 Both these issues are taken up together. It is the contention of the defendant no. 1 that the suit is barred by limitation as well as is barred by Section 9 of CPC since the present dispute between the parties can be adjudicated by a special court/reference court. It is admitted case of parties that plaintiffs have challenged the judgments of the then Ld. ADJ Sh. Arun Bhardwaj dated 23.11.2009 and 4.3.2010 before Hon'ble High Court by filing review application and Hon'ble High court vide order dated 4.3.2011 and 18.4.2011 Ex. P-16 and Ex. P-17 clearly observed CS-515423/16 Page No. 57/59 that in case of disputes as to entitlement to the compensation and what are the inter se rights of the claimants, such disputes have to be decided either in a reference u/s 30/31 of the Act or in appropriate proceedings in a civil court. It was also observed by Hon'ble High Court that nothing in the impugned judgment will any manner operate as resjudicata between the parties or bind the parties in the civil proceedings which are proposed to be initiated. It is the argument of Ld. Cl. for defendant no.1 that Hon'ble High Court nowhere condoned the delay in filing of the present suit vide said orders. However, I am in disagreement with the said argument of Ld. Cl. for defendant no. 1 since the Hon'ble High Court vide orders supra clearly given the liberty to the plaintiffs to file the matter either before civil court of by way of reference u/s 30/31 of the Act since the entitlement of parties/ their rights cannot be decided in a petition u/s 18 of LA Act. Once the liberty is accorded by Hon'ble High Court to the plaintiffs to approach the appropriate court then the limitation definitely starts from the date of giving of such liberty and accordingly this suit is held to be not barred by limitation. Similarly, vide orders supra Hon'ble High Court CS-515423/16 Page No. 58/59 observed that the matter can be filed either before civil court or reference court meaning thereby that the jurisdiction to try the inter-se disputes of the parties to the present case lies both with the reference court LAC as well as Civil Court and when once such observations has come from Hon'ble High Court itself then it does not lie in the mouth of the defendant to challenge the same before this court. Hence, both these issues are decided in favour of the plaintiffs and against the defendants.
15. Relief:- In view of the above discussion, instant suit of the plaintiffs is decreed with cost and a decree of declaration is passed to the effect that Pehlad was adopted by Balram and Sh. Harish is not adopted son of Sh. Balram consequently adoption deed dated 1.6.98 is null and void. Defendants are also restrained from drawing any benefit, claim from the Govt. compensation etc. due to acquisition of land of Sh. Ram Saran and Balram. Decree sheet be prepared. File be consigned to record room.
Announced in open court (AJAY GOEL)
on 31.7.2021 ADJ-04(South West District)
Dwarka Courts/New Delhi.
CS-515423/16 Page No. 59/59