Jammu & Kashmir High Court
Ramesh Chander And Others vs Ravi Kumar And Others on 27 September, 2022
Author: Rahul Bharti
Bench: Rahul Bharti
Sr. No. 20
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CSA No. 29/2014
CM No. 4197/2014
IA No. 44/2014
Ramesh Chander and others ....Petitioner/Appellant(s)
Through :- Mr. S. K. Anand, Advocate.
V/s
Ravi Kumar and others ....Respondent(s)
Through :- Mr. V. R. Wazir, Sr. Advocate with
Mr. Abhishek Wazir, Advocate.
Coram: HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE
ORDER
27.09.2022
1. Framing of substantial questions of law in this 2nd Civil Appeal is to take place in the back-drop of the following facts and circumstances attending the case.
2. One Sant Ram, the original estate holder, had two sons, namely, Kamla and Lachman Dass, between whom 349 kanals 02 marlas of land came to be apportioned in two shares of 172 kanals 02 marlas and 174 kanals 11 marlas at the relevant point of time. Kamla was issueless whereas Lachman Dass had three sons, namely, Puran Chand, Hans Raj and Sarda Ram.
3. The respondents 1 to 8 herein are the successors-in- interest of Hans Raj, one of said three sons of Lachman Dass whereas the respondent no. 9-Puran Chand is one of said three sons of Lachman Dass. The appellants are the children of Sarda Ram who was the third son of Lachman Dass.
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4. As Kamla was issueless, as such by virtue of a registered deed of adoption dated 13.09.1976, said Kamla was claimed to have adopted the appellant no. 1-Ramesh Chander being son of his nephew-Sarda Ram.
5. Kamla came to demise in the year 1977. After death of said Kamla, the war of succession qua the estate of Kamla came to take place resulting in institution of a Civil Suit no. 3/Civil filed on 18.06.1977 in which Hans Raj and Puran Chand, both being real brothers as sons of Lachman Dass, were the plaintiffs and Sarda Ram third son of Lachman Dass and Ramesh Chander- appellant no. 1 herein, as being the adopted son of Kamla and the original son of Sarda Ram, came to be named as defendant nos. 1 & 2.
6. During the pendency of the suit Hans Raj, original plaintiff no. 1, came to demise and that brought his legal representatives on record, who came to figure as plaintiff nos. 1 to 8 in the suit and Puran Chand the plaintiff no. 2 being renumbered as the plaintiff no. 9.
7. The suit was for declaration that late Kamla had never executed any adoption deed in favour of the appellant no. 1-Ramesh Chander and, thus, sought cancellation of the adoption deed dated 11.12.1972 along with the possession of land measuring Khasra no. 126 and 132 of Village Jagwal, Tehsil Akhnoor. The suit was originally filed before the Sub Judge, Jammu but later on the same came to be transferred to the Court of Munsiff, Akhnoor.
8. The original suit was for declaration with consequential reliefs but later on the suit came to be amended to the effect that possession and declaration with consequential reliefs and cancellation of the so called adoption deed dated 11.12.1972 and registered on 13.09.1976.
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9. The suit came to be dismissed on merits by virtue of judgment and decree dated 31.05.1999 by the Court of Munsiff, Akhnoor in terms of judgment and decree dated 31.05.1999. The Court of Munsiff, Akhnoor had come to return a findings of the fact and law that the appellant no. 1 Ramesh Chander was the legally adopted son of deceased Kamla by virtue of a valid adoption deed executed to the said effect by Kamla and, as such, the appellant no. 1 was the legal representative of deceased-Kamla. The Court of Munsiff, Akhnoor had also held that there was no evidence in the suit to prove that Kamla was mentally unfit at the time of carrying out the adoption.
10. The legal representatives of original deceased-plaintiff not Hans Raj joined by the original plaintiff no. 2 Puran Chand came to prefer a Civil 1st Appeal on file no. 19/Appeal before the appellate court of learned Additional District Judge, Jammu on 10.07.1999, which came to be disposed of ex-parte by the First Appellate Court of Additional District Judge, Jammu vide appellate decree dated 17.11.1999, in terms whereof the suit was remitted back to the Court of Munsiff, Akhnoor for affording opportunity to the plaintiffs (appellants in the appeal on file no. 19/Appeal) to lead evidence in rebuttal in the case.
11. The plaintiffs approached the trial Court of Munsiff, Akhnoor with a prayer, as a consequence of this appellate judgment dated 17.11.1999, for affording the right to lead rebuttal evidence in favour of the plaintiffs. The plaintiff no. 1 i.e. Shakuntla Devi, widow of the original plaintiff no. 1 Hans Raj, came to examine herself as a witness in rebuttal evidence whereas rest of the evidence remained as it is, upon basis of which the trial court of Munsiff, Akhnoor had come up with the first judgment and decree of dismissal of suit. 4 CSA No. 29/2014
10. The Court of learned Munsiff, Akhnoor came up with second time judgment and decree dated 31.01.2002 in the civil suit in terms whereof the suit came to be decreed in favour of the plaintiffs and against the defendants. With the reversal of findings to the effect this time that the appellant no. 1-Ramesh Chander was held not being the adopted son of deceased Kamla as a consequence whereof declaration in favour of the petitioners being entitled to 2/3 shares in the suit property as claimed came to be granted. Upon holding the plaintiffs being entitled to 2/3 share qua the suit property, final decree was directed to follow after receiving the report of Commissioner on partition getting effected.
11. It is in the backdrop of the aforesaid facts and circumstances that the original defendant no. 2 i.e. Ramesh Chander joined by the legal representatives of Sarda Ram, the original defendant no. 2, came to prefer Civil 1st Appeal on file no. 44/Appeal on 27.05.2002 before the Court of Principal District Judge, Jammu against the judgment and decree dated 31.01.2002 passed by the Court of Munsiff Akhnoor.
12. This Civil 1st Appeal came to be dismissed by the appellate court of learned Principal District Judge, Jammu vide its judgment and decree dated 04.07.2014. It is against this appellate judgment and decree dated 04.07.2014, that the original defendant no. 1-Ramesh Chander and the legal representatives of original defendant no. 2-Sarda Ram have come forward with the present Civil 2nd Appeal filed on 16.07.2014 before this Court. This Court in terms of an order dated 17.07.2014 came to stay the operation of the impugned judgment and decree dated 04.07.2014.
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12. Given the fact that the appellants are in civil second appeal filed under Section 100 of the J&K Code of Civil Procedure, Svt. 1977, the substantial questions of law are yet to be framed ever since the date of its institution. It is almost after eight years of pendency that the substantial questions of law are getting framed in this present matter.
13. In the memo of appeal, the appellants have proposed the substantial questions of law to the following effect:
"(i) Whether the learned Munsiff can set aside the judgment rendered by the Munsiff earlier in a suit on remittance of the case when only liberty was granted to produce the evidence in rebuttal?
(ii) Whether a decree can be passed without the cancellation of the testamentary document which was challenged in the suit?
(iii) Whether the court below misdirected itself by weighing the evidence by assuming that the burden of proof of certain facts was upon the defendants/appellants despite the requirement of law that party who challenges the Deed is required to prove that the Deed is illegal and cannot be taken into consideration?
(iv) Whether courts can pass a decree and grant relief which was beyond reliefs claimed in the suit?
(v) Whether the courts can ignore the testamentary document and without cancelling the same cane grant reliefs by ignoring such a testamentary document and relying upon the hearsay evidence?"
13. Keeping in view of the substantial questions of law so proposed and the admitted position of facts (emerging on the record) as born out from the pleadings in the case and evidence on record, the two judgments which came forth from the trial Court of Munsiff, Akhnoor and the two appellate judgments of Court of Additional District Judge, Jammu and the Principal District Judge, Jammu, the following substantial questions of law are found involved in the present Civil 2nd Appeal:
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"(i) Whether the Court of Munsiff, Akhnoor had the basis and justification to carry out the entire review of the evidence while adjudicating the suit after remand by virtue of judgment dated 17.11.1999 of the Additional District Judge, Jammu in terms whereof the rebuttal evidence of the plaintiffs was to be allowed?
(ii) Whether it was only the evidence in rebuttal which was required to be considered by the Court of Munsiff, Jammu vis-
à-vis already returned findings of facts and law in the first judgment and decree dated 31.05.1999 by the Court of Munsiff, Akhnoor?
(iii) Whether the evidence in rebuttal in the form of statement of the plaintiff no. 1 Shakuntla Devi, respondent no. 1 herein, qua the suit document of adoption deed was of quality and effect so as to enable the Court of Munsiff, Akhnoor to come forward with a reversal of finding of fact and law that the adoption deed in reference was not valid and that the adoption of the appellant no. 1 by late Kamla through the medium of the adoption deed dated 13.09.1976 was invalid whereas in the first judgment and decree the findings were otherwise against the plaintiff?"
14. The above mentioned three substantial questions of law will cover the rest of the issues as may crop up for adjudication of the present Civil 2nd Appeal.
15. The Civil 2nd Appeal is admitted to hearing. Considering the fact that the case pertains to the year 2014, as such, let this appeal be listed higher up, in the final hearing column for its final adjudication on 22.12.2022.
(RAHUL BHARTI) JUDGE JAMMU 27.09.2022 Shivalee