Jharkhand High Court
Lagan Kumar vs Chaku Layak S/O Late Bhatu Nayak on 26 April, 2018
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
Second Appeal No. 127 of 2012
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No.127 of 2012
------
1. Lagan Kumar
2. Santanu Kumar
3. Kalicharan Kumar
4. Sarwan Kumar All Sons of late Painter Kumar
5. Sabitri Devi W/o Late Painter Kumar
6. Bulai Devi W/o Late Painter Kumar All residents of Village & P.O. - Kalipur, P.S. - Saraiyahat, District - Dumka.
.... .... .... Appellants
Versus
1. Chaku Layak S/o Late Bhatu Nayak
2. Purni Layakin W/o Chaku Layak
3. Keshahar Layak
4. Haricharan Kumar
No. 3 & 4 both sons of Chaku Layak
All residents of village & P.O. Petsar, P.S. Jarmundi, District -Dumka .... .... .... Respondents
------
For the Appellants : Mr. Arbind Kumar Sinha, Advocate For the Respondents : Mr. Rajiv Ranjan, Sr. Advocate : Mr. Shashank Saurav, Advocate
------
PRESENT HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
------
By the Court:- Heard the parties.
2. The unsuccessful plaintiffs who were the appellants in the lower appellate court are the appellants in this second appeal also.
3. This second appeal has been preferred against the judgment and decree dated 21.06.2012, passed by the District Judge -I, Dumka whereby and where under, the learned lower appellate court has dismissed the appeal on contest and upheld the Judgment and decree dated 12.07.2005, passed in Title Suit No. 31/1990 by the Sub Judge -III, Dumka.
4. The Title Suit No. 31/1990 was filed by the plaintiffs for declaration that the adoption deed no. 174/1980 is null and void and inoperative in law as there was no lawful adoption of defendant no.4 by the defendant no.1.
5. The case of the original plaintiff in brief is that the parties are Hindu by faith and governed by Mitakshara School of Hindu Law. The defendant no.1 1 Second Appeal No. 127 of 2012 Paro Kumarain (since deceased) is the legally married wife of original plaintiff Painter Kumar (since deceased). The original plaintiff has four sons. It is the further case of the original plaintiff that the defendant no.1 inherited the estate of her father along with her sister-in-law Ajhola Devi who is cousin of the defendant no.1. It was also pleaded that the defendant no.1 is a simple lady subject to easy persuasion. It is the further case of the original plaintiff that the defendant no.2 -Chaku Layak is very shrewd and cunning man and persuaded the defendant no.1 Paro Kumarain in connivance with the defendant no.3 Purni Layakain and got a sham and spurious paper purported to be a deed of adoption bearing no. 174/1980 executed by the defendant no.1 depicting therein that the defendant no. 1 adopted the defendant no.4 as her son. The said deed of adoption was created by playing fraud upon the defendant no.1 and fraudulently obtaining her Left Thumb Impression, the said deed of adoption was registered in the office of Sub Registrar, Dumka on 22.09.1980 by making false averment in the recital of the said deed that the original plaintiff who is the husband of the defendant no.1 died without a son. The original plaintiff further pleaded that the defendant no.4 was never given in adoption to the defendant no.1 and he all along lived with his natural parents. It was the further case of the original plaintiff that the original plaintiff and the original defendant no.1 has a son namely Santan Kumar. Hence at that time, the defendant no.1 was not entitled to adopt another son. In their joint written statement, besides the usual defence, the defendants have pleaded that the original plaintiff -Painter Kumar is no way related to the defendant no.1 but he only shares the common name as name of the husband of the defendant no.1 who died long ago without a son. It is the further case of the defendants that the original plaintiff married Bulani Kumarain and through the said wife the original plaintiff has got son and daughters including Santan Kumar. The defendants also pleaded that all the rituals were performed at the time of adoption of defendant no.4 by defendant no.1 and after adoption the defendant no.1 executed the deed of adoption and the defendant no.4 continued to live with the defendant no.1, after his adoption by the defendant no.1 and there is nothing fraudulent regarding the said deed of adoption.
6. On the basis of the rival pleadings of the parties, the learned trial court framed seven issues. The main issues being issue no. IV,V and VI:-
IV. Whether late Paro Kumrain was legally married wife of original plaintiff Painter Kumar?2 Second Appeal No. 127 of 2012
V. Whether the defendant No.4 Keshwar Layak @ Hari Charan Kumar is legally adopted son of Paro Kumarain?
VI. Whether the adoption deed No. 174/80 is valid, genuine and operative?
After considering the evidence, both oral and documentary, put forth by the rival parties, the learned trial court came to the conclusion that the plaintiffs have failed to prove that the defendant no.1 is the wife of original plaintiff Painter Kumar and also held that the husband of the defendant no.1 whose name was also Painter Kumar died long ago and at the time of adoption of the defendant no.4, the defendant no.1 was a sonless widow. Hence she was competent to adopt a son. Learned trial court further came to a finding that the defendant no.4 is the legally adopted son of the defendant no.1 and the adoption deed no. 174/80 dated 22.09.1980 is valid, genuine and operative. Learned trial also came to the conclusion that the suit was barred by limitation as the prayer for declaration of the adoption deed no. 174 of 80 is null and void and inoperative in law and was filed after 10 years of the execution of the said deed and dismissed the suit on contest with costs.
7. Being aggrieved by the said judgment, the plaintiffs filed an appeal in the court of District Judge, Dumka which was registered as Title Appeal No. 12 of 2005 and ultimately the same was heard and disposed of by the impugned judgment by the District Judge -I, Dumka. The learned lower appellate court after hearing the submissions made by the parties formulated the following two points for determination:-
(I) Whether the adoption deed No. 174/80 is valid, genuine and operative in law and Paro Kumarain is legally married wife of original plaintiff Painter Kumar and this Painter Kumar died long ago and further defendant no.4 Keshwar Layak or Hari Charan Kumar is legally adopted son of Paro Kumarain?
(II) Whether the suit of the plaintiff is maintainable as framed and he has got valid cause of action for the same and further the suit is barred by law of limitation?
8. After scrutinizing the evidence in record, both, oral and documentary, the learned lower appellate court considered the presumption in law in view of Section 16 of the Hindu Adoption and Maintenance Act, 1956 that any document registered under any law is produced before any court purporting to record an adoption made by the persons giving and taking the child in adoption, the court shall presume that the adoption has been made in 3 Second Appeal No. 127 of 2012 compliance with the provision of Hindu Adoption and Maintenance Act, 1956 until it is rebutted and held that the plaintiffs have failed to discharge the burden to rebut the said presumption by adducing cogent and credible evidence and also held that the suit is barred by limitation.
9. Mr. Arbind Kumar Sinha, the learned counsel for the appellants submits that the learned lower appellate court passed the impugned order against the weight of evidence in record and did not considered the evidence put forth by the plaintiffs-appellants in its proper perspective. Hence, he submits that the impugned order of the learned lower appellate court being not sustainable in law be set aside.
10. Having heard learned counsel for the appellants and after going through the record, I find that the learned lower appellate court has considered the evidence in the record in its proper perspective by making the detailed analysis and scrutinizing the evidence in record, both, oral and documentary put forth by the rival parties to the suit and arrived at the finding of fact on the basis thereof that the adoption deed No. 174/80 is valid, genuine and operative in law.
11. It is a settled principle of law that in exercise of power under Section 100 of the Code of Civil Procedure, the High Court cannot interfere with the finding of fact recorded by the first appellate court which is the final court of fact, unless the same is found to be perverse, as has been reiterated by the Hon'ble Supreme of India, in paragraph -10 of the case of Gurvachan Kaur and Others vs. Salikram (dead) through LRS., reported in (2010) 15 SCC 530 as under:-
"10. It is settled law that in exercise of power under Section 100 of the Code of Civil Procedure, the High Court cannot interfere with the finding of fact recorded by the first appellate court which is the final court of fact, unless the same is found to be perverse. This being the position, it must be held that the High Court was not justified in reversing the finding of fact recorded by the first appellate Court on the issues of existence of landlord-tenant relationship between the plaintiff and the defendant and default committed by the latter in payment of rent." (Emphasis Supplied).
Learned Counsel for the appellant could not point out any specific instance of any particular evidence being not considered. The learned Counsel for the appellant also could not point out any illegality or error in the impugned judgment and decree of the lower Appellate Court giving rise to any substantial question of law to be framed and decided by this Court in exercise of second 4 Second Appeal No. 127 of 2012 appellate jurisdiction.
12. Thus there being no merit, this appeal is dismissed but in the circumstances without any costs.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 26th April, 2018 AFR/ Sonu-Gunjan/-
5