Patna High Court
Rajendra Pd vs Ajit Kr.Singh on 18 May, 2012
Author: V. Nath
Bench: V. Nath
IN THE HIGH COURT OF JUDICATURE AT PATNA
Second Appeal No.202 of 1989
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Rajendra Pd., Son of Ram Gahan Ram, R/o Village- Jahanabad, P.S.-Kudra,
District- Rohtas-Opposite Party-Appellant-.... .... Appellant/s
Versus
Ajit Kr.Singh alleged to be Son of Jamuna Singh resident of Village- Jahanabad,
P.S.-Kudra, District- Rohtas-Applicant-Respondent-Respondent .... Respondent/s
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Appearance :
For the Appellant/s : Mr. K.N.Chaubey,Sr.Adv. with Mr. Sidharth Harsh,Adv.
For the Respondent/s : Mr. S.K.Verma,Sr.Adv, with Mr.R.C.Prasad Sinha, Adv and
Mr. J.K.Verma,Adv.
Mr. M.K. Sinha, Adv.
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CORAM: HONOURABLE MR. JUSTICE V. NATH
CAV JUDGMENT
Date: 18-05-2012
V.Nath, J. Heard Mr. K.N.Chaubey, the learned senior counsel for the
appellant and Mr. S.K.Verma, the learned senior counsel for the
respondent.
2. This second appeal has been filed against the judgment and
decree dated 16.03.89 passed in T.A.No.49/1987/22/1988 by the
Additional District Judge, Rohtas at Sasaram affirming the judgment
and decree dated 30.06.87 passed by Sub Judge, Bhabhua in L.A.Case
No. 88/1986 initiated on the reference under Section 30 of the Land
Acquisition Act made by the Collector, Rohtas in Land Acquisition
Case No. 14T/1984/85
3. It is not in dispute that in L.A.Case No. 14T/1984/85, the
notice was issued under Section 12(2) of the Land Acquisition Act to
the respondent for receiving the amount of award for acquisition of an
area of 1.14 acres of plot no. 744 of Khata No. 346 village Zahanabad
2 Patna High Court SA No.202 of 1989 dt.18-05-2012
2 / 15
P.S.-Kudra, District-Rohtas. The appellant, however, raised the
objection to the entitlement of the respondent to receive the aforesaid
amount of award and claimed himself to be entitled to the same.
Thereafter, the reference was made by the Collector under Section 30
of the Land Acquisition Act and after the reference the L.A.Case No.
88/1985 was registered before the Court of Sub Judge, Bhabhua.
4. The relevant facts for determination of substantial questions
of law raised in this appeal are that an area of 1.14 acre of land
recorded in Revisional Survey Plot No. 744 belonged to Yamuna
Singh and Chunmun Singh out of whom Yamuna Singh had no issue
whereas Chunmun Singh had only one son namely Ram Kalyan Singh
and Ram Kalyan Singh had only son Ajeet Kumar Singh who is the
sole respondent in this appeal. The case of the appellant, who was the
objector-opposite party in L.A. Case No. 88/1985, was that he had
purchased the entire 1.14 acre of land by registered sale deed dated
12.11.1970from Ram Kalyan Singh who executed the sale deed for himself and also on behalf of his minor son (respondent) and as such he was entitled to receive the amount of compensation under the award. The case of the respondent, however, was that in the year 1966 his uncle Yamuna Singh validly adopted him and a registered deed of adoption had also been executed. It was his assertion that there had been partition between Yamuna Singh and Ram Kalyan Singh through compromise decree passed in T.S.No.174/63 and Yamuna Singh was 3 Patna High Court SA No.202 of 1989 dt.18-05-2012 3 / 15 exclusively allotted Plot No. 744 area 1.14 acre. It was the case of the respondent that after the death of Yamuna Singh, he inherited the land in dispute as son (adopted) of Yamuna Singh and Ram Kalyan Singh had no right, title or interest to transfer the land in dispute to the appellant, by executing the sale deed and on the basis of the said sale deed the appellant did not acquire any right, title or interest in 1.14 acre of land of Plot No. 744 in dispute.
5. After hearing the parties and considering the evidence, the learned Sub Judge held that the respondent Ajeet Kumar Singh had been validly adopted by Yamuna Singh and with further finding that the vendor of the appellants, namely Ram Kalyan Singh had no right to transfer the property to the appellant, the collector was directed to pay the amount of compensation to the respondent. In appeal, the appellate court concurred with the findings of the learned Sub Judge and concluded that the adoption of the respondent Ajeet Kumar Singh was valid and the appellant Rajendra Prasad did not acquire title over the land under acquisition by virtue of his purchase from Ram Kalyan Singh.
6. This second appeal has been admitted for hearing on the following substantial questions of law.
(i) Whether the finding of the learned Subordinate Judge that there was a valid consent of the wife of Yamuna Singh in giving Ajeet Kumar Singh in adoption could 4 Patna High Court SA No.202 of 1989 dt.18-05-2012 4 / 15 be presumed from the fact that an appeal was filed before the Dy. Director of Consolidation, Sasaram with respect to the piece of land by the wife of Yamuna Singh?
(ii) Whether in absence of any evidence, the consent of wife of Ram Kalyan Singh was presumed to have been obtained before adoption and whether the learned Subordinate Judge was justified in giving a finding that the Ajeet Kumar Singh was validly adopted son of Yamuna Singh?
(iii) Whether a sale deed executed by Ram Kalyan Singh for self and on behalf of Ajeet Kumar Singh as a natural guardian is a good sale binding upon the respondent?
(iv) Whether the appellant was entitled to receive compensation money on the basis of the sale deed executed on behalf of Ajeet Kumar Singh and his natural father?
7. When this appeal was taken up for hearing, the learned counsel for the appellant pointed out that the two interlocutory applications i.e. I.A.No. 8047/11 filed on 24.11.11 and I.A.No. 262/12 filed on 12.01.2012, under Order 41 Rule 27 and Section 151 C.P.C. for adducing additional evidence on behalf of the appellant are 5 Patna High Court SA No.202 of 1989 dt.18-05-2012 5 / 15 pending for consideration and the same should also be heard.
8. The learned senior counsels for the parties have been heard on the two interlocutory applications and also on the merits of the substantial questions of law as formulated.
9. Through the two interlocutory applications the appellants have sought to adduce the sale deeds executed by the respondent Ajeet Kumar Singh on 22.05.09 and 18.04.2006 respectively as additional evidence in this appeal. In the I.A. No. 8047/11, the photo copy of the sale deed dated 22.05.09 has been annexed and in the I.A.No. 262/12, the certified copy of the sale deed dated 18.04.2006 has been annexed. By these two sale deeds, the respondent Ajeet Kumar Singh appears to have sold away some of his properties and in both the sale deeds the name of his father has been mentioned as late Ram Kalyan Singh.
10. It is the submission on behalf of the appellant that the germane issue in this appeal is the validity of adoption of Ajeet Kumar Singh by Yamuna Singh in the year 1966 and therefore these two sale deeds, which came to be executed during the pendency of this appeal, would be crucial evidence to contradict the story of adoption as propounded by Ajeet Kumar Singh. It has therefore been prayed that even at this second appellate jurisdiction these two documents can be accepted by way of additional evidence and the final verdict should be given after considering the additional evidence 6 Patna High Court SA No.202 of 1989 dt.18-05-2012 6 / 15 also.
11. Per contra, the learned senior counsel appearing on behalf of the respondent has vehemently opposed the prayer on behalf of the appellant for adducting these two documents in evidence. It has been contended that the jurisdiction of the second appellate court is circumscribed by the provision of Section 100 which on its own wordings precludes even reappreciation of evidence. It has been urged that these two sale deeds are not unimpeachable in nature and there can be varied circumstances under which the name of the father of Ajeet Kumar Singh might have been wrongly mentioned as Ram Kalyan Singh and at the utmost, the mention of the Ram Kalyan Singh as father of Ajeet Kumar Singh may be taken to be an admission but even then an admission can always be satisfactorily explained away by other evidence. The learned senior counsel has also contended that it would be an ever lasting story in litigation if the second appellate court accepts additional evidence for the purpose of determining a disputed question of fact, as in all such cases the matter will have to be remanded back for granting opportunity to the other side to lead evidence in rebuttal. The learned senior counsel has placed reliance upon the decision of the apex court reported in AIR 1978 SC 1062 to bolster his submission.
12. The two sale deeds sought to be adduced in additional evidence prima facie appear to have been executed by Ajeet Kumar 7 Patna High Court SA No.202 of 1989 dt.18-05-2012 7 / 15 Singh where the name of his father has been mentioned as Ram Kalyan Singh. However, there is force in the submission of the learned senior counsel on behalf of the respondent that this fact in itself is not potential enough to clinch the issue and at the most it can be used as an admission only but then the other side will have to be given opportunity to explain the said admission by leading appropriate evidence. The question that also emanates here as a corollary is the jurisdiction of the second appellate court to accept additional evidence to contradict a concurrent finding on a pure question of fact. The three Judges Bench of the Hon'ble Supreme Court in the case of Balai Chand Hajra Vs. Shewdhari Jadav reported in AIR 1978 SC 1062 has considered the scope and applicability of the provision of Order 41 Rule 27 in second appeal and their Lordships have held that the court hearing a second appeal cannot take over the function of the trial court or the first appellate court and undertake appreciation of evidence and record finding of facts and their Lordships have also clarified that the appreciation of evidence in second appeal even in view of Section 103 C.P.C. is limited to evidence on record sufficient to determine an issue of fact necessary for disposal of the appeal which the lower court has failed to determine or wrongly determined. Again, a later decision of the Apex Court in the case of Abdul Ghani Memorial Trust Vs. Bihar State Sunni Waqf Board, 1987 (supp.) S.C.C. 577 is further reflection on the issue at hand, where their 8 Patna High Court SA No.202 of 1989 dt.18-05-2012 8 / 15 lordships have held that in a case where the findings are vulnerable, the High Court in the course of exercise of powers under Section 100 C.P.C can either set aside those findings or call for a finding from the lower appellate court, if it is considered necessary to adduce further evidence, or receive appropriate additional evidence itself in accordance with law, if it is in the form of a document and does not require any formal proof, and thereafter proceed to determine the matter. Then, there are also decisions emphasizing that no prejudice should be caused to the other side while the additional evidence is permitted and an opportunity to lead evidence in rebuttal must be granted. (See. A.I.R. 1977 S.C. 1217 and 2010 (8) SCC 423).
13. In view of the aforesaid principles, the scope of adducing additional evidence at the second appellate stage, in accordance with law, cannot be completed ruled out but simultaneously it is also clear that such a course is open not as a matter of right but only in compelling circumstances and that too when the findings are vulnerable and additional evidence is required in the interest of justice in the facts and circumstances of the case. Further, it also follows that the documentary evidence, sought to be adduced as additional evidence, should be prima-facie unimpeachable and have a direct bearing on the crucial issues arising in the suit.
14. In the present case, the two sale deeds executed by the respondent Ajeet Kumar Singh have certainly come during the 9 Patna High Court SA No.202 of 1989 dt.18-05-2012 9 / 15 pendency of this appeal wherein the father's name of Ajeet Kumar Singh has been mentioned as Ram Kalyan Singh. However, this is not such a fact which cannot be denied, explained away or shown to have been made under a bona fide mistake or the sale deeds themselves can be established to be forged and fabricated documents. Further also, in view of the discussion and finding on the merits of this appeal, on the basis of pleadings and evidence already on record, which shall henceforth follow, the futility of admitting the two sale deeds as additional evidence at this stage would become more established.
15. On the merits of the appeal, the learned senior counsel on behalf of the appellant has firstly submitted that Ajeet Kumar Singh admittedly being the only son of Ram Kalyan Singh could not have been given in adoption, and he has placed reliance on the decision of the Apex Court in A.I.R. 1964 SC 138(Raghavamma & Anr. Vs. A. Chenchamma & Anr.). It has been further contended that the consent of the wife is mandatory for a valid adoption but there is no evidence on record that the wife of Ram Kalyan Singh also agreed and gave consent to the adoption of her son Ajeet Kumar Singh by Yamuna Singh. It has been urged that in view of the provision of the Hindu Adoption and Guardianship Act, 1956, the consent of wife is a condition precedent to a valid adoption. The learned senior counsel has further canvassed that both the courts below have wrongly accepted the case of adoption as made out by the respondent 10 Patna High Court SA No.202 of 1989 dt.18-05-2012 10 / 15 ignoring the absence of evidence as well as the relevant statutory provisions.
16. The learned senior counsel for the respondent, however, has submitted that there is no pleading by the appellant in his objection filed in the land acquisition proceeding that the wife of Ram Kalyan Singh did not give her consent to the adoption. It has been submitted that in absence of such a pleading no evidence was led by the respondent in that regard to establish the consent of the wife of Ram Kalyan Singh but even then the evidence available on record itself are sufficient to indicate that wife of Ram Kalyan Singh had given her consent to the adoption. It has been further contended that there is no such prohibition in the statute precluding a person from giving his only son in adoption and it has been pointed out that even the apex court in the decision relied upon on behalf of the appellant has not laid down as such. It has been further emphasized that even in the sale deed (Ext.A), which is the basis of the claim of the appellant , the name of the father of Ajeet Kumar Sigh has been mentioned as Babu Jamuna Singh deceased and in the recital portion also the description of Ram Kalyan Singh as his natural father appears to have been necessitated due to the status of Ajeet Kumar Singh as adopted son of Yamuna Singh. The learned senior counsel has pointed out that the appellant has nowhere denied or explained the aforesaid fact which will amount to admission of the said fact and no further evidence is now required to 11 Patna High Court SA No.202 of 1989 dt.18-05-2012 11 / 15 establish the adoption.
17. The seminal issue in view of the rival cases of the parties is the adoption of the respondent Ajeet Kumar Singh by Yamuna Singh. The admitted facts are that Ram Kalyan Singh and Yamuna Singh were two coparceners and there had been partition of the joint family property among them by the decree of the Court and it has also not been disputed that Yamuna Singh was allotted the property in dispute in that partition. The documentary evidence Ext. 1 (rent receipt) and Ext. 6 (survey Khatian) also show that Yamuna Singh was in possession of the land in dispute. The respondent Ajeet Kumar Singh has relied on the registered deed of adoption (Ext. 3) in support of his case of adoption. This adoption deed has been executed and signed by both Yamuna Singh and Ram Kalayan Singh as well the witnesses and carries with it the statutory presumption of the fact of adoption as envisaged by Section 16 of the Hindu Adoption and Maintenance Act, 1956. Both the courts below after scrutinizing the evidence have concurrently upheld the validity and genuineness of this document. In view of the statutory presumption of adoption, the burden was upon the appellant to establish the contrary by pleading and proving the necessary facts. There is no pleading in the objection by the appellant to the effect that the wife of Ram Kalayan Singh did not give her consent to the adoption. But even then both the courts have examined the evidence on record in this regard and concluded that the mother of 12 Patna High Court SA No.202 of 1989 dt.18-05-2012 12 / 15 the respondent Ajeet Kumar Singh was a consenting party. No perversity in this finding could be established on behalf of the appellant during the course of argument.
18. The another submission on behalf of the appellant has been made that the respondent Ajeet Kumar Singh was the only son of Ram Kalayan Singh and as such he could not have been given in adoption. However, even in the decision of the Hon'ble Supreme Court reported in A.I.R. 1964 SC 138, on which the reliance has been placed in support of this proposition, their lordships have observed that there is no law prohibiting a person from giving his only son in adoption. No other decision or material in support of this proposition has been produced and as such, there is no substance in the submission.
19. However, the most important evidence on record is the sale deed (Ext.A) which has been executed by Ram Kalyan Singh in favour of the appellant and which is the basis of his claim. The said sale deed has been executed by Ram Kalyan Singh for himself and as guardian of Ajeet Kumar Singh who was then a minor and in that sale deed the name of the father of Ajeet Kumar Singh has been mentioned as Babu Yamuna Singh deceased. In the recital part of the sale deed also it appears that Ram Kalyan Singh has felt the need to describe himself as natural father of Ajeet Kumar Singh.
In the sale deed the description of the vendors has been made as follows:
13 Patna High Court SA No.202 of 1989 dt.18-05-2012 13 / 15 "... okcq jke dY;k.k flag oYn ckcq pquequ flag eksroQk [kqn oks oyh okcq vthr dqekj flag ukokyhx islj okcq tequk flag eksroQk ......"
The recital portion of the sale deed also reads as follows:-
"... pq lS o eksob;k etdqj [kkl eueksdhj oks ukokyhx etdqj dh gSA ukokyhx etdqj ds oyh oks djhc [kSj[kkg oks dqnjrh firk eSa gw¡ gedks iqjk gd dsokyk djus dk gklhy gSA..."
20. It is not the case of the appellant that the name of the father of the respondent Ajeet Kumar Singh has been wrongly mentioned as Yamuna Singh in the sale deed (Ext.A). The further recital in the sale deed has also remained unexplained where the vendor Ram Kalyan Singh has felt the need to describe himself as guardian, next friend and natural father of minor Ajeet Kumar Singh. The appellant, claiming to have derived title in the land in dispute through the sale deed (Ext.-A) where the co-vendor Ajeet Kumar Singh has been described as son of Yamuna Singh, now, cannot be allowed to dispute the said factual position, and in any case, the statement of the first vendor Ram Kalayan Singh, who had executed the sale deed on behalf of the minor co-vendor Ajeet Kumar Singh, also would bind the appellant as his successor-in-interst. It is pertinent to mention here that Ram Kalayan Singh has also put his signature on the registered adoption deed (Ext.-3) which fact has not been disputed by the appellant.
14 Patna High Court SA No.202 of 1989 dt.18-05-2012 14 / 15
21. Another aspect to be noted is that once it has been recited in the sale deed that the minor co-vendor Ajeet Kumar Singh is the adopted son of Yamuna Singh, then the first vendor Ram Kayalan Singh, even though natural father of Ajeet Kumar Singh, would cease to be his guardian and could have no right to alienate the property of the minor which admittedly belonged to his adoptive father Yamuna Singh and inherited by the minor after his (adoptive father) death. The sale deed also does not show that Ram Kalayan Singh has been appointed the guardian of the minor Ajeet Kumar Singh by court and has obtained the order for sale of the property of the minor. Thus, in essence, the sale deed (Ext. A), at the most, can be said to have been executed by Ram Kalayan Singh alone who admittedly had no title over the property to transfer to the appellant.
22. In view of the registered adoption deed (Ext.-3) with statutory presumption attached therewith and the contents of the sale deed (Ext.-A), there is no scintilla of doubt that the respondent has proved himself to be the adopted son of Yamuna Singh and thereby entitled to the land in dispute. Both the courts below have committed no illegality in upholding the respondent's title over the land in dispute as adopted son of Yamuna Singh, and dismissing the objection of the appellant.
23. In the background of abovementioned facts and discussions, it is also manifest that the evidence on record have the necessary 15 Patna High Court SA No.202 of 1989 dt.18-05-2012 15 / 15 potential sufficient for decision of this appeal on merits. The two sale deeds, sought to be adduced as additional evidence by the appellant, are apparently not decisive and conclusive in character and the prayer for adducing additional evidence, if allowed, would only open a new vista to this prolonged litigation, pending since 1985. As such, the two interlocutory applications ( I.A. No. 8047 of 2011 and I.A. No. 262 of 2012) are rejected.
24. In the result, the substantial questions of law, as indicated above, are decided against the appellant. The second appeal is, accordingly, dismissed and the judgment and decree passed by both the courts below are hereby affirmed. However, there will be no order as to costs.
(V. Nath, J) Patna High Court, Patna.
Dated the 18th May, 2012.
Nitesh/.A.F.R.