Delhi District Court
Sh. Manoj Kumar vs Sh. Vijay Kumar on 21 December, 2018
IN THE COURT OF ACJCCJARC, SHAHDARA, KARKARDOOMA
COURTS, DELHI
Presided By : Sudhir Kumar Sirohi, DJS
Civil Suit No: 8809/16
Sh. Manoj Kumar
S/o Sh. Kanwar Pal Singh
R/o 134, Chandu Park,
Gali no. 2, Krishna Nagar,
Delhi 110051 ... Plaintiff
Versus
Sh. Vijay Kumar
S/o Late Sh. Ganga Prasad
R/o Vilalge Lalner,
Pargana Pahasu, Tehsil Khurja,
District Bulandshahar, UP
Also At:
1. 134, Chandu Park, Gali no. 2,
Krishan Nagar, Delhi 110051
2. Sh. Kanwar Pal Singh
S/o Sh. Babu Singh
R/o 134, Gali no. 2,
Chandu Park, Krishna Nagar,
Delhi 110051
3. Smt. Ramwati
W/o Late Sh. Ganga Prasad
R/o Village Lalner, Pargana Pahasu,
Tehsil Khurja, District, Bulandshahdar, UP
(defendant no. 3 deleted vide order dated 18.03.2016) ... Defendants
SUIT FOR DECLARATION AND PERMANENT
INJUNCTION
Civil Suit No. 8809/2016
Sh. Manoj Kumar Vs. Sh. Vijay Kumar
Page No. 1 of 10
DATE OF INSTITUTION : 08.09.2014
DATE OF FINAL ARGUMENTS : 22.11.2018
DATE OF DECISION : 21.12.2018
JUDGMENT
1. The plaintiff had filed the present suit against defendant. By way of this suit, the plaintiff has sought reliefs of declaration and permanent injunction.
2. In order to justify the grant of the aforesaid reliefs/prayer, the plaintiff has interalia pleaded in the plaint that plaintiff is residing at 134, Gali no. 2, Chandu Park, Krishan Nagar, Delhi 110051. The defendant no. 1 is relative (mother's sister's son/mausiji's son) of the plaintiff. The defendant no. 2 is the father of the plaintiff. The real father name of the defendant no. 1 is Late Sh. Ganga Parshad and real mother name is Smt. Ramwati R/o village Lalner, pargana Pahasu, Tehsil, Khurja, District Bulandshahar and Smt. Ramwati is defendant no. 3 and Sh. Ganga Parshad was expired. The defendant no. 2 has three sons and four daughters namely Kishore Thakur, Rajender Kumar, Manoj Kumar, Sushila @ Rani, Meena, Seema and Reena.
3. It is further averred that defendant no. 2 had filed a petition under Section 125 Cr. PC against the petitioner and in that matter, the defendant no. 2 disclosed that he has adopted the defendant no. 1. In RTI and reply from Food Supply Department dated 09.05.2014, the department has sent the copy of the alleged adoption deed dated 18.07.1993. Earlier the department in a RTI reply also sent copy of statement of defendant no. 2 recorded by food department stated that he adopted the defendant no. 1 near Civil Suit No. 8809/2016 Sh. Manoj Kumar Vs. Sh. Vijay Kumar Page No. 2 of 10 about 1990, the illegal alleged adoption deed the plaintiff complained before various authorities, Delhi Police on 28.05.2013 vigilance Election Office on 12.01.2013, reminder on 04.03.2013 to CEC in the month of May 2013 passport office on 02.05.2013, vigilance passport on 10.06.2013, ration department vigilance on 10.01.2013, reminder dated 04.03.2013, ration department dated 24.06.2013 regarding illegal, forged and anti dated, fabricated adoption deed prepared by the defendant no. 1, 2 and 3 and their associates.
4. It is further averred by plaintiff that defendant no. 1 and 2 also got prepared passport of the defendant no. 1 in collusion of defendant no. 1 to 3, as name of the defendant no. 1 as his son falsely shown by the defendant no. 2 first time about alleged illegal adoption deed and plaintiff came to know about it in May, 2013.
5. It is further averred that adoption deed is anti dated, illegal, forged and fabricated paper prepared by the defendant no. 1, 2 and 3 in collusion of his associates. The said alleged adoption deed dated 18.07.1993 is anti dated and stamp and signature of notary public shown by the defendant no. 2 for attestation are forge and fabricated by the defendant no. 1 and 2. The defendants are continuously threatening to misuse of the said illegal adoption deed in question. The defendant no. 1 is taking undue advantage of illegal adoption deed. Defendant no. 2 falsely stated before various authorities deliberately that the defendant no. 1 is residing in 134, Gali no. 2, Chandu Park, Krishna Nagar, Delhi 110051 whereas the defendant no. 1 never resided in Delhi at that place. The defendant no. 1 since inception is residing at his native place at village Lalner, Pargana Pahasu, Tehsil Khurja, District, Civil Suit No. 8809/2016 Sh. Manoj Kumar Vs. Sh. Vijay Kumar Page No. 3 of 10 Bulandshahar, UP.
6. It is further averred that the said alleged adoption deed dated 18.07.1993 is manipulated forged paper prepared by the defendant no. 1, 2 and 3 and their associates just to give benefits to defendants no. 1 in getting and using the passport, voter ID and inclusion of name in ration card of the defendant no. 2.
7. It is further averred that the defendant no. 1 is of about 33 years old. The defendant no. 1 to 3 prepared the said adoption deed to get benefit from various authorities. As there was no reason for the parents of the defendant no. 1 to give them in adoption to the defendant no. 2. Therefore, the suit has been filed by plaintiff.
8. Written statement was filed by the defendant no. 2 stating that plaintiff is misleading the court and did not approach the court with clean hands. The present suit is nothing but is an attempt to misuse the provisions of law and legal machinery. It is further averred that suit of the plaintiff is a counter blast to the petition under Section 125 Cr. PC filed by the defendant no. 2 against the plaintiff, which is pending before the court of Sh. Pradeep Chadda, Principal Judge, Family Court, Karkardooma Courts, Delhi and only motive of the plaintiff is pressurize the answering defendant to withdraw the said petition, hence the suit is liable to be dismissed. It is further averred that present suit of the plaintiff is not maintainable as the plaintiff has no locus standi to file the present suit because the plaintiff has no right to challenge the will and wish of the defendant no. 1 and even has also no right to challenge the adoption deed. It is submitted that the defendant no. 2 was/is Civil Suit No. 8809/2016 Sh. Manoj Kumar Vs. Sh. Vijay Kumar Page No. 4 of 10 having every authority to adopt the child and even at present, the defendant no. 1 and the adopted child is alive and the defendant no. 2 has every right to take his own decision and no kind of interruption or obstacle is required from the side of the plaintiff in any manner. Defendant no. 2 has every right, title or interest to use the said adoption deed as the same is genuine and authentic and the plaintiff has no right to restrain the defendant no. 2 from using the said document. Hence the suit is liable to be dismissed.
9. It is further averred by defendant no. 2 that the defendant no. 1 is the adopted son of the defendant no. 2 and defendant no. 3 is the sister in law of defendant no. 2 The defendant no. 1 was the son of the defendant no. 3 but the financial condition of the defendant no. 3 was very critical, therefore, she was unable to maintain the defendant no. 1 as the defendant no. 3 having seven children at that time and the husband of the defendant no. 3 was not having sufficient means to maintain his family and due to this reason, the defendant no. 2 adopted the defendant no. 1 as his son in the year 1993. The defendant no. 2 adopted the defendant no. 1 as his son to provide the better education and to maintain the defendant no. 1 properly.
10. Written statement was not filed on behalf of defendant no. 1 despite service.
11. Vide order dated 18.03.2016 plaintiff deleted defendant no. 3 and now only there are only two defendants i.e. defendant no. 1 Mr. Vijay Kumar and defendant no. 2 Mr. Kanwar Pal. The right of defendant no. 1 Mr. Vijay Kumar to file written statement was closed on 05.02.2015 and vide order dated 22.07.2016 defendant no. 1 was proceeded exparte.
Civil Suit No. 8809/2016Sh. Manoj Kumar Vs. Sh. Vijay Kumar Page No. 5 of 10
12. On the aforesaid pleadings of the parties, the following issues were framed by the Ld. Predecessor of court on 22.07.2016: "1. Whether the relief of declaration sought by the plaintiff is barred by the law of limitation? OPP
2. Whether the plaintiff is entitled to the declaration, as prayed for? OPP
3. Whether the plaintiff is entitled to the prohibitory injunction, as prayed for?OPP
4. Relief."
13. Plaintiff examined himself as PW 1 and filed his affidavit Ex. PW1/A and relied upon the following documents i.e. certified copy of evidence affidavit of Sh. Kanwar Pal Singh in the suit no. 300/2009 titled as Manoj Kumar Vs. Kanwar Pal Ex. PW 1/1, copy of complaint dated 28.05.2013 to the police commissioner Ex. PW 1/2 (OSR), copy of complaint dated 04.03.2013 to the vigilance director Ex. PW 1/3 (OSR)), copy of complaint dated 02.05.2013 to the passport officer is Ex. PW 1/4 (OSR) (objected to), copy of complaint dated 10.06.2013 to the vigilance director Ex. PW 1/5 (OSR) (objected to), reminder to the vigilance director dated 04.03.2013 Ex. PW 1/6 (OSR), complaint dated 24.06.2013 to the commissioner food and civil supply Ex. PW 1/7 (OSR) (objected to), copy of complaint dated 14.01.2013 to the vigilance department Mark A and copy of complaint dated 10.01.2013 to the vigilance department food and civil supply Mark B. PW 1 was cross examined by other party.
Civil Suit No. 8809/2016Sh. Manoj Kumar Vs. Sh. Vijay Kumar Page No. 6 of 10
14. Defendant no. 2 Mr. Kunwar Pal has examined himself as D2W1 and filed his affidavit Ex. D2W1/A. He was cross examined by Ld. counsel for the plaintiff at length.
15. I have heard Ld. counsel for the defendant and despite various opportunities even written arguments not filed by the plaintiff.
Issue wise discussion: Issue no. 1 Whether the relief of declaration sought by the plaintiff is barred by the law of limitation? OPP
16. Plaintiff has deposed that he came to know about the adoption of defendant no. 1 during the maintenance proceedings case u/s 125 CrPC filed by defendant no. 2 against the plaintiff in May 2013. Plaintiff during cross examination deposed that the defendant no. 2 filed the petition u/s 125 CrPC in the year 2012 but he failed to tell the exact date, month and year of adoption of Sh. Vijay Kumar. This fact that the maintenance petition was filed by the defendant no. 2 against the plaintiff u/s 125 in 2012 is not denied by the defendant no. 2. Plaintiff has filed ration card which has been admitted by defendant no. 2 Mr. Kunwarpal at the time of admission/denial on 22.07.2016 (for the purpose of identification the document is given identification Mark as AA at the time of judgment) and the said ration card was issued in name of defendant no. 2 on 10.07.1998 in which only the name of defendant no. 2, his wife Ms. Prakashi, his daughters Ms. Seema and Ms. Reena alongwith his two sons Manoj and Kishore has been mentioned, means till 10.07.1998, the name of defendant no. 1 was not included in the ration card of the defendant no. 2. Though, the alleged adoption deed Ex.PW1/D1 was executed on 16.07.1993. In the document Mark A i.e. the complaints to the Delhi Civil Suit No. 8809/2016 Sh. Manoj Kumar Vs. Sh. Vijay Kumar Page No. 7 of 10 Government regarding the preparation of voter ID card of defendant no. 1 in which father's name of defendant no. 1 has been mentioned as defendant no. 2 and the complaint was made on 14.01.2013. Plaintiff also complaint to the passport department regarding the wrong particulars of defendant no. 1 with respect to father's and mother's name in the complaint dated 02.05.2013 (Ex.PW1/4), therefore, these documents shows that the plaintiff was aware regarding the fact that the defendant no. 1 is using the name of his father before May 2013 but this does not mean that the plaintiff was aware of adoption deed Ex.PW1/D1. Plaintiff has categorically stated in his affidavit Ex.PW1/A that he came to know about the adoption deed in May 2013 during the maintenance proceedings u/s 125 CrPC by defendant no. 2 against the plaintiff and this fact of filing of proceedings u/s 125 CrPC is not denied by the defendant rather the defendant no. 2 has taken defence that the present suit of the plaintiff is a counter blast to the petition u/s 125 CrPC filed by the defendant no. 2 against the plaintiff, thereupon, this initial onus which was on plaintiff shifted upon the defendant no 2 to show that the plaintiff was aware of adoption deed Ex.PW1/D1 before filing of the petition u/s 125 CrPC but the defendant no. 2 has failed to discharged the said onus and suit was filed on 06.09.2014 within three year from May 2013 hence the this issue is decided in favour of plaintiff and the suit is within limitation period.
17. Issue no. 2 and 3 will be decided by common discussion as both the inter related to each other.
Issue no. 2 Whether the plaintiff is entitled to the declaration, as prayed for? OPP Issue no. 3 Whether the plaintiff is entitled to the prohibitory injunction, as prayed for?OPP Civil Suit No. 8809/2016 Sh. Manoj Kumar Vs. Sh. Vijay Kumar Page No. 8 of 10 The adoption deed Ex.PW1/D1 was executed on 18.07.1993. Plaintiff has taken defence that the adoption deed does not bear the signature of his mother. The conditions of valid adoption has been dealt in Section 6, Section 7, Section 9, Section 10 and Section 11 of the Hindu Adoption and Maintenance Act, 1956. As per document Mark AA i.e. Ration card of the defendant no. 2 admitted by defendant no. 2, it was issued on 10.07.1998 in which the name of plaintiff has been shown and age of the plaintiff has been mentioned as 20 years. In addition to this, in the document Mark AA name of other son of plaintiff Mr. Kishore has been mentioned and his age has been mentioned as 18 years. It means in the year 1993 when the alleged adoption deed was executed, the defendant no. 2 was having a son namely Mr. Manoj Kumar and Mr. Kishore and as per Section 11 (1) of Hindu Adoption and Maintenance Act a person must not have a hindu son, son's son, son's son's son living at the time of adoption therefore, the said condition of Section 11 (1) of Hindu Adoption and Maintenance Act has been breached by the defendant no.2 at the time of said adoption of defendant no. 1 by defendant no. 2. Section 11 is mandatory in nature as the word 'must' has been used for other conditions of valid adoption in Section 11 of Hindu Adoption and Maintenance Act, 1956. Therefore, even for the sake of arguments if it is considered that the wife of defendant no. 2 has agreed for adoption then also the alleged adoption of defendant no. 1 by defendant no. 2 is not valid due to violation of condition of Section 11 (1) of Hindu Adoption and maintenance Act, 1956. Defendant no. 1 by way of alleged document Ex.PW1/D1 has become adopted son of defendant no. 2 and will affect right and share of plaintiff, therefore, plaintiff has cause of action against defendants. Defendant no. 1 remained exparte during the trial, therefore, the testimony of plaintiff with respect to defendant no . 1 remained unrebutted Accordingly, the Civil Suit No. 8809/2016 Sh. Manoj Kumar Vs. Sh. Vijay Kumar Page No. 9 of 10 plaintiff has discharged the onus of second and third issue and the issues are decided in favour of plaintiff.
RELIEF
18. In view of the discussion above, the suit of the plaintiff is decreed and decree of declaration is passed in favour of plaintiff and against defendant no. 1 and 2 declaring the adoption deed dated 18.07.1993 of adoption of defendant no. 1 by defendant no. 2 as null and void document. Decree of prohibitory injunction is also passed in favour of Plaintiff and against defendant no. 1 and 2 stopping them from using the alleged adoption deed dated 18.07.1993. Pending applications, if any, stands disposed off. After preparation of decreesheet, file be consigned to record room after due compliance.
Announced in open Court (Sudhir Kumar Sirohi) today on 21.12.2018 ACJ/CCJ/ARC/Shahdara Karkardooma Courts/Delhi Digitally signed by SUDHIR KUMAR SIROHI SUDHIR Location: KUMAR Shahdara Karkardooma SIROHI Courts, Delhi Date: 2018.12.21 16:14:15 +0530 Civil Suit No. 8809/2016 Sh. Manoj Kumar Vs. Sh. Vijay Kumar Page No. 10 of 10