JUDGMENTTAG-JUDGMENT
Javed Iqbal Wani, J
1. In the instant civil second appeal, the appellant herein has challenged judgment and decree dated 30.03.2000 passed by the court of Sub Judge, Reasi (for short the trial court) in case tilted as “Chandu vs. Chuni Lal and another” and judgment and decree dated 14.07.2006 passed by the court of Additional District Judge, Reasi (for short the appellate court) in case titled as “Dewan Chand vs. Chuni Lal and another”.
2. Facts giving rise of the filing of the instant appeal reveal that one Chandu substituted by the present appellant, filed a suit for declaration and injunction before the trial court for setting aside an Adoption Deed dated 12.02.1985, whereunder the said Chandu was claimed to have adopted respondent 2 herein in adoption, was alleged to have been got executed fraudulently and on misrepresentation of facts by the defendants/respondents herein, stating further that in fact, no adoption had taken place, in that, the ceremonies of giving and taking were never performed, inasmuch as, the defendant 2/respondent 2 herein never lived with the said Chandu.
3. The defendants in the suit and respondents herein in response to the summons issued by the trial court appeared and filed written statement to the suit and while opposing the same, contended in the said written statement that the Adoption Deed in question came to be executed by the plaintiff Chandu voluntarily out of his own free will and was drawn and drafted at his instance and that after drafting the same was read over and explained to him, whereafter, he put his thumb impression thereon and that the adoption ceremony was also performed in accordance with the Hindu and Customary Law and that the Adoption Deed was also got registered in the court by the plaintiff Chandu and the parents of the defendant 2/respondent 2 herein, wherein the plaintiff Chandu admitted the fact of the adoption of defendant 2 respondent 2 herein besides having admitted the said adoption in his statement made in an another suit, titled as Mst. Gulan vs. Raj Kumar.
4. The trial court on the basis of the pleadings of the parties therein the said suit, framed the following issues:
(i) Whether defendant No. 2 is not the adopted son of the plaintiff as no giving and taking has taken place? OPP
(ii) Whether defendants have fraudulently got executed the impugned adoption-deed from the plaintiff misrepresenting that it was the Will-deed? OPP
(iii) Whether the valuation for the purposes of Court fee has not been fixed properly and so what is the correct valuation? OPD
(iv) Whether the valuation for the purpose of jurisdiction of the Court has not been fixed, if so what is its effect on the suit? OPD
(v) Whether the plaintiff is estopped from filing the present suit, if yes, then how? OPD
(vi) Relief.
5. The plaintiff-Chandu in order to prove the issues (i) and (ii) supra framed by the trial court could not appear as a witness as during the pendency of the suit, the plaintiff Chandu died and consequently, the present appellant came to be substituted in his place as his legal heir and he, the appellant herein appeared as a witness in place of the plaintiff-Chandu and also produced witnesses, namely, Koushal Chand, Paras Ram and Bodh Raj.
6. The defendants in the suit respondents herein also produced witnesses, namely, Daya Ram, Jagdish Dutt, Pritam Singh besides defendant 1/respondent 1 appearing as his own witness.
7. The trial court, after concluding the trial of the case and after adjudicating upon the issues framed by it on the basis of the pleadings of the parties, inasmuch as, the evidence led thereof by the parties in terms of the impugned judgment and decree 30.03.2000, dismissed the suit of the plaintiff appellant herein holding that the plaintiff failed to prove that the defendant 2 respondent 2 herein is not the adopted son of Chandu inasmuch as also failed to prove that the Adoption Deed dated 12.02.1985 was got executed by fraud or misrepresentation.
8. Aggrieved by the judgment and decree passed by the learned trial court dated 30.03.2000, the plaintiff appellant herein preferred appeal against the same on 06.07.2000 before the appellate court, which appeal in terms of impugned judgment and decree dated 14.07.2006 came to be dismissed by the appellate court upholding the judgment and decree passed by the trial court.
9. The appellant herein has challenged the impugned judgments and decrees in the instant second appeal on the following grounds:
I) That the courts below erroneously held that Adoption Deed has been registered therefore, it requires no proof in law, it is submitted that even if deed is registered, under Registration Act, no proof of its Execution is to be given, as such, execution is to be given, as such the court proceeded on a wrong assumption because the deed had been registered, therefore, it was proved. On the other hand, the law is well settled that mere registration cannot take the place of proof and amount to execution of a document, therefore, law laid down by the courts below conflicts with the law already made which is a substantial question of law.
II) That the court proceeded on the agreement of the other side that since in the ration card and in the School Certificate the parentage is not changed, therefore, the deed will be declared to be null, it is submitted that no evidence whatsoever has been led to prove these contentions and the trial court ought not to have placed reliance.
III) That in fact suit titled Dewan Chand vs. Chuni Lal and another with regard to the same land and the house is already pending between the parties in the court of Sub Judge Reasi as suit titled Pawan Kumar vs. Dewan Chand since 1.10.1991 in which the parties are the same. Copy of the plaint enclosed and it marked as Annexue-E. The next date in the court of Sub Judge Reasi i.e. pending case also validity of will is under challenge. As such all the suit ought to have been clubbed to avoid contradictory finding and multiplicity of proceedings. Attention of the District Court was invited to this aspect of the matter and it also merged from the pleadings of the parties. The court below did not take note of it which has resulted in miscarriage of justice.
Heard learned counsel for the parties and perused the record available on file.
10. Before proceeding to advert to the instant appeal, it is significant to mention here that the appellant herein did not in the first instance propose any question to be a substantial question of law involved in the instant appeal for adjudication by this Court under Section 100 of the Code of Civil Procedure(CPC), however, during the pendency of instant appeal, the appellant herein laid a motion being CM No. 1392/2024 and proposed therein the questions to be as substantial questions of law involved in the instant appeal.
11 Before proceeding further in the matter, it would be appropriate to refer to the ambit and scope of Section 100 of the CPC, which reads as under:
[100. Second appeal.--(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.
(2) An appeal may lie under this section from an appellate decree passed ex parte.
(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.
(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:
Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.]
What emanates from the provisions of Section 100 CPC supra is that sub section (1) of Section 100 CPC declares that an appeal shall lie to the High Court from every decree passed in appeal by any court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. Sub section (2) of section 100 supra allows such appeal from an appellate decree passed ex parte, whereas sub section (3) requires the appellant to precisely state in the memorandum of appeal substantial question of law involved in the appeal. Sub section (4) mandates where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question and sub section (5), enjoins upon the High Court to hear the appeal on the said substantial questions of law so formulated, while providing further that the respondent in the appeal shall be at the hearing of the appeal to argue that the case does not involve such substantial question of law. However, proviso appended to sub section (5) is an exception to the general rule laid down therein providing that nothing in the sub-section (5) shall be deemed to take away or abridge the power of the Court to hear the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question. However, while doing so the High Court is required to record reasons for such satisfaction.
The Apex Court in case titled as Pankaj Bhargava and another vs. Mohinder Nath and another reported in (1991) 1 SCC 556 has held that the High Court can admit a second appeal only if it is satisfied that the case involves a substantial question of law, and though the expression “involves” suggests that such a question must arise in the case and it is necessary to decide it, yet the mere fact that such a question is raised by the appellant in the appeal does not justify the High Court to entertain the appeal unless it is actually involved in the case, holding further that the word “involves” implies a considerable degree of necessity and does not mean that in certain contingencies a question of law might possibly arise, thus, suggesting that the existence of a substantial question of law is sine qua non for exercise of jurisdiction under Section 100 of the CPC.
The Apex Court in case, titled as Kondiba Dagadu Kadam v. Savitkibai Sopan Gujar and others, reported in (1999) 3 SCC 722, in regard to the ambit and scope of the civil second appeal has at paragraphs 4 and 5 held as under:
“4. …….It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the Section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add to or enlarge those grounds. The second appeal : cannot be decided on merely equitable grounds. The concurrent findings of facts howsoever erroneous cannot be disturbed by the High Court in exercise of the powers under this Section. The substantial question of law has to be distinguished from a substantial question of fact This Court in Sir Chunilal v. Mehta and Sons Ltd. v. Century Spinning and Manufactuing Co. Ltd, AIR (1962) SC 1314 held that :-
"The proper test for determining whether a question of law raised in the case is substantial would, in bur opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views, If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurbed the question would not be a substantial question of law."
5. It is not within the domain of the High Court to investigate the grounds on which findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court had given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible.
The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the tower appellate court were erroneous being contrary to the mandatory provisions of law applicable of its settled position on the basis of pronouncements made by the apex Court, or was based upon in inadmissible evidence or arrived at without evidence.”
It would also be advantageous to refer to the judgment of the Apex Court passed in case titled as Ishwar Dass Jain (Dead) through LRs v. Sohan Lal (Dead) by LRs reported in (2000)1 SCC 434 wherein the Apex Court after considering various earlier decisions has held that in exercise of power under Section 100 CPC after the Amended Act of 1976, the ambit and scope of second appeal has been circumscribed making it essential for the High Court to frame a substantial question of law for rendering a decision in a second appeal, having observing further that there are two situations where interference with findings of facts are permissible, firstly, when material or relevant evidence is not considered, which, if considered would have led to the opposite conclusion, and secondly, interference with findings of fact is permissible only where a finding has been arrived at by the appellate court by placing reliance on inadmissible evidence, which if it was omitted, an opposite conclusion was possible meaning thereby that if the findings of facts are perverse to the evidence, unreasonable or irrational, the interference under Section 100 CPC is permissible.
However, the Apex Court in case tilted as M. G. Hegde v. Vasudev Hegde reported in (2000) 2 SCC 213 has held that the expression “perverse”, “unreasonable” and “irrational” are of strong nature and cannot be used lightly and indiscriminately with a view to set aside the findings arrived at by the first appellate court, while holding further held that this is not a mantra that can be applied to do in a second appeal what the law enjoins it not to do.
12. Keeping in mind aforesaid position and principles of law and reverting back to the case in hand, the fundamental foundation of the case set up by the original plaintiff Chandu in the suit qua the adoption deed in question had been two fold, one that the said Adoption Deed came to be got executed by misrepresentation and fraudulently by the defendants respondents herein and that no adoption according to the Hindu Customary Law had taken place. On the contrary, the case set up by the plaintiff-Chandu in the suit came to be resisted by the defendants respondents herein had been that the adoption was valid and legal and that the Adoption Deed was voluntarily out of own free will, without any misrepresentation or fraud executed by the plaintiff-Chandu qua the adoption of defendant 2 respondent 2 herein and in furtherance of the said adoption, the plaintiff Chandu appeared before a court when the Adoption Deed was got registered and admitted its execution before the said court, besides contending that the said fact of adoption, had even been admitted by the plaintiff Chandu in another suit wherein the plaintiff Chandu had made a statement voluntarily admitting the defendant 2 respondent 2 herein to have been adopted by him.
13. Having regard to the aforesaid case set up by the plaintiff-Chandu as also the defendants respondents herein in their respective pleadings, the learned trial court as has been noticed in the preceding paras, in the first instance framed issues (i) and (ii) (supra), onus whereof was put upon the plaintiff-Chandu firstly to prove that the defendants 2 respondent 2 herein was not his adopted son and no such adoption of giving and taking had taken place and that the defendants fraudulently and by misrepresentation got the Adoption Deed executed by the plaintiff instead of a will deed.
In order to prove the aforesaid issues, as has been noticed in the preceding paras, the plaintiff Chandu though did not appear as is own witness and had died before appearing as a witness, the present appellant as legal heir of the said Chandu, appeared as his own witness and had produced Kaushal Chand, Bodh Raj and Paras Ram as his witnesses. Perusal of the statement of Dewan Chand, plaintiff appellant herein reveals that he had deposed in the witness box before the trial court that it is the defendant 1 respondent 1 herein who got the Adoption Deed executed by the original plaintiff Chandu by practising fraud, whereas Kaushal Chand, the witness produced by the plaintiff appellant herein in his statement made before the trial court had stated that he does not know whether the deceased Chandu had executed an Adoption Deed, whereas witness Bodh Raj had stated that Chandu had adopted the defendant 2 respondent 2 herein, however, has shown his ignorance about the execution of the Adoption Deed. The witness Paras Ram produced by the plaintiff appellant herein had stated that the defendant 2 respondent 2 herein was adopted, in fact, by plaintiff Chandu. Thus, what emerges from the aforesaid evidence led by the plaintiff appellant herein is that two out of his four witnesses have had admitted that the defendant 2 respondent 2 herein had been adopted by Chandu.
14. On the contrary a closer examination of the evidence led by the defendants respondents herein would reveal that the witness, namely, Daya Ram produced by the defendants respondents herein had deposed before the trial court that he and his wife had put the defendant 2 respondent 2 herein in the lap of plaintiff Chandu at the time of adoption and that Chuni Lal respondent 1 herein and his wife used to reside at that time in the house of plaintiff Chandu and had been looking after Chandu and the defendant 2 respondent 2 herein, in fact, was born therein in the house of Chandu. The said witness Daya Ram had also deposed that defendant 2 respondent 2 herein after the death of plaintiff Chandu performed his last rites. Insofar as the legality and validity of the Adoption Deed in question is concerned, Daya Ram had stated before the trial court that the plaintiff Chandu had asked the defendant 1 respondent 1 herein, Chuni Lal to give defendant 2 respondent 2 herein in adoption to him and in this connection plaintiff Chandu and defendant Chuni Lal along with their wives had come to the court and executed the Adoption Deed exhibited as EXP-AC-1 which had been written by a Petition Writer on the instructions of the plaintiff Chandu and after writing the said Adoption Deed, the Petition Writer had read over and explained its contents to plaintiff Chandu and other persons, whereafter, plaintiff Chandu put his thumb impression on the said Adoption Deed so also their witnesses put their signatures on the said Deed and that one Jagdish Dutt had put his signatures in his presence and that the said Adoption Deed was presented before the court for registration in his presence and the plaintiff Chandu put his thumb impression on the said Adoption Deed(EXP-AC-1) and identified it in the court as well wherein he had endorsed the same as identifying witness. The said witness during the cross examination, has denied that the plaintiff-Chandu had been asked by the defendants/respondents herein for execution of will deed instead of Adoption Deed or that the Adoption Deed was got fraudulently executed.
Another witness Pritam Singh of the defendants respondents herein, a Petition Writer, had before the trial court deposed that Adoption Deed (EXP-AC-1) is in the handwriting of one Amarnath Nag, Petition Writer, who is dead.
15. The trial court seemingly has dealt with the matter in the light of the aforesaid material produced before it by way of respective pleadings of the parties inasmuch as, the evidence led before it has rightly held that the plaintiff appellant herein failed to prove that the defendant 2 respondent 2 herein was not adopted by him and that no giving and taking had taken place inasmuch as that the Adoption Deed in question had been got executed by the defendants fraudulently or by misrepresentation and under the guise of a will deed.
16. Perusal of the record would reveal that the appellate court as well after having taking cognizance of the case set up by the plaintiff/appellant herein and the defendants respondents herein, including the evidence led before the trial court, inasmuch as, the case set up in the memo of appeal, has elaborately dealt with the case set up by the appellant herein and has rightly dismissed the appeal while concluding that the trial court has legally without committing any fault or perversity, dismissed the suit while heavily relying on the provisions of section 58 of the Registration Act, 1908 inasmuch as, Section 16 of the Hindu Adoptions and Maintenance Act, 1956, which for the sake of convenience and brevity needs to be referred hereunder:
16. Presumption as to registered documents relating to adoption.—Whenever any document registered under any law for the time being in force is produced before any court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved.
As is manifest from the plain reading of section 16 supra that the same envisages the statutory presumption that in the event of there being a registered document pertaining to adoption, there would be a presumption that adoption has been made in accordance with law. A reference in this regard to the judgment of the Apex Court passed in case tilted as Jai Singh v Shakuntla reported in (2002) 3 SCC 64, would be relevant wherein it has been held that the mandate of the statute is rather definite since the legislature has used expression “shall” instead of any other word of lesser significance, although the inclusion of the words “unless and until it is disproved” appearing at the end of the said Section has made the situation not that rigid but flexible enough to depend upon the evidence available on record in support of the adoption.
17. Since as has been noticed in the preceding paras, the plaintiff appellant herein has failed to disprove the validity and legality of Adoption Deed both before the trial court as well as the appellate court, this Court finds no reason to interfere with the findings recorded by the courts below in this regard, more so, the findings recorded and conclusion drawn by the courts below are based on facts and the law is settled that the concurrent findings of facts arrived at by the courts below cannot be interfered with in exercise of power under Section 100 CPC, even if, the findings of facts are erroneous, unreasonable or irrational.
18. Viewed thus, the only inescapable conclusion that can be drawn in the instant case is that no substantial question of law is involved for adjudication and the questions proposed by the appellant herein in CM 1392/2024 supra cannot by any stretch of imagination said to be substantial questions of law.
19. Resultantly the instant appeal fails and is dismissed.
20. Record of the courts below, if received in original, be sent back, after retaining scanned copies of the record of the instant file.
