Sureshwar Thakur, J.
1.The plaintiffs' suit for rendition of a decree, for permanent prohibitory injunction besides for rendition of a decree, for declaration, stood dismissed by
the learned trial Court. In an appeal carried therefrom, before the learned First Appellate Court, by the plaintiffs/respondents herein, the latter Court
allowed their appeal besides obviously reversed the trial Court's judgment and decree, hence, the instant appeal.
2.Briefly stated the facts of the case are that the plaintiffs filed a suit for declaration and permanent prohibitory injunction against the defendants. It is
pleaded by the plaintiffs that they are residents and Khewatdars of village Dhar, Pargana Nawan Nagar, Tehsil, Nalagarh, District Solan, H.P. Late
Shri Asha Ram son of Jiwanu was having 1/7th share in total land measuring 7 bighas 7 biswas, comprised in Khewat/Khatauni No.5/5, bearing
khasra Nos. 4, 11, 42, 86, 97 and 103, situated at village Panseta Hadbast No.272, Pargana Nawan Nagar, Tehsil Nalagarh, District Solan, H.P.
Similary he had also 1/6 share in total land measuring 34 bighas, 16 biswas, comprised in Khewat/Khatauni No.9/12, bearing Khasra Nos.
10,44,66,69,81,133,160,162, 257, 263, 289, 298, 308, 335, 340, 355, 376 and 433 kita 18 situated at Village Dhr, Hadbast No.274, Pargana Nawn Nagar,
Tehsil Nalagarh, District Solan, H.P. Further that he was also having 1/6 share in total land measuring 46 bighas 1 biswas, comprised in
Khewat/Khatauni No.10/13, bearing khasra No.3,25, 48, 132, 150, 163, 354, 361 kita 8, situated at village Dhr. Hadbast No.274, Pargana Nawan
Nagar, Tehsil Nalagarh, District Solan, H.P. The Proforma defendants No.7 and 8 are not available at the time of filing the suit, therefore, they have
been arrayed as proforma defendants. The plaintiffs have also no adverse interest qua the proforma defendants No.4 to 13 and they being co-sharers
of suit land have also been made proforma defendants. It is further pleaded that one Shri Jiwanu, the common ancestor of the parties had eight sons
and two daughters and disputed property was once owned and possessed by said Jiwanu during his life time. It is averred that Asa Ram, the
predecessor-in- interest of defendants No.1 to 3 being son of late Jiwanu was given in adoption to one Shri Ram Lal, son of Shri Tilak Raj, resident of
village Gusana, Tehsil Kharar, District Ropar, when he was about 14 years old because late Ram Lal son of Shri Tilak Raj was issueless, who was
serving in the Indian Railway at Kalka. Lateron late Shri Asha Ram was also employed in the Indian Railway and retired as Khalasi on 30.6.1982
from Railway Service at Kalka and he settled at Kalka with his family members defendants No.1 to 3. Deceased Asa Ram had severed his ties from
the family of his natural father Shri Jiwanu after said adoption which took place in the year 1938. Further that common ancestor of parties late Shri
Jiwanu died in the year 1956 and his entire estate including the disputed property was inherited by is all sons except late Asa Ram in equal shares. But
the mutation of inheritance NO.46 of 20.12.1956 was wrongly attested in favour of late Asa Ram because he had already been given in adoption to
late Shri Ram Lal and he had o right, title or interest to inherit the property of his natural father deceased Jiwanu. That the disputed land to the extent
of the share of said Asa Ram was inherited by other sons of late Shri Jiwanu. Hence plaintiff and proforma defendants No.7 and 8 are entitled to
inherit the same in equal share. But the present defendants No.1 to 3 are also wrongly shown as co-owners in joint possession of the land being legal
heirs of deceased late Asa Ram which entries are incorrect and liable to be set aside, who on the basis of these wrong revenue entries have sought
partition before Revenue Court. Hence the suit.
3.The suit was contested by defendants No.1 to 3 only and they have filed written statement, wherein, they have taken preliminary objections of
maintainability, estoppel, limitation etc. On merits, it is asserted by them that late Sh. Asa Ram always treated as son by his natural father Sh. Jiwanu
and the plaintiffs had earlier filed Civil Suit No.323/1 of 1996, titled as Bhag Singh and others vs. Asa Ram etc., in which late Asa Ram was
1.Whether Asha Ram was given in adoption to Ram Lal as per customs at the age of 14 years?OPP.
2.Whether, if issue No.1 is proved in the affirmative, whether said Asha Ram is not entitled for the estate of Jiwanoo?OPD.
3.Whether the plaintiff and proforma defendants No.7 and 8 are co-owners and co-sharers in joint possession to the extent of 5/7 th share in the land
14 bighas 10 biswas?OPP.
4.Whether the plaintiffs are entitled for relief of declaration, as prayed for? OPP.
5.Whether the suit is not maintainable? OPD.
6.Whether the plaintiffs are estopped from filing the present suit on account of act and conduct?OPD.
7.Whether this suit is barred by limitation?OPD.
8.Whether the suit is barred by provisions of Order 2, Rule 2 of the CPC?OPD.
9.Relief.
6.On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court, dismissed the suit of the plaintiffs/respondents herein. In
an appeal, preferred therefrom, by the plaintiffs/respondents herein, before the learned First Appellate Court, the latter Court allowed the appeal, and,
reversed the findings recorded by the learned trial Court.
7.Now the defendants/appellants herein, have instituted the instant Regular Second Appeal before this Court, wherein they assail the findings
recorded, in its impugned judgment and decree, by the learned first Appellate Court. When the appeal came up for admission, on 8.5.2008 and on
3.7.2017, this Court, admitted the appeal instituted by the defendants/appellants, against, the judgment and decree, rendered by the learned first
Appellate Court, on the hereinafter extracted substantial question of law:-
1.Whether the learned lower appelat eCourt was right in not considring the entire oral as well as documentary evidence as required of it in view of the
law laid down by the Hon'ble Apex Court reported in 2000(5) SCC 653?
2.Whether the learned lower appellate Court was right in not dismissing the suit of the respondents/plaintiffs on point of limitation, who have
challenged the mutation dated 20.12.1956 in the year 1999?
3.Whether the learned appellate court was right in not considering the admission made by none else than the plaintiff himself who admitted the status
of predecessor-in-interest of the appellants to be one of the sons of late Jiwanu, whose inheritance was in dispute?
4.Whether the learned lower appellate Court was right in reversing the categorical findings given by the learned trial Court without giving cogent
reasons?
5.Whether the learned lower appellate Court was right in holding that late Asa Ram was given in adoption more particularly when there was neither
any oral nor documentary evidence proving such adoption in accordance with law?
6.Whether the learned lower appellate Court was right in holding Ex.P-2 mutation dated 20.12.1956 to be null, illegal and void? Substantial questions of
Law No.4:
8.The apposite mutation No.46, whereunder, the estate of one Jiwanu, was, mutated vis-a-vis deceased Asha Ram along with other legal heirs, of, one
Jiwanu, was attested on 20.12.1956, whereas, the instant suit challenging the aforesaid mutation, was, instituted on 13.05.1999, by the
plaintiffs/respondents herein. The learned counsel appearing for the appellants has contended with vigour
(i) that with the apposite period of limitation warranting attraction hereat, for hence the declaratory suit of the plaintiffs, wherein, they espouse
rendition, of, a decree qua all contested entries/orders, being quashed and set aside,
(ii) for hence being construable, to fall, within the apposite statutorily enjoined period of limitation, rather, standing comprised, in the provisions borne,
in, Article 100 of the Limitation Act, wherein, a period of three years, rather stands prescribed,
(iii) and, with period thereof, hence, commencing, since, the attestation of mutation No.46, in the year 1956, qua the suit land, upon, the
defendants/appellants, along with, other legal heirs of Jiwanu, ,
(iv) whereas, with the suit of the plaintiffs/respondents herein, rather standing instituted inordinately, therefrom, hence, much beyond the aforesaid
apposite prescribed period of limitation, thereupon, the suit of the plaintiffs/respondents herein rather being barred by limitation. However, the
aforesaid submission addressed before this Court, by the learned counsel appearing for the appellants rather lacks vigour,
(v)as evidently the apposite mutation qua conferment of inheritance rights, upon, the defendants along with other legal heirs of one Jiwanu, qua the suit
land, though stood attested much prior to the filing of the suit or say in the year 1956,
(vi) yet the mere factum of its making, and, existence thereat, would not thereat per se engender any cause of action, vis-a-vis the aggrieved
plaintiffs/respondents herein, nor thereupon the belatedly therefrom, instituted suit of the aggrieved plaintiffs, attracts the bar of limitation nor hence the
date of attestation of the relevant mutations, comprise(s) the commencement, of accruals of cause of action vis-a-vis the aggrieved,
(vii) rather the commencement, of, the apposite period of limitation prescribed therein, stands engendered “on†occurrences, of, or rearing(s) of
cause of action(s) vis-a-vis the aggrieved plaintiffs,
(viii) “occurrences whereofâ€, taking place in contemporaneity of meteings, of, evident apposite threatenings, for hence dispossessing the plaintiffs
from the suit land, especially when thereupon hence they concerted to enforce the apposite orders. Moreover, the period qua limitation rather
commences when the right to sue accrues, nowat, in the instant case the said right to sue, evidently accrued to the plaintiffs, in the year 1999, whereat
the defendants threatened, to forcibly dispossess them from the suit land, (ix) also hence concerted to enforce the contentious orders, on accruals
whereof, rather hence the plaintiffs promptly instituting the suit, against, the defendants, renders it to fall within limitation. Accordingly, substantial
question of law No.4 is decided in favour of the respondents, and, against the appellants. Substantial questions of Law No.1, 2, 3, 5 & 6:
9.Through the extant suit, the plaintiffs, sought a declaratory decree, for setting aside mutation No.46, of 20.12.1956, whereunder the estate of one
Jiwanu, was mutated vis-a-vis deceased Asha Ram, along with other legal heirs, of one Jiwanu. The plaintiffs had made an attempt to reverse the
aforesaid mutation, on anvil, of Asha Ram being adopted by one Ram Lal, (I) thereupon, his being divested to seek bestowment of any right, title or
interest vis-a-vis the estate, of, his putative father one Jiwanu.
10.For facilitating any adjudication vis-a-vis the validity, of, adoption of Asha Ram, by, one Ram Lal, direct and forthright evidence, was enjoined to
emanate, from, those witnesses, who had ocularly seen, the performance of the apt ceremonies of “Datta Homumâ€. Since, the adoption of Asha
Ram by Ram Lal, his adoptive father,
(i) purportedly occurred in the year 1938, and, when hence at the stage of recording of evidence, no direct proof rather emanated qua the factum of
performance, of the apt ceremonies of “Datta Homumâ€, in the year 1938, whereat Asha Ram was purportedly adopted, as his son, by one Ram
Lal.
(ii) Nonetheless, even if the aforesaid direct evidence is amiss, yet, this Court is enjoined to assess the evidentiary worth, of indirect evidence,
(iii) wherefrom, apt inferences may be drawn, for making a pronouncement vis-a-vis, the legality of any purported adoption, of, one Asha Ram by his
adoptive father, one Ram Lal.
(iv) The learned Appellate Court had relied upon the testimony of Ramesh Kumar (PW-2), wherein, he testified, of his deceased father one Kanihya
Ram, making vis-a-vis him revelations of his father, one Jiwanu (grand father of plaintiff), giving in adoption, his natural son one Asha Ram, to Ram
Lal, in the year 1938. The aforesaid implicit reliance placed, upon, the interested testimony of the plaintiff, is per se, not worthy of any imputation of
any credence thereon, as, it ex-facie comprises, hear say evidence, and, hence is discardable besides is also discountable, on account of it being
permeated with a stain of interestedness. The learned first appellate Court also relied upon the testification, of, the widow of deceased Asha Ram,
namely, one Janaki Devi(DW-1), in testification whereof, as, occurring in her cross-examination, she made echoings, of her deceased husband,
referring to Ram Lal as his father, and, except him, his not addressing any other person, as his father. However, any imputation of any credence
thereon, by the learned first appellate Court, especially, with its occurring at the fag end, of, the cross-examination of Janki Devi, widow of Asha Ram,
is rather inapt,
(v) given hers omitting to, in her examination-in-chief, hence voice, of deceased Ram Lal, staying in the homestead of Asha Ram, and the latter hence
obviously taking care, of, him as his father. Contrarily, she in her examination-in-chief, merely testifies of Ram Lal being their neighbour, and, her
deceased husband one Asha Ram, taking care of him. The effect of the aforesaid testification, occurring, in the examination-in-chief of Janki Devi, the
widow of deceased Asha Ram, of the purported adoptive father of her deceased husband Asha Ram, namely, Ram Lal hence not staying in the
homestead of one Asha Ram,
(vi) re- emphasisingly bolsters an inference qua thereupon per se it being not formidably concludable, of dehors, hers at the fag end of her cross-
examination, rendering an echoing of her husband addressing Ram Lal as his father, and, except him, his is not addressing any other person as his
father,
(vii) qua hence, the testification of Janaki Devi paving way for errection, of, any firm conclusion, of the plaintiffs, hence, firmly proving, through, Janki
Devi, of her deceased husband being purportedly adopted by Ram Lal. Of course, in case Ram had adopted deceased Asha Ram, the latter would
surely be living with him in his homestead. Evident lack of any,of, aforesaid affirmative echoings, in the testification of Janki Devi, widow of Asha
Ram, rather hers testifying qua one Ram Lal being their neighbour,
(iii) obviously, rips apart any endeavour, of the counsel, for the plaintiffs/respondents, to, on anvil of an echoing, occurring at the fag end of the cross-
examination of Janki Devi, hence galvanize any inference of Asha Ram being adopted by Ram Lal, more so, when no direct evidence in respect of
performance of apt ceremonies, of “Datta Homumâ€, exists on record.
11.Be that as it may, the learned first Appellate Court, had relied upon an entry existing in the apposite service book, of Asha Ram, borne in Ex.P-1,
wherein, the aforesaid is reflected to be the son of Ram Lal. However, Ex.P-1 is a self serving proclamation, by Asha Ram, and would acquire vigour,
only when rather direct forthright evidence, stood adduced, comprised in a mutation, vis-a-vis the estate, of, one Ram Lal, evidently being, on the
latter's demise hence attested vis-a-vis Asha Ram. Adduction of the aforesaid documentary evidence, rather comprised, the best evidence, to make
apt clinching findings, dehors non adduction of direct evidence vis-a-vis performance, of apt ceremonies of “Datta Homumâ€. Contrarily, non
adduction thereof, hence, constrains a conclusion of the self serving proclamation in Ex.P-1, exhibit whereof comprises the extract of service book of
Asha Ram, with revelations occurring therein, of his being fathered by one Ram Lal, rather carrying no weight, and, also being not amenable, for,
rearing any firm conclusion qua the relevant purpose.
12.The above discussion unfolds the fact that the conclusions as arrived by the learned first Appellate Court being not based upon a proper and mature
appreciation of evidence on record. While rendering the findings, the learned first Appellate Court has excluded germane and apposite material from
consideration. All the substantial questions of law aforesaid are answered in favour of the the appellants and against the respondents.
13.In view of above discussion, the instant appeal is allowed and in sequel, the judgment and decree rendered by the learned First Appellate Court in
Civil Appeal No. 30-NL/13 of 2003 is set aside, whereas, the judgment and decree rendered by the learned trial Court in Civil Suit No. 145/1 of 1999
is affirmed and maintained. Decree sheet be prepared accordingly. No order as to the costs. All pending applications also stand disposed of.Records
be sent back forthwith.
