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Pati Raj v. Shyam Laut - SECOND APPEAL No. 706 of 1985  RD-AH 9350 (16 May 2007)
Judgment reserved on 30.4.2007
Judgment delivered on 16.5.2007
Second Appeal No. 706 of 1985
Pati Raj Vs. Shyam Laut & Ors.
Second Appeal No.707 of 1985
Ram Man & Ors. Vs. Shyam Laut & Ors.
Hon. Dilip Gupta, J.
These two Second Appeals arise from Civil Appeal No.362 of 1982 and Civil Appeal No.385 of 1982 which were decided by a common judgment and decree dated 14th December, 1984 and have accordingly been heard together.
Original Suit No.319 of 1979 had been instituted by Shyam Laut for perpetual injunction alleging that the land in question was courtyard of his house and he had been using it for tethering the cattles. It was stated that Bali Raj had no issue and, therefore, he adopted the plaintiff and had also executed a registered adoption deed on 23rd August, 1969. The defendants threatened to dispossess the plaintiff from the eastern courtyard and, therefore, the suit was filed for perpetual injunction.
Original Suit No.390 of 1979 was instituted by Pati Raj for partition of the house and the land. It was alleged that Bali Raj, Mani Ram, Phurguddi, Bihari and Patiraj were real brothers and while Phurguddi and Mani Ram had separated, Bali Raj, Bihari and Pati Raj lived jointly as members of a joint Hindu Family and they constructed the house on the site which was rebuilt with tiles some years ago from the joint Hindu Family fund of which Bali Raj was the Manager. The plaintiff wanted the partition to which the defendants did not agree and hence the suit was instituted.
Both the suits were consolidated and tried together. Original Suit No.319 of 1979 was taken as the leading case.
The Trial Court dismissed Original Suit No.319 of 1979 filed by Shyam Laut whereas Original Suit No.390 of 1979 filed by Pati Raj was decreed declaring the share of the plaintiff as half in the suit land and the other half of Bihari but Shyam Laut was denied any share. Shyam Laut who was the plaintiff in Original Suit No.319 of 1979 and defendant no.2 in Original Suit No.390 of 1979 felt aggrieved and filed Civil Appeal No.362 of 1982 against the judgment and decree rendered in Original Suit No. 319 of 1979 and Civil Appeal No. 385 of 1982 against the judgment and decree rendered in Original Suit No. 390 of 1979. Both the Appeals were also consolidated and Civil Appeal No.362 of 1982 was taken as the leading Appeal.
The Appellate Court observed that the pedigree indicated by Shyam Laut in Original Suit No. 319 of 1979 was correct and the same is as follows:-
Bali Raj Mani Ram Phurguddi Bihari Pati Raj
Shyam Laut Uma Kamlesh
The Lower Appellate Court noticed that there was no dispute regarding the fact that Mani Ram and Phurguddi had separated and that Pati Raj, Bali Raj and Bihari lived jointly after the separation of Mani Ram and Phurguddi. The Appellate Court then went on to discuss the evidence and on its basis arrived at a conclusion that Shyam Laut had an exclusive title over the land shown by letters M, N, A and D and therefore Original Suit No. 319 of 1979 filed by him was decreed against defendant nos. 1 to 5 but dismissed against defendant no.6. Defendant nos. 1 to 5 were permanently restrained from interfering with possession of the plaintiff over the disputed property. It needs to be mentioned that defendant no. 6 in Original Suit No. 319 of 1979 was Pati Raj.
The Lower Appellate Court then examined whether Shyam Laut had been adopted by Bali Raj because if the adoption was proved, then his share in the property would be 1/3rd because the share left by Bali Raj would devolve upon him by inheritance as his adopted son. The Lower Appellate Court on the basis of the evidence, both oral and documentary, came to the conclusion that it was fully established that Shyam Laut had been adopted by Bali Raj and, therefore, he would be entitled to 1/3rd share by inheritance and, accordingly, the shares of Pati Raj and Bihari were also declared as 1/3rd each in the disputed property. The Lower Appellate Court, therefore, modified the decree in Original Suit No. 390 of 1979 to the extent that the share of plaintiff Pati Raj was declared to be 1/3rd and the shares of Bihari and Shyam Laut were also declared to be 1/3rd each.
Second Appeal No.706 of 1985 has been filed against the judgment and decree in Civil Appeal No.385 of 1982 which arose out of Original Suit No. 390 of 1979 while Second Appeal No.707 of 1985 has been filed against the judgment and decree in Civil Appeal No. 362 of 1982 which arose from the judgment and decree in Original Suit No. 319 of 1979.
I have heard Sri P.S. Tripathi, learned counsel appearing for the appellants in both the appeals and Sri Ravindra Rai, learned counsel for the respondents.
The substantial questions of law framed in Second Appeal No.706 of 1985 are as follows :-
"1. Whether the adoption deed purporting to have been executed on 26.8.69 has been duly proved according to law and could be taken into consideration and whether on it the judgment could be based?
2. Whether certified copy of the adoption deed could be admitted in evidence in complete disregard of Order 41 Rule 27 CPC?"
The substantial questions of law framed in Second Appeal No.707 of 1985 are as follows :-
"1. Whether the deed of adoption purporting to have been executed on 26.8.69 has been duly proved according to law and could be taken into consideration and whether on it the judgment could be based by the Courts below?
2. Whether the two Courts below were justified in not accepting the copy of the adoption deed on the record and relying upon it in complete disregard of Order 41 R. 27 CPC?
3. What will be the effect of the allotment of the disputed land by the Gaon Sabha to the defendant and the absence of the evidence on the side of the plaintiff claiming benefit under Sec. 9 of the U.P.Z.A. & L.R. Act?"
Learned counsel for the appellant submitted that only a photostat copy of the adoption deed dated 26th June, 1969 had been filed and the plaintiff had failed to prove the alleged adoption deed according to law. He further submitted that the original adoption deed could not have been accepted by the Lower Appellate Court under Order 41 Rule 27 of the Code of Civil Procedure, 1908 (hereinafter referred to as ''CPC') and nor were the conditions stipulated in Sections 10 and 11 of the Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as the ''Adoption Act') regarding adoption fulfilled.
Learned counsel for the respondents, however, submitted that in the Trial Court the certified copy of the adoption deed had also been filed and that the same was duly proved. The original deed was also filed before the Appellate Court and it was admitted in evidence under Order 41 Rule 27 CPC. He further submitted that appellants had not raised any issue regarding Sections 10 and 11 of the Adoption Act before the Courts below and, therefore, could not be permitted to raise this issue in this Court.
The plaintiff had filed a photostat copy of the certified copy of the adoption deed dated 26th August, 1969 as well as the certified copy of the said deed. The plaintifff had examined Sri Pati Singh who was the marginal witness in the adoption deed as PW-1. He stated in his deposition that Bali Raj had executed and got registered the said adoption deed in his presence and had put his thumb mark in the deed. He also stated after seeing the photostat copy of the certified copy of the adoption deed that this was the adoption deed which was executed by Bali Raj. During the pendency of the Civil Appeal before the Lower Appellate Court, the plaintiff also filed the original adoption deed under Order 41 Rule 27 CPC as he had then obtained it from the Revenue Court where he had earlier filed it. It is, therefore, clear that the plaintiff had filed the photostat copy of the certified copy of the adoption deed as well as the certified copy of the adoption deed in the Trial Court and had also filed the original adoption deed before the Lower Appellate Court. The original adoption deed filed before the Appellate Court had been accepted as additional evidence under Order 41 Rule 27 CPC.
Learned counsel for the appellant, however, urged that the Appellate Court committed an illegality in accepting the additional evidence and that no opportunity was given to him to file evidence in rebuttal after the original deed was accepted by the Lower Appellate Court. He, therefore, submitted that the judgment of the Lower Appellate Court placing reliance upon the original deed suffers from infirmity.
This contention of the learned counsel for the appellant cannot be accepted. In the first instance this issue was not raised by the appellant before the Lower Appellate Court and, therefore, cannot be permitted to be raised in Second Appeal for the first time. This apart, a perusal of the order dated 6th January, 1984 passed by the Lower Appellate Court in Civil Appeal No. 362 of 1982 allowing the application for filing certain additional evidence clearly shows that after the application was allowed and the evidence was permitted to be filed, opportunity was granted to the appellant to file documents in rebuttal.
The Lower Appellate Court while allowing the application by a detailed order noticed that the Trial Court had drawn adverse inference as the original adoption deed had not been filed even though the certified copy of the original deed from the Registrar's office and a photostat copy of the certified copy of the deed had been filed. It allowed the application filed by the plaintiff for filing the original adoption deed as the document was then not in possession of the plaintiff-appellant since he had filed the same in some other case in District Gorakhpur and the plaintiff could file the same only after getting it back to remove obscurity regarding its actual existence or genuineness.
In Shivajirao Nilangekar Patil Vs. Dr. Mahesh Madhav Gosavi & Ors., AIR 1987 SC 294 the Supreme Court observed :-
"............The basic principle of admission of additional evidence is that the person seeking the admission of additional evidence should be able to establish that with the best efforts such additional evidence could not have been adduced at the first instance. Secondly the party affected by the admission of additional evidence should have an opportunity to rebut such additional evidence. Thirdly, that additional evidence was relevant for the determination of the issue."
In Karnataka Board of Wakf Vs. Government of India & Ors., (2004) 10 SCC 779, the Supreme Court observed :-
"................. The scope of Order 41 Rule 27 CPC is very clear to the effect that the parties to an appeal shall not be entitled to produce additional evidence, whether order or documentary, unless they have shown that in spite of due diligence, they could not produce such documents and such documents are required to enable the court to pronounce proper judgment. .........."
The plaintiff could not have filed the original adoption deed in the Trial Court as it had been filed in some other case and it is during the pendency of the Civil Appeal that he obtained it and then filed it as additional evidence. This document was relevant for the determination of the issue. Cogent reasons have been given and the said order does not suffer from any infirmity. The Appellate Court was, therefore, justified in accepting the additional evidence under Order 41 Rule 27 CPC by the order dated 6th January, 1984.
Even otherwise, Secondary Evidence can be given under Section 65 of the Indian Evidence Act, 1872 (hereinafter referred to as the ''Evidence Act') in respect of cases specified in the section which includes a case where the party offering the evidence could not produce it for reasons not arising from his own default in a reasonable time. The Lower Appellate Court accepted the Secondary Evidence as the plaintiff could not file the original document as it had been filed in the Revenue Court in some other proceedings. Under Section 63 of the Evidence Act, a certified copy can be received as Secondary Evidence and in the present case the certified copy of the adoption deed had been filed after obtaining the same from the Registrar's office. The documents had also been proved by the plaintiff inasmuch as the plaintiff had examined Sri Pati Singh who was the marginal witness of the adoption deed and he had deposed that the adoption deed had been executed and registered in his presence. He also deposed that Bali Raj had signed the deed in his presence and thumb mark was put by Gani Pati (wife of Bali Raj) and also Bihari in his presence. Ram Laut PW-3 also stated that the ceremony of adoption had taken place on 21st August, 1969 and the deed was executed subsequently. He also stated that in the ceremony Shyam Laut was given in adoption by his natural father Bihari in the lap of his adoptive father Bali Raj and mother Gani Pati. He also deposed that other festivities were also performed. The Lower Appellate Court observed that Ram Laut was a person belonging to the family and was the real cousin of Shyam Laut and was, therefore, equally interested in Shyam Laut and Pati Raj and he had also deposed about the performance of ceremony of the adoption and actual giving and taking of Shyam Laut in the adoption. There was, therefore, no reason to disbelieve this witness.
In this view of the matter, apart from the fact that the original deed had also been filed in the Appellate Court and was duly accepted as additional evidence, the Secondary Evidence in the form of the registered copy of the adoption deed had also been filed before the Trial Court. The plaintiff had succeeded in proving the adoption deed. The Lower Appellate Court was, therefore, justified in reversing the finding recorded by the Trial Court that Secondary Evidence could not be accepted as the plaintiff had failed to prove that the original of the document had been destroyed. It needs to be mentioned that loss of the document is not the sole ground for accepting the Secondary Evidence as it can also be accepted if the party offering the additional evidence cannot produce it for reason not arising from his own default within a reasonable time.
The last contention of the learned counsel for the appellant that the conditions stipulated in Sections 10 and 11 of the Adoption Act had not been complied with cannot also be accepted inasmuch as this was not an issue raised by the appellant before the Lower Appellate Court. Section 16 of the Adoption Act clearly provides that whenever any document registered under any law 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 made in compliance with the provisions of the Act unless and until it is disproved. It was, therefore, imperative for the defendant to have filed evidence in rebuttal of this presumption but he did not do so.
Learned counsel for the appellant did not make any submission regarding the third substantial question of law framed in Second Appeal No.707 of 1985.
There is, therefore, no merit in both the Second Appeals. They are, accordingly, dismissed.
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