Judgment:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Rs.No.3708 of 2012 (O&M) Date of decision:
2. 9.2013 Mehtab Singh -----Appellant(s) versus General Public & another -----Respondent(s) CORAM:- HON'BLE Mr.JUSTICE RAKESH KUMAR GARG 1
Whether reporters of local newspapers may be allowed to see judgment?.”
2. To be referred to reporters or not?.”
3. Whether the judgment should be reported in the Digest?.
Present: Mr.Sumit Sangwan, Advocate for the appellant.
--- RAKESH KUMAR GARG, J.
This is plaintiff’s second appeal, challenging the judgments and decrees of the Courts below whereby suit of the plaintiff-appellant for declaration that he is son of Jailal instead of Harlal, has been dismissed.
According to the appellant, Harlal and Jailal were real brothers who have died.
Bhagwani was wife of Jailal but she died issueless.
It is the case of the appellant that he was adopted by Jailal and Bhagwani who had accepted him as their son.
It is his further case that they spent expenses on his education and Kumar Ashwani 2013.09.05 11:16 I attest to the accuracy and integrity of this document High Court Chandigarh Rs.No.3708 o”
2. marriage.
He was treated as their son and he also treated them as his mother and father and in the service record of the appellant, his father’s name is shown as Jailal.
Even in other records i.e.ration card, voter card, house tax bill, LIC, telephone etc.name of his father has been shown as Jailal.
However, in the revenue records, his father’s name has been recorded as Harlal and the same is liable to be corrected.
Thus, the appellant had filed the instant civil suit.
Notice was given to the General Public, but despite service, no one appeared on their behalf.
Respondent No.2 contested the suit, denying the adoption of the appellant by Bhagwani & Jailal.
It was submitted that she was the only daughter of Bhagwani and Jailal and that the plaintiff-appellant was the son of Harlal and Bhartho Devi who used to take care of him.
The appellant never lived with Bhagwani and Jailal as their son.
According to her, the name of father of the appellant as Jailal in school record was wrong and false.
In fact, Harlal and Bharto are clever persons.
They have got recorded the name of father of plaintiff-appellant as Jailal in the school record without the knowledge of Jailal and thus, the said record is not binding upon them.
It has been done to grab the property of defendant No.2.
After hearing learned counsel for the parties and considering the evidence on record, the trial Court came to the Kumar Ashwani 2013.09.05 11:16 I attest to the accuracy and integrity of this document High Court Chandigarh Rs.No.3708 o”
3. conclusion that the appellant is not the adopted son of Jailal.
While reaching the aforesaid conclusion, the trial Court observed as under:- “The plaintiff did not recognize himself as adopted son of Jailal because he had received the property of his natural father and has also sold the same much before from time from where the plaintiff is claiming cause of action of present case.
Moreover, the plaintiff and his two natural brothers have the name of Jailal as their father in their school record, so, it cannot be stated that Jailal adopted all the three brothers and it also shows that the plaintiff’s family wants to take benefit of love and affection of Jailal.
So, plaintiff has failed to prove any reliable proof on the case file to prove the adoption.
Hence, these issues are hereby decided against the plaintiff and in favour of defendant no.2.”
Feeling aggrieved from the aforesaid judgment and decree of the trial Court, the appellant filed an appeal before the lower Appellate Court which was dismissed.
While dismissing the appeal, the lower Appellate Court observed as under:- “There is no denying the fact that in the school record as well as in his service record, appellant has been shown to be the son of Jai Lal.
However, the fact remains as to whether the appellant is entitled to the declaration that he is the adopted son of Jai Lal or not.
FiRs.of all, this deserves to be mentioned that despite the fact that Jai Lal had expired and the Kumar Ashwani mutation of inheritance of Jai Lal had been 2013.09.05 11:16 I attest to the accuracy and integrity of this document High Court Chandigarh Rs.No.3708 o”
4. sanctioned in favour of Bhagwani Devi and Risal Kaur, Appellant had not claimed that he was entitled to the declaration that he was entitled to 1/3rd share of the property of Jai Lal.
Appellant claims that the revenue record be declared null and void and the same be corrected.
However, appellant is shy in claiming ownership of property left by Jai Lal.
The law is well settled that the relief of declaration is a discretionary relief.
A person cannot claim the declaration as a matter of right.
In the case in hand the relief of declaration to the effect that appellant is entitled to the property of Jai Lal is available to him.
However, for the reasons best known to the appellant, he has not claimed this relief.
There is another aspect of the matter.
In the mutation (Ex.D3/C) i.e.mutation of Har Lal, his natural father, appellant has been shown to be son of Har Lal.
This mutation was entered in the year 1991, on the basis of the Will of Har Lal.
Further, Section 34 of the Special Relief Act states that a Court shall not make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of titled, omits to do so.
That apart, appellant has also sold some land vide sale deeds dated 4.6.1991 and 5.12.1988.
In both the sale deeds, he had represented himself as the son of Har Lal.
The mutation on the basis of these sale deeds have been produced on the record as (Ex.DW2/A and Ex.DW2/B respectively).I am of the considered view that the appellant is not entitled to the declaration claimed by him as he being entitled to the relief of declaration that he is entitled to the property of Jai Lal has not claimed the relief in this Kumar Ashwani 2013.09.05 11:16 I attest to the accuracy and integrity of this document High Court Chandigarh Rs.No.3708 o”
5. suit and further at different points of times, he has been taking different stands.
While selling the land got by him from his natural father Har Lal, he has claimed himself to be son of Har Lal and while claiming the property of Jai Lal he claims himself to be the adopted son of Jai Lal.
That apart in Ex.D1 i.e.school leaving certificate of Jagat Singh, another brother of appellant, Jagat Singh has claimed himself as the son of Jai Lal, which shows that the family of the appellant wanted to grab the property of Jai Lal by hook or by crook.”
Still not satisfied, the appellant has come to this Court challenging the judgments and decrees of the Courts below and submitting that following substantial questions of law arises in this appeal:- “(i) Whether the judgments and decrees dated 17.3.2012 and 16.4.2012 passed by ld.
Trial Court and ld.
FiRs.Appellate Court respectively are perveRs.and incorrect in findings of facts and opposed to the evidence and is sustainable in the eyes of law?.
(ii) Whether the Trial Court wrongly relied on inadmissible/ unproved documents?.
(iii) Whether in respect of old adoption strict proof of performance of the ceremonies may be demanded?.
(iv) Whether the appellant/plaintiff has proved his adoption?.”.
Kumar Ashwani 2013.09.05 11:16 I attest to the accuracy and integrity of this document High Court Chandigarh Rs.No.3708 o”
6. In support of his case, counsel for the appellant has vehemently argued that there is ample evidence on record in the shape of school record and other service records to establish the fact that appellant is the adopted son of Jailal, whereas in the revenue records, he has been shown as son of Harlal and thus, the revenue records are liable to be corrected.
The submissions made on behalf of the appellant are liable to be rejected outrightly.
There is no evidence on record to prove the adoption of the appellant in accordance with law.
The simple fact that name of the appellant’s father has been shown as Jailal in school/service record, will not prove the factum of adoption of the appellant by Jailal.
Even before this Court, no such evidence has been shown to the Court to support the arguments raised.
In view thereof, this Court finds no merit in this appeal.
No substantial question of law, as raised, arises in this appeal.
Dismissed.
September 02, 2013 [RAKESH KUMAR GARG].ak JUDGE Kumar Ashwani 2013.09.05 11:16 I attest to the accuracy and integrity of this document High Court Chandigarh