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PETITIONER: RAIMATI SAHUANI

       Vs.

RESPONDENT: PANKAJA SAHU (DEAD) BY LRS. & ORS.

DATE OF JUDGMENT08/09/1995

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. HANSARIA B.L. (J)

CITATION:  JT 1995 (9)   591        1995 SCALE  (5)447

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      The  learned  counsel  appearing  for  the  respondents states that  in spite of his repeated letters written to the respondents he  did not  receive any  response. On April 21, 1995, we  had given  four weeks  time to the counsel for the respondents at  his request. Today also, he has repeated the same and  requested another  chance but  we decline to grant further adjournment.      We have  heard learned  counsel for  the appellant. The appellant-plaintiff laid  the suit  for declaration of title and for possession. Her case is found on the undisputed fact that her  father Urddhaba is owner of 88 acres of the plaint property. She  claims that the respondents are not concerned with the  property in  whatsoever  manner  but  remained  in possession. The  respondents set  up the  plea of  adoption. Admittedly, the  predecessor in  interest of  respondents is brother’s son  of the Urddhaba. The trial court accepted the plea of  adoption and  dismissed the  suit. In  First Appeal 196/77, by  judgment and  decree dated December 3, 1992, the learned single judge of the High Court confirmed the decree. Hence, this appeal by special leave.      The learned  counsel for  the appellant  contended that the  respondent   in  the  written  statement  pleaded  that Urddhaba was  50 years  old when his first wife Mahadei died and his  second wife had given birth to one daughter and one son who died later. He had requested his natural father, the defendant, to  give adoption.  As a  result  he  became  the adoptive son  of Urddhaba. The first respondent claimed that he was  practically adopted  when he  was one year old child and remained  in the  adopted  family.  The  adopted  father Urddhaba died  in 1938. As a consequence, he claimed to have succeeded to  the father’s estate as a sole son. Counsel for the  appellant   contended  that   this  plea   is   clearly unsustainable when  it is  taken note of is that the natural father had  lost five  children and  the defendant being the

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only son,  it would  be highly  improbable that  the natural father would  lose his  only son and give him in adoption to Urddhaba. He  also contended that from 1912 till 1950, there is no  documentary evidence  to establish that the defendant was an  adopted son  of Urddhaba.  The only  entry is in the electoral roll  of 1950  in which his claim to be the son of Urddhaba, which  could be  at any  rate be  a  self  created document. Reasons  given by  the courts  below  are  clearly unsustainable. He  has drawn  our attention to the statement that Urddhaba  was 35  years old  at the time of adoption in the year  1912 and that was clearly show that Urddhaba would not be inclined to take the first respondent in adoption.      In  view  of  the  fact  that  the  respondent  is  not represented by  a counsel  and since  it is  a matter  to be examined in  detail, we  do not feel inclined to go into the facts in this case. The learned counsel stated that there is voluminous documentary  evidence in proof of the appellant’s case and  the High  Court had  not adverted  to the material documentary   evidence   and,   therefore,   case   requires reconsideration. We  deem it appropriate that the High Court would dispose the appeal afresh after giving hearing to both the parties and decide the matter as per law.      The appeal  is allowed accordingly and the judgment and decree of  the High  Court  are  set  aside  and  matter  is remitted for early disposal. No costs.