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PETITIONER: RAM DAS ALIAS RAM SURAJ

       Vs.

RESPONDENT: SMT. GADIABAI & ORS.

DATE OF JUDGMENT:       20/11/1996

BENCH: N.P. SINGH, S.B. MAJMUDAR

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T      S.B. Majmudar, J.      This appeal  by special  leave to  appeal granted under Article 136 of the Constitution of India brings in challenge the judgment  and order rendered by the High Court of Bombay at Nagpur  in Second Appeal No. 310 of 1960. By the impugned judgment and  order the  learned Single  Judge of  the  High Court dismissed  the appellant-plaintiff’s Second Appeal and confirmed the  decree of dismissal of his suit for partition as rendered by the Trial Court and as confirmed by the First Appellate  Court.   We  shall  refer  to  the  appellant  as plaintiff  and   respondents  1  to  7,  heirs  of  original defendant, as  defendants for the sake of convenience in the latter part  of this  judgment. The plaintiff’s suit against the  original   defendant  Prayag   who  died   pending  the litigation was  based on  the ground  that defendant was his uncle. That  his father  Ram Prasad and the defendant Prayag were sons  of one  Balbhaddar Teli.  That plaintiff’s father and the  defendant had joint interest in the suit properties which were  inherited by  their father  from his  ancestors. That as  there was  no partition  of these properties during the lifetime  of his father on the one hand and defendant on the other  he had acquired one half undivided share in these properties along  with the  defendant who had the other half share. He,  therefore, filed  a Civil Suit No. 289-A of 1960 in the  Court of  the Civil  Judge (Junior Division), Gondia against the  defendant for  partition and  separation of his half share  in the  properties  described  in  the  Schedule attached to  the plant  and for  mesne profits. According to the plaintiff  his grandfather  Balbhaddar died  in or about the year  1911 leaving  behind  him  his  two  sons  Prayag, original defendant,  and  Ram  Prasad,  plaintiff’s  father. Plaintiff’s father Ram Prasad died in or about the year 1938 leaving plaintiff  Ram Das as his son, daughter Tulsabai and Kusumabai as  his widow.  Plaintiff was six months’ old when his father Ram Prasad died. According to the plaintiff as he was minor  the properties  after death of his father used to be managed  by the  defendant  as  ‘Karta’  of  the  family. Property was  thus in  joint possession of the parties. That plaintiff  was   staying  with  his  mother  at  Nagpur  and

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defendant used  to give  his share  in the crops every year. After  attaining   majority  he  sought  for  partition  and separate  possession   of  his  one  half  share  which  the defendant refused and hence the aforesaid suit.      The defence  of the  original defendant was there-fold. Firstly it was contended that plaintiff’s mother after death of plaintiff’s  father Ram  Prasad re-married one Ram Charan and before  her re-marriage  with Ram  Charan she  gave  the plaintiff  in   adoption  to  Ram  Charan  and  consequently plaintiff had  ceased to  belong to  the family of defendant and his  deceased father  Ram Prasad and consequently he had no right,  title or  interest in  the suit  properties.  The second defence  was that  in  the  lifetime  of  plaintiff’s father Ram  Prasad there was partition of properties and Ram Prasad was  given h s  share in  co-ownership properties and other movables  and, therefore, also plaintiff had no right, title and interest in the suit properties which on partition fell to the exclusive share of original defendant. The third defence was  that in  any case defendant had become owner of suit properties by adverse possession.      After recording  evidence the  learned Trial Judge came to the conclusion that all the three defences put forward by the original  defendant were  worth acceptance. In short the learned Trial  judge held  that the plaintiff was adopted by his step-father  Ram  Charan  before  his  re-marriage  with plaintiff’s mother  and, therefore,  plaintiff had no right, title or  interest left  in the  properties of  his deceased natural father.  It was  also held  that there was partition between  plaintiff’s  natural  father  Ram  Prasad  and  the defendant  during   the  former’s   lifetime  and  that  the plaintiff’s father  had squandered away the properties which fell to  his share  and, therefore,  also plaintiff  had  no share in the suit properties which had fallen exclusively to the share  of the  defendant on  partition. It was also held that in  any case  the defendant  had become  owner  of  the properties by adverse possession.      The plaintiff carried the matter in appeal. The learned Appellate Judge  on re-appreciation  of evidence came to the conclusion that  there was  no partition between plaintiff’s father on the one hand and the defendant on the other during plaintiff’s father’s lifetime and, therefore, the finding of the Trial  Court on  this issue  was reversed.  The  learned Appellate Judge  also held  that the defendant had failed to provide his defence that the plaintiff was given in adoption by his  mother  before  her  re-marriage  with  Ram  Charan. However the  learned Appellate Judge confirmed the decree of dismissal of  suit on  the third  ground, namely,  that  the defendant had  become owner  of suit  properties by  adverse possession. Thus  out of  the three  grounds  the  plaintiff succeeded on two grounds before the Appellate Court but lost on the  last ground.  The plaintiff  carried the  matter  in Second Appeal being Second Appeal No. 310 of 1969. A learned Single Judge  of the  High Court  agreed with the finding of fact reached  by First  Appellate Court  that there  was  no partition of  properties  between  the  plaintiff’s  natural father on  the one  hand and  the original  defendant on the other. However,  it was  further held  that the  defendant’s defence about  the adverse possession was not established on record as  it was  not proved  that the defendant had ousted the plaintiff  so far as the suit properties were concerned. Hence the  defence of adverse possession failed. Thus out of the three  defences which  had originally  appealed  to  the Trial Court  two defences  were held by the High Court to be unsustainable on  the evidence on record. However, so far as the finding of adoption in favour of the plaintiff-appellant

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was concerned  the learned  Single Judge  of the  High Court while  allowing   the  heirs   of  the  original  defendant, respondents herein,  to support  the decree  of dismissal as confirmed by  the First  Appellate Court on the finding held against them  as per the provisions of Order 41 Rule 22 Code of Civil  Procedure (‘CPC’  for short),  took the  view that plaintiff’s adoption  by Ram  Charan who subsequently became his  step-father  was  well  established  and  the  contrary finding of  the lower Appellate Court was required to be set aside and that is how the Second Appeal was dismissed on the sole ground that the plaintiff was adopted by Ram Charan and had no longer remained in the family of this deceased father and uncle,  original defendant,  and consequently  could not claim partition of the properties in question.      Mr. Bobde,  learned senior  counsel appearing  for  the appellant vehemently submitted that once the two defences of the original  defendant were  held to  be not sustainable by the learned Single Judge of the High Court his appeal should have been  allowed and  could not have been dismissed by the High Court  by interfering  with  a  pure  finding  of  fact reached by  the final  court of  facts on  the  question  of adoption as  such as  such as  exercise was  not permissible under Section  100, CPC.  In this  connection he invited our attention to  two decisions  of this  Court in  the case  of Madamanchi Ramappa  & Anr. v. Muthaluru Bojjappa AIR 1963 SC 1633 and  in the case of Bholaram v. Ameerchand (1981) 2 SCC 414 It  is now  well settled  that on a question of fact the decision rendered  by the lower Appellate Court is final and the High Court in exercise of its jurisdiction under Section 100, CPC  cannot interfere  with the findings of fact unless these findings  are found  to be  vitiated in  law. It is of course true  that the  Second Appeal  of the  plaintiff  was filed in  1969 and  it had  to be  decided according  to the provisions of  Section 100, CPC as applicable prior to their substitution by  the new  Section  100  as  brought  on  the Statute Book  by Civil  Procedure Code  Amendment Act,  1976 meaning thereby  that the appellant in Second Appeal had not to show  that the  findings reached  by the  lower Appellate Court  involved  any  substantial  question  of  law.  Still however it  had to be shown that the findings reached by the lower Appellate  Court involved  any errors  of law  as laid down by  Section 100(1)(a),  (b) and  (c) as were applicable prior to  1976. The  said provisions  as applicable prior to 1976 read as under:      "100(1).   Save   where   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  a  High      Court  on   Any  of  the  following      grounds, namely:      (a) the  decision being contrary to      law or  to some  usage  having  the      force of law;      (b) the  decision having  failed to      determine some  material  issue  of      law or  usage having  the force  of      law;      (c) a  substantial error  or defect      in the  procedure provided  by this      Code or  by any  other law  for the      time  being  in  force,  which  may      possibly  have  produced  error  or

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    defect in  the decision of the case      upon the merits."      It  is   also  true  that  Section  103,  CPC  as  then applicable to  the facts  of the  present case prior to 1976 permitted the High Court to determine an issue of fact under circumstances laid  dow under  the then existing Section 103 which read as under:      "103. In  any  second  appeal,  the      High Court  may, if the evidence on      the record  fact necessary  for the      disposal of  the appeal  which  has      not been  determined by  the  lower      appellate Court  or which  has been      wrongly determined by such court by      reason of any illegality, omission,      error or defect such as is referred      to in  sub-section (1)  of  section      100."      However  before  the  High  Court  could  exercise  its jurisdiction under  Section 100  read with  Section 103, CPC applicable at  the relevant  time in 1969 it had to be shown that the  lower Appellate  Court had  wrongly determined nay question of fact by reason of any illegal omission, error or defect as  were referred  to in Section 100, CPC. Therefore, it had  to be  demonstrated that the finding of fact reached by the  First Appellate  Court was  affected by  any of  the errors as  contemplated by  provisions of  Section 100  sub- section (1)(a), (b) and (c), CPC. So far as the facts of the present case are concerned it has to be noted that the First Appellate Court  had considered all the relevant evidence on record and  reached a  conclusion  that  the  defendant  had failed to  establish his  defence  that  the  plaintiff  was adopted by  Ram Charan  prior to  re-marriage of  his mother with Ram  Charan after  his natural father’s death. Detailed analysis of  evidence was  made by the First Appellate Court on point  no. 1  for determination to the effect whether the appellant is  the adopted son of Ram Charan. In paragraphs 8 to 12  of the  judgment of the First Appellate Court all the relevant evidence  was examined.  The First  Appellate Court disbelieved defence  witness Kaluram  who  was  examined  by original defendant  to prove  his case about the adoption of plaintiff by  Ram Charan.  The First  Appellate  Court  also noted that  the remaining  witness Babu  Lal who  is said to have remained  present at the time of adoption by Ram Charan was not  reliable. On the other hand versions in plaintiff’s evidence as  P.W.3 and  his witness  Devidin P.W.2 were held reliable. The  First Appellate  Court also  considered  that non-examination of  plaintiff’s mother  would not  result in drawing any  adverse inference against the plaintiff’s case. The circumstance  relied upon  by  the  defendant  to  prove plaintiff’s adoption  by Ram Charan, namely, that in primary school at Nagpur name of plaintiff’s father was shown as Ram Charan, was  found to  be not  a clinching  one as it was an admitted position  that after  his  natural  father’s  death plaintiff was  staying with  his step-father at Nagpur as he was a  minor staying  with his  mother who had remarried Ram Charan. Thus  relevant evidence  was  reappreciated  by  the First Appellate  Court and  a  clear  finding  of  fact  was reached that  plaintiff was  not adopted  by Ram Charan, his step-father, prior  to latter’s  re-marriage with his mother and plaintiff  was merely  staying with him as his step-son. This pure  finding of fact is interfered with by the learned Single Judge  in Second Appeal while exercising jurisdiction under Section  100, CPC.  In our view such a finding of fact based on  relevant evidence  as  arrived  at  by  the  First

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Appellate Court  was final.  It was  neither contrary to law nor to  some usage  having force  of law.  Nor had the First Appellate Court  failed to  determine any  material issue of law or  usage having  the force  of law.  Nor was  their any substantial error or defect in the procedure provided by the Code of  Civil Procedure  or by  any other  law for the time being in  force which  might possibly have produced error or defect in  the decision  on this  question. In short none of the grounds  contemplated by  Section 100(1)(a), (b) and (c) existed on  the record of the case to entitle learned Single Judge of  the High  Court to  interfere with  the finding on adoption of  plaintiff  while  resolving  the  matter  under Section 100,  CPC, even  on the basis that simplicitor error of law  also could be interfered with in those days prior to 1976. However  our attention  was invited to one observation of the  learned Single  Judge of the High Court in paragraph 16 of  the impugned  judgment wherein  the learned Judge has noted that  the lower  Appellate Court  omitted to take into account the  circumstance that the marriage of the sister of the plaintiff  was performed not by the defendant but by Ram Charan and  that there  was nothing  to  show  that  it  was defendant who  spent for her marriage and that the plaintiff was required  to accept  a job of Rs. 10 p.m. So far as this latter aspect  is concerned  a mere  look at the decision of the First  Appellate Court shows that the learned Judge as a final court  of facts  while deciding  the plaintiff’s first appeal had  already considered  the  circumstance  that  the appellant had  admitted in  his evidence  that he was saving for about 10 to 12 years in different concerns at Nagpur and that there  was his  admission  that  he  passed  a  receipt regarding his  salary to the Duttson Printing Press. However the First  Appellate Court  had not  placed reliance on this circumstance for accepting the defendant’s version that from this circumstance  alone  it  could  be  inferred  that  the plaintiff must  have been  adopted by Ram Charan. Thus it is not correct  to say that this circumstance was omitted to be considered by  the First  Appellant Court. However the first aspect, namely,  expenses on the occasion of marriage of the plaintiff’s sister  were incurred  by their  step-father Ram Charan, was  a circumstance  which was not considered by the First Appellate  Court. But in our view this circumstance is totally irrelevant  for deciding  the question  whether  the plaintiff was  the adopted  son of  Ram Charan.  It is  well established on  record and  there was  no dispute  about the same that  plaintiff’s mother  re-married Ram  Charan and at the  time  of  her  re-marriage  plaintiff  and  his  sister Tulsabai  were   the  children   from  her   first  husband; plaintiff’s father.  On re-marriage plaintiff’s mother along wi these  two children  went and  stayed  with  Ram  Charan. Thereafter if Ram Charan and spent money on their upkeep and upbringing as  step-children and even if he might have spent on the occasion of marriage of his step-daughter Tulsabai it would not  mean that  the  plaintiff  would,  therefore,  be treated to  have been adopted by his step-father. Therefore, the  aforesaid   circumstance  of  marriage  expenses  being incurred by  Ram Charan so far as his step-daughter Tulsabai was concerned,  was totally an irrelevant circumstance which had no  impact on the finding of plaintiff’s adoption by Ram Charan. It,  therefore, cannot  be said  that  any  material evidence having  a direct impact on the decision of the case on merits  was ignored  by the  First Appellate Court as the final court  of facts while arriving at the finding that the plaintiff was  not adopted  by Ram  Charan. Consequently  it must be held that the learned Single Judge of the High Court was not  legally justified  in interfering  with  the  clear

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finding of  fact arrived  at by the First Appellate Court in favour of  the plaintiff  on the  issue of  adoption and the First Appellate  Court’s finding  that the plaintiff was not adopted by  Ram Charan  must be treated to have been finally established on  record. Once  that  conclusion  is  reached, result automatically  follows. The other two defences raised by the  original defendant  are not  accepted  by  the  High Court. Consequently  there remains  no impediment in the way of the  plaintiff in  getting his suit decreed. In fact once the finding of adoption as arrived at by the High Court goes out of  the way  of  the  plaintiff,  and  as  on  both  the remaining defences  the learned  Single Judge  has  held  in favour of the plaintiff his second appeal was required to be allowed instead  of being  dismissed. We have, therefore, to pass an appropriate order in this connection.      In the  result this appeal is allowed. The judgment and decree of  dismissal of  plaintiff’s suit  as passed  by the Trial Court and as confirmed by the First Appellate Court as well as  by the  High Court  are set  aside. The plaintiff’s suit for  partition and  separation of his one half share in the suit properties as described in the Schedule attached to the plaint is decreed. A preliminary decree for partition as per the provisions of Order 20 Rule 18, CPC is ordered to be passed in  favour of  the plaintiff-appellant.  In the facts and circumstances  of the  case there will be no order as to costs.