IMPORTANT POINTS
Son includes adopted son.
Once the plaintiff mentions in the plaint that he was only son of the deceased, it was not necessary for him to specifically plead that he was an adopted son.

JUDGMENT :

A.K. Sikri, J.

Civil Appeal No. 4456 of 2016 (Arising out of SLP (Civil) No. 16486 of 2015)

Leave granted.

2. We have heard the matter finally at this stage itself with the consent of counsel for the parties because short issue relating to the admissibility of the evidence which was to be produced by the appellant before the trial court is involved.

3. The appellant herein had filed a suit in the court of Additional District Judge, Gwalior, Madhya Pradesh, which is registered as Case No. 5A of 2007.

4. The foundation laid to claim the aforesaid reliefs as per the averments of the plaint is that the appellant is the son and only legal heir of Hira Lal and Kesar Devi, both of whom have died intestate. It is further stated that Hira Lal had a brother named Mahadev Prasad and both these brothers were having agricultural land situated in Municipal Corporation of village Gospura bearing area number 23, survey number 1906, area 2 bigha 11 biswas, land survey number 1897, area 1 bigha 15 biswas, survey number 1898, area 2 bigha 7 biswas, survey number 1904, area 1 bigha 16 biswas, survey number 1907, area 3 bigha 12 biswas, which was purchased by the two brothers jointly from various sellers. It is further stated that after the demise of Hira Lal and Mahadev Prasad as well as wife of Mahadev, the appellant is the only legal heir who has right to inherit the aforesaid properties inasmuch as Mahadev Prasad died issueless. It is further claimed that the respondent herein has no right or concern in any manner whatsoever, in the aforesaid properties which was left by deceased Hira Lal and Mahadev Prasad.

5. In paragraph 5, the following averments are made to this effect:

“5. That despite of the fact that defendnt Ram Kishan Dubey has stated that any document is executed by Hira Lal and Mahadev Prasad no document is executed by Hira Lal, Mahadev Prasad, Kesar Devi or Shanti Devi in favour of Ram Kishan Dubey and nor there was any need to execute the same because their only son plaintiff was alive and he is adhibhashit being in capacity of owner and possessory title holder of all the properties left by Hira Lal and Mahadev Prasad.”

6. In the said suit the following reliefs are prayed:-

“a. That it is to be declared that sole owner and possessory title holder of all the properties left by late Hira Lal and late Mahadev Prasad is plaintiff being sole successor.

b. Permanent injunction is to be passed on this basis that defendant should not transfer any part of the property left by deceased Hira Lal and Mahadev Prasad and should not create any obstruction in the use and utilization of the plaintiff, status quo is to be maintained.

c. Litigation expenses of the case is to be provided to the plaintiff from defendant. Any other justifiable relief which Hon'ble Court deems fit and proper is to be provided to the plaintiff from the defendant.”

7. The respondent herein filed written statement and contested the aforesaid suit filed by the appellant. The respondent denied that the appellant was the son of Hira Lal. He had even moved an application for conducting DNA test of the appellant in order to prove that the appellant was not the son of Hira Lal. This application was contested by the appellant and dismissed by the trial court.

8. Thereafter, the appellant moved an application for amendment of the plaint, under Order VI Rule 17 of the Code of Civil Procedure taking a specific stand therein that he was the adopted son of late Hira Lal. The said application was dismissed by the trial court. The appellant challenged that order by filing Writ Petition No. 7500 of 2010 which was also dismissed by the High Court vide orders dated 17.01.2011. While dismissing the said writ petition, the High Court observed as under:-

“Later on, the plaintiff-petitioner filed an application under Order 6 Rule 17 C.P.C. in regard to amendment in the plaint. By way of aforesaid amendment the plaintiff-petitioner sought an amendment in the plaint to the effect that late Heeralal