Validity of adoption and possession rights in adoption disputes.

Both these appeals are under section 100 of the Code of Civil Procedure. It is a case in which both the plaintiff as well as defendant in the suit are not satisfied with the judgment and have challenged the judgment and decree passed by the first appellate court of Addl. District Judge, Reasi. But while the defendant has challenged the judgment and decree of both the trial court as well as 1st. Appellate Court the plaintiff is aggrieved of the decree of the 1st. Appellate Court only. The facts of the case are that the plaintiff Mangi Ram adopted defendant Gain Chand as son. An adoption deed dated 22.01.1983 has also been executed. Soon after he filed suit for cancellation of the adoption deed on the ground that since defendant was already married at the time of adoption so his adoption was void-ab-initio.

As a consequential relief he prayed that defendant be restrained from dispossessing the plaintiff from the house and the land owned by him.

2. The suit was resisted by the defendant on the plea that there was a custom in the Harijan Community permitting adoption of a married person. It was further pleaded that the defendant was adopted when he was a child and not after his marriage. On these pleadings following issues were framed by the trial court:

1. Whether the defendant can not become legally the adopted son of the plaintiff, if so, how? OPP

2 Whether the adoption deed in question is null and void, if so, how? OPP

3. Whether the giving and taking ceremony has not been performed? OPP

4. In case issue No.3 proved, whether as per custom prevalent in the community of the parties (sister™s son or a married person can be also taken in adopted? OPD

5. Whether the suit of the plaintiff is not maintainable, if so how? OPD

6. Whether the valuation of the suit has not been correctly fixed, if so, what is the correct valuation of the suit and court fee? OPD

7. Relief.

3. The suit was decreed by the court of Sub-Judge, Reasi vide its judgment and decree dated 30.12.1992 holding that the petitioner was married at the time of adoption and such a adoption was void-ab-initio because u/s 10 (iii) the defendant was married at the time of alleged adoption and there was neither any custom or usage applicable to the parties which permitted him to be adopted as a married person. The finding of the trial court on issue No. l has been affirmed by the 1st. Appellate Court of Addl. District Judge, Reasi by judgment and decree dated 30.12.1992.

4. However, while the Sub-judge decreed the suit as a whole directing the defendant not to interfere with the plaintiffs possession of the land, the 1st. Appellate Court while upholding that the adoption was invalid dismissed the suit on the ground that the plaintiff being out of possession suit for declaration and injuction was not maintainable without seeking relief of possession. So while the plaintiff challenged this part of the judgment in so far as the suit has been dismissed on the ground that declaration was not the relief, defendant challenges the judgment of both the trial court as well as 1st. Appellate Court on the ground that he was validly adopted as a child and it was the plaintiff who arranged his marriage after adoption.

5. So far as defendants appeal is concerned, the concurrent finding of the fact can be interfered only if it is based on no evidence or appreciation of the evidence is perverse by the courts of facts. It is admitted fact that the natural father of the defendant is Bijan who has appeared as his witness. It is in his statement that at the time he gave the defendant in adoption he was a married person and was also a father of his eldest daughter. Despite this he was not cross-examined by the defendant. This apart, the parties have examined number of witnesses to prove as to whether defendant was adopted before or after his marriage and this evidence has been appreciated by the two courts of facts both have come to the conclusion that at the time of his adoption he was a married person. It

Click Here to Read the rest of this document