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High Court Of Madhya Pradesh
K. K. LAHOTI, J.
SHAVARAM ALIAS SEVA - Appellant
Versus
UHAPUBAI - Respondents
S. A. 214 Of 1986
Decided On : 03/28/2006
Adoption - Possession of Land - Will - [Adoption] - [Possession of Land] - [Indian Succession Act, 1925, Section 63] - The court discussed the plaintiff's claim of adoption and possession of land. The plaintiff sought a decree of perpetual injunction to protect his possession of the land. The court found that the plaintiff was in settled possession of the land since the death of the landowner, and therefore entitled to protect his possession by issuance of an injunction. The court also noted that the plaintiff's claim of adoption and will in his favor had been denied by all courts, but his possession over the land was protected by the temporary injunction orders issued by the courts. The court allowed the appeal in part and decreed that the defendants shall not dispossess the plaintiff from the disputed lands without following due process of law.
Fact of the Case:
The plaintiff claimed to be the adopted son of the deceased landowner and sought a decree of perpetual injunction to protect his possession of the land. The defendants contested the suit, denying the plaintiff's claim of adoption and will in his favor. The trial court found that the plaintiff was not adopted by the landowner and had not proved his title to the land. However, the court also found that the plaintiff was in possession of the land, which was affirmed by the appellate court. The plaintiff's claim of adoption and will in his favor was denied by all courts, but his possession over the land was protected by the temporary injunction orders issued by the courts.
Finding of the Court:
The court found that the plaintiff was in settled possession of the land since the death of the landowner, and therefore entitled to protect his possession by issuance of an injunction. The court noted that the plaintiff's claim of adoption and will in his favor had been denied by all courts, but his possession over the land was protected by the temporary injunction orders issued by the courts. The court allowed the appeal in part and decreed that the defendants shall not dispossess the plaintiff from the disputed lands without following due process of law.
Issues: The main issue was whether the plaintiff, despite failing to prove his title to the land, was entitled to protect his possession by issuance of an injunction. The court also considered the plaintiff's claim of adoption and will in his favor, which had been denied by all courts.
Ratio Decidendi: The court held that the plaintiff, being in settled possession of the land since the death of the landowner, was entitled to protect his possession by issuance of an injunction. The court noted that the plaintiff's claim of adoption and will in his favor had been denied by all courts, but his possession over the land was protected by the temporary injunction orders issued by the courts.
Final Decision: The court allowed the appeal in part and decreed that the defendants shall not dispossess the plaintiff from the disputed lands without following due process of law.
"1. Whether in the facts and circumstances of the case, the learned lower appellate Court Judge committed an error of law in not passing a decree for perpetual injunction restraining the respondents from dispossessing the appellant from the suit land otherwise than in due course of law ?
2. . Whether the learned lower appellate court Judge committed an error of law in rejecting the Will, Ex. P/2, when no suspicious circumstances attending its execution were pleaded or proved by the respondents ?"
( 2 ) LEARNED counsel appearing for the appellant at the outset submitted that he is pressing his appeal so far as it relates to substantial question of law No. 1 and for substantial question of law No. 2, he is not pressing this appeal as the findings in respect of Will are findings of fact which have been recorded by both Courts below. In view of the aforesaid contentions, both the parties are heard in respect of substantial question of law No. 1
( 3 ) BEFORE considering rival contentions of the parties, it will be appropriate if facts of the present case are narrated in short.
(a) Parties are closely related to each other. Genealogical tree showing the relationship between the parties are as under: (b) Dhapubai died during the pendency of the appeal and her name has been deleted as per order dated 25-1-2006. Deobai also died during pendency of the suit and her legal heirs Radheshyam and Mangilal were brought on record. (c) The suit property has been alienated during pendency of this appeal by Mangilal and Radheshyam to Rajendra Singh by sale deed dated 7-2-2002 and he has been impleaded as respondent in this appeal. (d) Appellant filed a suit for declaration and permanent injunction in respect of certain agricultural lands of which details have been given in para 1 of the plaint and for possession of the house property of which details are also given in para 1 of the plaint. The declaration has been sought in respect of both the properties while the injunction has been sought in respect of agricultural lands and a decree for possession has been sought in respect of house property, (e) The pleadings in the plaint are :
(i) That the appellant has claimed himself to be adopted son of late Nanda. All the agricultural lands are recorded in the name of late Nanda and house is recorded in the gram Panchayat in the name of late Nanda. Nanda died four months back from the date of filing of the suit.
(ii) Uptil death of Nanda, in the suit house, plaintiff and Nanda were residing jointly. After death of Nanda, last rites and Shradh were performed by the plaintiff and as per rites, the Pagdi was also tied to the plaintiff in the presence of the Panchas and other people of the village.
(iii) Wife of Nanda died 30 years before filing of the suit. At the time of death of wife, there were only two daughters to Nanda, namely, Dhapubai and Deobai. After the death of wife of Nanda, plaintiff himself had performed the rites, Shradh and he was also tied Pagdi. After the death of wife of Nanda, he had not contracted second marriage or natra and because he was having no male issue, Nanda in the Shradh of wife adopted plaintiff as per customs in front of Panchas. Natural parents of plaintiff had given the plaintiff in the lap of Nanda. Since then, plaintiff resided with Nanda as adopted son and was cultivating the lands of Nanda. Nanda also treated him as son. Before 26 years of filing of the suit on 29-6-1953, a registered adoption-deed was executed by nanda in favour of the plaintiff in which previous customs of adoption were affirmed.
(iv) At the time of death of Nanda, he was 75 years old but because of his old age, plaintiff was cultivating the land and since last 30 years, plaintiff is in possession of the lands.
(v) That the defendants are daughters of late Nanda. They are having no right, title or intere
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