RAMWATI Vs. SAMANI BAI

JUDGEMENT

(1.) This second appeal preferred by the defendant / appellant herein was admitted for hearing on 16-7-2020 by formulating the following substantial question of law: -

(2.) Budu had two sons namely Goga and Dayaram. The defendant is daughter of Goga, whereas plaintiff Samani Bai is wife of Sohan and according to the plaintiff, Sohan is the son of Dayaram, which is seriously disputed by other side. The plaintiff filed suit for permanent injunction simpliciter stating inter alia that the suit property was purchased by her father-in-law on 6-5-1957 for a cash consideration of Rs. 80/- and he was in possession during his lifetime and after death of her father-in-law Dayaram, Sohan has inherited the property and was in possession of the same and thereafter, Sohan also died and thereafter, she is in possession which was interfered by the defendant in which the defendant claimed declaration of title and sought the relief of possession by fling counter-claim stating that inter alia that Dayaram died issueless, Sohan is not the son of Dayaram, therefore, she being the sole survivor, she would succeed the property of Dayaram. The trial Court dismissed the suit holding that Sohan was not son of Dayaram and the property being of Dayaram, the plaintiff would not succeed to it and the defendant would succeed to the same being the niece of Dayaram which the first appellate Court reversed by holding that Sohan was adopted son of Dayaram against which this second appeal has been preferred in which substantial question of law has been formulated which has been set-out in the opening paragraph of this judgment.

(3.) Mr. Rakesh Pandey, learned counsel appearing for the appellant herein / defendant, would submit that there is no whisper or any pleading in the plaint filed by the plaintiff or in reply to the counterclaim filed by the defendant in response to the claim of the plaintiff that Sohan was adopted son of Dayaram, yet the first appellate Court reversed the finding of the trial Court holding that Sohan was adopted son of Dayaram, which is wholly perverse to the record particularly when there is no pleading with regard to the claim that Sohan was adopted son of Dayaram. He relied upon the decisions of the Supreme Court in the matters of Nandkishore Lalbhai Mehta v. New Era Fabrics P. Ltd. and others , 2015 AIR(SC) 3796 and Anathula Sudhakar v. P. Buchi Reddy (dead) by LRs. and others , 2008 4 SCC 594 to buttress his submission as the plaintiff was required to seek declaration as there is cloud raised over her title which Sohan being not the son of Dayaram, therefore he has no right, title and interest over the suit property and as such, judgment and decree of the trial Court deserve to be set-aside and that of the trial Court be restored.