JAI PRAKASH Vs. KRISHNA DEVI

JUDGEMENT

(1.) THE present appellant filed a Suit No. 541 of 1992 against the present respondents for a declaration that he was the adopted son of one Banshi Dhar and was living with him. Banshi Dhar was a tenant in respect of the shop and house in question. On the death of Banshi Dhar, the plaintiff claimed to have become the tenant in respect of the house and shop and he made a prayer that his possession as a tenant is not to be disturbed by the respondents and the house may not be deemed vacant under the provisions of Sections 12 and 16 of the U. P. Act No. 13 of 1972. It was also alleged that the adoption was taken in 1966 and a paper was written and registered in 1981. THE plaintiff indicated that he was born in the year 1954. THE defendants included the daughters of Banshi Dhar and others. It was contended on behalf of the contesting defendants that there was no adoption as claimed and the suit was not maintainable in the Civil Court.

(2.) THE trial court (Ist Addl. Civil Judge, Sr. Div., Bulandshahr) decreed the suit on 30.1.1996. An appeal was preferred by one of the contesting defendants, which was numbered as Civil Appeal No. 22 of 1996, and it was allowed by the District Judge, Bulandshahr, on 17.7.1996, mainly on two grounds. It was held that the plaintiff could not prove adoption at all and it was further held that a declaration that the suit-property was or was not to be deemed vacant, is to be made by the District Magistrate and not by the Civil Court under the provisions of the U. P. Act No. 13 of 1972.

(3.) THERE is yet another aspect as rightly discussed by the first appellate court that any document regarding an adoption is to be signed by the persons taking and giving the child in adoption. The paper that has been proved is an unilateral declaration by Banshidhar, showing his action of adopting Jai Prakash without any statement by Hari Om that he was giving Jai Prakash in adoption. It is true, as pointed out by the appellant, that Hari Om had signed on the paper. This signature was made not as the party giving the child in adoption, but as a witness simpliciter. The paper does not indicate how and why adoption was taken, whether it was given by both the biological parents of the adoptee son and in whose presence. The first appellate court has rightly refused to take cognizance of the paper of adoption.