UMRAOLI Vs. PURAN

JUDGEMENT

(1.) This is regular second appeal directed by appellant-plaintiff against the judgment and decree dated 15.6.1998 passed by Shri R.K.Kashyap, Additional District Judge, Narnaul vide which the appeal preferred by the plaintiff against the judgment and decree dated 27.9.1991 passed by Shri T.C.Tanwar, the then Additional Senior Subordinate Judge, Mahendergarh was dismissed. The facts of the case as set up in the plaint are that Smt. Umrawali has filed suit for decree for declaration against the defendant on the allegation that she being the daughter of Mamraj is entitled to inherit his property. The defendant was never adopted by deceased Mamraj and the mutation bearing No.1053 dated 30.7.1983 regarding the suit land was RSA No. 126 of 1999 2 wrongly and illegally sanctioned in his favour. The impugned orders dated 30.7.1983, 20.12.1983 and 21.11.1985 passed by the Assistant Collector Ist Grade, Mahendergarh, the Collector Narnaul and the Commissioner, Range Hissar, Hissar respectively, vide which the disputed mutation No.1053 of the suit land has been held to be rightly sanctioned in favour of the defendant are wrong, against the law, null and void and not binding on the rights of the plaintiff. The pedigree table showing the relations of the plaintiff and the defendant is as under :- Bohta Mamraj Begh Raj Parbhu Smt.Umrawali Puran Earlier, Mamraj was the exclusive owner in possession of the suit land fully described in the head note of the plaint. After the death of Mamraj, the plaintiff being his daughter is entitled to inherit his property. The defendant was never adopted by late Mamraj through the adoption deed bearing No.46 dated 4.7.1983. The alleged adoption deed is the result of fraud misrepresentation and as such liable to be set aside. Deceased Mamraj was aged about 70 years he was hard of hearing and his eye sight was weak at the time of the execution of the disputed adoption deed dated 4.7.1983. The defendant was more than 15 years old at the time of the execution of the aforesaid adoption deed and so, he could not be lawfully adopted by Mamraj. On the basis of the disputed adoption deed, mutation bearing No.1053 dated 30.7.1983 regarding the suit land was unlawfully sanctioned in favour of the defendant. Against the mutation bearing No.1053, the plaintiff had filed an appeal which was wrongly dismissed on 20.12.1983 by the Collector, Narnaul. The plaintiff had preferred an appeal against the order dated 20.12.1983 but that too was dismissed on 21.11.1985 by the Commissioner, Hissar Range, Hissar. The plaintiff repeatedly asked the defendant to concede his claim but of no avail. Hence the suit. On notice, the defendant appeared and filed written statement denying averments of the plaint and took up preliminary objections that the plaintiff has no locus standi to file this suit, the suit is not maintainable that the suit is time barred, that the plaintiff is estopped from filing this suit by her own act and conduct that the parties to suit are governed by the custom of ZAMINDARA regarding the adoption and that the defendant is entitled to special costs under Section 35-A, CPC. On merits, it was asserted that the impugned mutation baring No.1053 was lawfully sanctioned in favour of the defendant. The impugned orders dated 30.7.1983, 29.12.1983 and 21.11.1985 were legally passed by the Assistant Collector, Mahendergarh, the Collector, Narnaul and the Commissioner, Hisar Range, Hisar respectively. The plaintiff is not the daughter of Mamraj. Denying other averments, defendant prayed for dismissal of the suit. Following issues were framed on 19.1.1987 :- 1. Whether the plaintiff is owner in possession of the land in dispute ? OPP

(2.) Whether the defendant is the adopted son of Mamraj ? OPD

(3.) Whether the plaintiff has no locus standi to file the present suit ?OPD.