OM PARKASH Vs. MAN SINGH

JUDGEMENT

(1.) THIS appeal filed under Section 41 of the Punjab Courts Act, 1918 is directed against the judgment and decree dated 9.11.1984 passed by the learned Addl. District Judge (I) Jind whereby the judgment and decree of the Sub Judge, Safidon dated 25.1.1983 has been upheld and the appeal has been dismissed.

(2.) THE trial Court on issue No. 1 has held that the plaintiff-appellant was not adopted by one Fatta vide registered adoption deed No. 107 dated 10.3.1971. It is property of Fatta which is subject matter of litigation. However, the afore-mentioned finding of the trial Court has been reversed by the learned lower appellate Court holding that the factum of adoption was not denied by the defendant-respondents and therefore it held that the adoption was deemed to be proved. Likewise, on issue No. 4, the trial Court had held that the plaintiff-appellant was estopped from filing the suit on the account of his presence at the time of mutation. The afore-mentioned finding was also set aside by the learned lower appellate Court by holding that mere presence of the plaintiff-appellant at the time of mutation was not to operate as estoppel against him from claiming title in the suit land being adopted son of Phata. Accordingly, the finding recorded by the trial Court was set aside. On issue No. 5, the trial Court had held that the suit was barred by time holding that the limitation to challenge the mutation was one year. However, the learned lower Appellate Court held that the suit for possession filed by the plaintiff-appellant on the basis of title was not barred by time because under Article 65 of the Indian Limitation Act, 1963 it was within time unless the defendant-respondents could prove to have become owner by way of adverse possession. There was no plea raised by the defendant-respondents to the effect that they had become owner by adverse possession and therefore it was held that the suit of the plaintiff-appellant was within time.

(3.) WHEN the appeal was admitted by this court on 8.2.1985 no question of law was framed nor any question of law is available in the memorandum of appeal. The Will having been found to be genuine had led to the consequence of affirmation of judgment and decree passed by the trial Court subject to the modifications on finding on adoption etc.