SANTOSH KUMAR JALAN Vs. CHANDRA KISHORE JALAN

JUDGEMENT

(1.) This Second Appeal by the Defendant 1st Party of Title Suit No. 17 of 1983 of the Court of 5th Subordinate Judge, Munger is directed against the judgment and decree of the 12th Additional District Judge, Munger, upholding the judgment and decree of the trial Court, decreeing the plaintiff's suit. It may be mentioned here that the said suit was tried analogous with Title Suit No. 104 of 1984 instituted by the appellant. While Title Suit No. 17 of 1983 was decreed Title Suit No. 104 of 1984 was dismissed. It may also be mentioned here that the Second Appeal arising out of Title Suit No. 104 of 1984, which was disposed of by a common judgment, being Second Appeal No. 159 of 1993 has been dismissed by a learned Judge of this Court vide judgment reported in 1999 (3) Pat LJR 45. The question of law raised in this appeal being the same as in the other appeal, in the ordinary course this appeal should have been dismissed summarily as being covered by the inter-party decision in the other appeal. Another learned Judge of this Court before whom this appeal came up for hearing under Order 41, Rule 11, CPC however referred it to a Division Bench noticing the conflict between the decisions of the Andhra Pradesh High Court and Bombay High Court in Yarlagadda Nayudamma v. Government of Andhra Pradesh, AIR 1981 Andh Pra 19 and Devgonda Raygonda Patil, v. Shamgonda Raygonda Patil, AIR 1992 Bombay 189, respectively, though without doubting the correctness of the decision of this Court in the other appeal so (sic). That is how this appeal came up before us.

(2.) Title Suit No. 17 of 1983 giving rise to the present appeal was filed by Chandra Kishore Jalan, who is respondent No. 1 in this appeal (to be referred hereinafter as 'the plaintiff'), for declaration that the panchanama dated 16-11-1980 cancelling the adoption of defedant 1st party i.e. Santosh Kumar Jalan, appellant herein, by defendant second party Radha Krishna Jalan was illegal, inoperative, null and void and not binding on the parties. The plaintiff further sought declaration that defendant 1st party was member of the joint family of the defendant 2nd party by virtue of the adoption dated 17-2-1966. Title Suit No. 104 of 1984 was instituted by Santosh Kumar Jalan i.e. appellant herein for declaration that there had been previous partition of the suit properties or, alternatively, if his case of previous partition is not accepted, for a decree of partition of his half share in the property which is a house bearing Holding No. 152 standing on Municipal Plot No. 349A at Bekapur in Munger town. i.e.

(3.) So far as the facts of the case are concerned, for the purpose of second appeal it may suffice to state that the parties i.e. Chandra Kishore Jalan and Santosh Kumar Jalan were full brothers by birth. On 17-2-1966 their father Dwarika Prasad Jalan with the consent of his wife gave the latter in adoption to defendant 2nd party after performing ceremonies in presence of the relatives and friends.The case of the plaintiff is that by virtue of adoption dated 17-2-1966 defendant 1st party became member of the joint family of his adoptive father and stood divested of his rights and obligations as member of the joint family of his natural father. After death of Dwarika Prasad Jalan in 1968 plaintiff thus alone injherited his estate. Defendant 2nd party had brought up defendant 1st party and got him settled in life as his son. In 1980, however, they fell apart and decided to end the relationship (of adoptive father and adopted son). A panchayati was held and on 16-11-1980 so-called panchanama was prepared to the effect that the adoption dated 17-2-1966 was invalid. The plaintiff in the circumstances filed the suit seeking declaration with respect to the panchanama and status of the defendant 1st party, as indicated above.Defendant 1st party i.e. appellant herein thereafter filed Title Suit No. 104 of 1984 seeking relief as indicated above. Briefly stated his case is that adoption dated 17-2-1966 was not valid and he never ceased to be member of the family of his natural father. According to him. Dwarika Prasad Jalan i.e. his father had taken loan from Radha Krishna Jalan i.e. defendant 2nd party which he could not repay. He requested him to take defendant 1st party in lieu of the repayment of loan and that is how he came to be associated with defendant 2nd party.The trial Court held that adoption of the appellant was valid and it could not be revoked, and being adopted son defendant 2nd party cannot claim any share in the suit property. On these findings it dismissed the suit instituted by the defendant 1st party i.e. Title Suit No. 104 of 1984 and decreed the plaintiff's suit i.e. Title Suit No.17 of 1983. After the appeals preferred against the said judgment were dismissed by the lower appellate Court defedant 1st party came to this Court in Second Appeal No. 158 of 1993 i.e. instant appeal and Second Appeal No. 159 of 1993 (arising out of Title Suit No. 104 of 1984) which already stands dismissed as mentioned at the outset.