GIAN CHAND Vs. MANGI RAM

JUDGEMENT

(1.) THESE are cross appeals from the same judgment and decree of the courts below in a suit instituted by Mangi Ram, appellant in CSA No. 10/94 (hereinafter referred to as the plaintiff), for declaration that the defendant, Gian Chand, appellant in CSA No. 9/94, is not his adopted son and the adoption deed dated 22nd January, 1983 was null and void etc., and for perpetual injunction against him from interfering with plaintiffs possession over the suit house and the lands in question. The trial court by judgment and decree dated 30th December, 1992 decreed the suit. The court held that the adoption was null and void. The Ist appellate court upheld the finding but on the ground that the plaintiff had not sought consequential relief of possession as required under section 42 of the Jammu and Kashmir Specific Relief Act, held the suit to be not maintainable and, accordingly, set aside the judgment and decree of the trial court and dismissed the suit vide judgment and decree dated 31st March, 1994. Both the plaintiff and the defendant preferred appeals, being SA No. 10/94 and SA No. 9/94 respectively. Whereas defendants appeal is directed against the finding on the point of adoption recorded by the two courts below, the plaintiff is aggrieved by dismissal of the suit.

(2.) THE appeals were disposed of earlier by a learned Judge of this Court on 24th August, 2000. Whereas SA No. 9/94 by the defendant was dismissed as being concluded by concurrent findings of fact, SA No. 10/94 by the plaintiff was allowed. The learned Judge held that the defendant was in possession of the suit property as adoption son, and not in any independent capacity; therefore, his adoption not being illegal, he cannot be deemed to be in possession. In the circumstances, the plaintiff was not required to seek the relief of possession and the suit as framed was maintainable.

(3.) AGAINST the said judgment of this Court, the defendant moved the Supreme Court in SLP (Civil) No. 17662/2001, giving rise to Civil Appeal No. 4341/2002. The Supreme Court vide order dated 26th July, 2002 took the view that a second appeal under section 100 of the Code of Civil Procedure can be heard only on substantial question of law but the appeals had been disposed of without framing any question of law, it set -aside the judgment and remitted the appeals back to this Court for fresh decision on merits. That is how the appeals came up for hearing.