BHURE KHAN Vs. YASIN KHAN

JUDGEMENT

(1.) This second appeal under Section 100 CPC has been filed against the judgment and decree dated 14.1.1981 passed by District Judge, Sikar whereby the appellate court has affirmed the judgment and decree of the trial court dated 11.4.1977 passed by Munsiff, Sikar by which suit of plaintiff appellant for possession, injunction and redemption of mortgage has been dismissed. The short facts of the case leading to this appeal are that plaintiff appellant Bhure Khan filed a suit inter alia pleading that he is adopted son of Dule Khan and in possession of the property belonging to Dule Khan and in Sikar District and Sikar City for adoption and marriage ceremonies like Hindus are being performed by custom. The further contention in the suit was that disputed property is in permissive possession of the defendant and inspite of reminders, he has not vacated the suit property hence the suit has been lodged. Per contra, the contention of the defendant was that he is in possession of the property since 1984 as the property has been mortgaged to him for a sum of Rs. 1886/-. Present appellant is not the adopted son of Dule Khan and there is no custom of adoption in Muslims at Sikar. Plaintiff is the son of Kamruddin Khan. The court below has dismissed the suit mainly on the ground that present appellant is not the adopted son of Dule Khan and there is no such customs in Muslims at Sikar District to have adoption like Hindus. The appellate court has also affirmed the findings of court below as regards to adoption and confirmed the view that appellant is not the adopted son of Dule Khan but appellate court has held that in Muslims, in District Sikar there are customs for adoption like Hindus and now it is the admitted case between the parties that suit property is in possession of the respondents by virtue of mortgage for a sum of Rs. 1886/-. The contention of the present appellant is that adoption is about 50 years old and it cannot be possible for a party to adduce strict evidence for the same. The present appellant is treated as sort of Dule Khan in the society and on the basis of probabilities, the court must hold that he is adopted son of Dule Khan. All the witnesses of the plaintiff are of same community have stated that present appellant Bhure Khan has been treated in the society as the adopted son of Dule Khan and the court below has not considered this aspect of the matter. Specific evidence as regards to adoption has been produced. PW. 3 Samshed Hussain and PW. 8 Ibrahim are the eye witnesses of the adoption. PW. 8 Ibrahim is Dule Khan's daughter's son inspite of this, he has stated against his right. The court below has not considered the documents Ex. 1 and Ex. 2 Ex. 2 document is of the year 1944, genuineness of which cannot be disputed. The property of Dule Khan situated in Fatehpur has been transferred in his name. He is in possession of other property of Dule Khan. His sisters, daughter of Dule Khan has not objected as regards to this status and further the contention of the appellant is that before the appellate court he has moved an application under Order 41 Rule 27 CPC which has been wrongly rejected by the court below. He has placed three documents vide the application. One is his service book, patta of property at Fatehpur in his favour and Khasra Abadi of Sikar which are relevant and significant documents to prove his status but court below has not admitted the documents and findings are perverse. Further his contention is that court also he has moved three applications under Order 41 Rule 27 CPC. in the earlier application, certified copies of the documents have been produced, thereafter he could get the original documents from the concerned court and original documents have been produced by way of another application. Alongwith the application dated 9.9.1999, seven letters have been produced which are written by various persons, to the appellant treating him son of Dule Khan. Original writing of wife of Dule Khan dated 13.11.1946 has also been produced which shows the fact of adoption and agreement dated 11.10.1051 by his natural father which states that Bure Khan had been given in adoption to Dule Khan and by another application dated 7.9.1999 under Order 41 Rule 27 CPC, he has produced his Nikhanama in which his father's name has been entered as Dule Khan be taken on record.

(2.) Heard the learned counsel for the parties and perused the judgments and decree under appeals as well as the original record of the case.

(3.) The present appeal has been admitted on 17.11.1982 on the following substantial questions of law:-