JUDGMENT
M.M. Kumar, J.
1. This is the plaintiffs appeal challenging concurrent findings of fact recorded by both the Courts below holding that the plaintiff-appellant has miserably failed to prove that he was ever adopted by Smt. Keshar Devi defendant-respondent No. 1. It is the estate of defendant-respondent No. 1, which is being claimed by the plaintiff-appellant on the basis of adoption. There is no document brought on record to prove the adoption nor there is any collateral evidence proving the fact of adoption of the plaintiff-appellant by Smt. Keshar Devi defendant-respondent No. 1. When she herself appeared in the witness box as DW1, she categorically denied having adopted the plaintiff-appellant. Reliance has also been placed on an earlier suit filed by Diwan Singh, father of the plaintiff-appellant titled as Diwan Singh v. Smt. Santosh, where it has been asserted that he alongwith Sher Singh were the owners in possession of the suit land. Had Diwan Singh given Suraj Mal in adoption to Smt. Keshar Devi, then she would not have asserted her right as well as right of her brother upon the suit land.
2. Brief facts, which are necessary for disposal of the instant appeal, can be understood with the help of a pedigree table and the same is as unden-
Datta Ram
|
Udmi
——————————————————-
| | | |
Diwan Singh Sher Singh Ranjit Surjit Singh
| | |
------------------
| | | |
Surajmal (plaintiff) | | Smt. Kesar Devi
Krishan Kumar Widow (defendant No. 1)
|
-----------------------------------------
| | | |
Smt. Santosh Partap Singh Jai Singh Sajjan Kumar
(daughter) (-----sons---)
Defendant No. 2.
3. It is evident from the pedigree table that the predecessor-in-interest of the plaintiff-appellant was one Datta Ram, who was owner in possession of 580 kanals 18 marlas of land. After his death, his son Udmi Ram inherited the same, who died in the year 1970. The land then devolved upon his four sons, namely, Diwan Singh, Sher Singh, Ranjit Singh and Surjit in equal shares. Surjit Singh died in the year 1975 as issueless and his share was mutated in favour of defendant-respondent No. 1, his widow, namely Keshar Devi. The plaintiff-appellant is son of Diwan Singh i.e., the brother of deceased Surjit Singh, who was the husband of defendant-respondent No. 1. It was asserted by the plaintiff-appellant that he was adopted by the defendant-respondent No. 1 on 2.6.1978 and that even his marriage was also performed by her. According to the assertion of the plaintiff-appellant, the suit land was given to him on 28.10.1990 by the defendant-respondent No. 1, who had relinquished all her rights with regard to the suit property. It has further been alleged that defendant-respondent No. 2 Smt. Santosh Kumari, who is daughter of another brother Ranjit had obtained a decree on 27.5.1995 fraudulently in respect of the suit land.
4. Both the Courts below have found concurrently that there is no evidence of adoption. The view of the learned Lower Appellate Court with regard to the nature of evidence led by the plaintiff-appellant to prove adoption, reads as under:-
No cogent evidence has been led to prove the factum of adoption of plaintiff by defendant Kesar Devi. The oral evidence led by the plaintiff, which is otherwise in a perfunctory manner, cannot be believed without their being any documentary proof. No adoption deed has been placed on the file. None of the witnesses examined by the plaintiff has either given the date, month and year of adoption or the date, month and year when the plaintiff acquired the land by way of family settlement. PW1 Sarbati is the mother of the plaintiff and PW2 Krishana is the wife of the plaintiff. Their evidence cannot be believed being interested persons. The evidence of PW3 Ajmer Singh, who is also distantly related to the plaintiff, is also cannot be believed. He has not stated even a single word about the acquiring of the land of Kesar Devi by the plaintiff. He, in his examination-in-chief, has stated that he does not remember the name of the son of Diwan Singh, who was given in adoption. Even, in his cross-examination, he stated that he has not met Kesar for the last about 15 years. On the other hand, Kesar Devi while appearing in the witness box as DW1 has specifically stated that she does not know Surajmal nor she ever taken him in adoption. She also stated that she has transferred her land in favour of Santosh with her free will. Her version is corroborated by DW2 Santosh and DW5 Sheo Lal, who is an independent witness and Ex-Sarpanch of the village. There is nothing to disbelieve the evidence led by the defendants. There is one more aspect of the case which falsifies the stand of the plaintiff.
5. Both the Courts below have also placed reliance on the judgment and decree dated 9.8.1999 Ex.D6 and Ex.D7 respectively passed in Civil Suit No. 359-C of 1995 titled as Diwan Singh v. Smt. Santosh etc. The aforementioned judgment and decree unequivocally proves that the impugned judgment and decree dated 27.5.1995 passed in favour of Smt. Santosh Kumari was challenged by Diwan Singh father of the plaintiff-appellant and the suit was dismissed. Diwan Singh had asserted, in his suit, that he and his brother Sher Singh were owners in possession of 1/4th share of land of defendant-respondent No. 1 Smt. Keshar Devi in equal shares out of the total land measuring 580 kanals 18 marlas. Had Diwan Singh given his son Surajmal plaintiff-appellant to Smt. Keshar Devi, he would not have asserted his right as well as the right of his brother upon the suit land. After the dismissal of the suit, even the appeal of Diwan Singh was dismissed vide judgment and decree dated 18.2.2000 Ex.D4 and Ex.D5 respectively. On the basis of the aforementioned evidence, the suit of the plaintiff-appellant has been dismissed.
6. I have heard the learned counsel for the plaintiff-appellant, who has argued that even oral evidence can be considered sufficient to prove the factum of adoption and in that regard reference has been made to the statements made by PW1 to PW3. The statements of PW1 to PW3 have been illegally discarded by the Courts below being the statements of close relations. Leaned counsel then argued that the judgment and decree dated 9.8.1999 passed by the Civil Judge (Junior Division), Hisar dismissing the suit of Diwan Singh, father of the plaintiff-appellant, was not relevant and binding because the plaintiff-appellant was not a party.
7. After hearing the learned counsel and having pondered over th? submissions made by him, I am of the considered view that no interference of this Court is necessary in the concurrent findings of fact recorded by both the Courts below. Both the Courts below have found that the oral evidence adduced by the plaintiff-appellant has been rebutted by the defendant-respondents. There are cases where the findings of fact could be based on the oral statements made by a party but in those cases, either the oral evidence goes unrebutted or it is so probable that a man would not be able to discard the same. In the present case, the Court of fact like the trial Court and the lower appellant Court were required to form an opinion with regard to the relationship of the plaintiff-appellant with defendant-respondent No. 1. Such relationship could have been proved by oral evidence of those, who had special means of acquiring knowledge of such a relationship. For example, the plaintiff-appellant might have proved that the close relations had seen him calling Smt. Keshar Devi defendant-respondent No. 1 as his mother or he could have produced any documentary evidence in the form of bank account or any other transaction to prove that defendant-respondent No. 1 had always regarded him as her son. Such evidence might have been relevant under Section 50 of the Indian Evidence Act, 1872. However, nothing of that nature has been brought on record to prove the relationship of the plaintiff-appellant with defendant-respondent No. 1. On the contrary, defendant-respondent No. 1 when appeared as her own witness has stated in unequivocal terms that she never adopted the plaintiff-appellant as her son and has voluntarily given her property to Smt. Santosh Kumari. Therefore, I do not find any question of law warranting admission of appeal under Section 100 of the Code.
8. The arguments of the learned counsel for the plaintiff-appellant that the earlier decree dated 9.8.1999 Ex.D6 and Ex.D7 was not relevant as the plaintiff-appellant was not a party in those proceedings, appear to be attracted at first blush but on a close scrutiny lacks any substance. It is now well settled that a judgment and decree with regard to the same land, although not between the same parties, would be relevant as precedent and cannot be excluded from consideration. The aforementioned view has been taken by the Supreme Court in the case of Sahu Madho Dass and Ors v. Mukand Ram and Anr. A.I.R. 1955 S.C. 481. In that case, Supreme Court accepted the interpretation given to a will by the Privy Council although the proceedings before the Privy Council were not between the same parties. These views of their Lordships are discernible from para 24 of the report, which reads as under:-
(24) Now to go back to the year 1864 when Mst. Pato made the so-called will of 1864. This document was construed by the Privy Council in – Mst. Hardei v. Bhagwan Singh A.I.R. 1919 P.C. 27 (A) and their Lordships said- .
In the events which happened this document did not become operative, but it is relevant as showing that at the date of its execution Pato was claiming an absolute right to dispose of the whole of the scheduled property.
Mukand Ram was not a party to that litigation and the decision does not bind him but it operates as a judicial precedent about the construction of that document, a precedent with which we respectfully agreed. She says there was the property “belongs exclusively to me without the participation of anyone else”. That assertion, coupled with the fact that she purported to dispose of the property after her death (which she could not have done as a limited owner) and taken in conjunction with the subsequent conduct of the daughters and that of the grandsons, imports admissions by them that was her claim and leaves us in little doubt about what she meant. We therefore reach the same conclusion as the judicial committee and hold that Mst. Pato claimed an absolute estate in 1864.
9. The aforementioned observation of the Supreme Court would show that if the same document is required to be considered by the Court in a subsequent proceeding on which already judicial opinion is available then the judicial opinion shall be relevant fact on the principle of judicial precedent. In the case of Virupakshayya Shankarayya v. Neela Kanta Shivacharya Pattadadevaru
a decision of the Privy Council was considered relevant with regard to nomination and installation as Mathadhipati. The Supreme Court reversed the judgment of the Kamataka High Court which had taken a contrary view. Their Lordships of the Supreme Court observed as under:-
9. In the aforesaid premises, the Privy Council, even though the same did not bind the plaintiff on the principle of res judicata, was definitely a relevant circumstance to be taken not of, because of what has been stated in Section 42 of the Evidence Act. What we, however, find is that the High Court had only referred to the earlier decision without examining the question as to whether law permitted a contrary view to be taken on the self same issue. According to us, the issue having been finally determined at the highest level, the same could not have been re-examined, which exercise, to start with, was undertaken even by a Civil Judge.
10. The question has also been considered by the Supreme Court in the case of Tirumala Tinipati Devasthanams v. KM. Krishnaiah
. A similar argument which has been taken before me was raised before the Supreme Court has been rejected by placing reliance on Section 13 of the Indian Evidence Act, 1872 and a number of judgments of the Supreme Court and Privy Council. The observations of the Supreme Court in this regard read as under:-
9. In our view, this contention is clearly contrary to the rulings of this Court as well as those of the Privy Council. In Srinivas Krishna Rao Kongo v. Narayan Devji Kongo
, speaking on behalf of a Bench of three learned Judges of this Court. Venkatarama Ayyar, J. held that a judgment and inter parties is admissible in evidence under Section 13 of the Evidence Act as evidence of an assertion of a right to property in dispute. A contention that judgment other than those falling under Sections 40 to 44 of the Evidence Act were not admissible in evidence was expressly rejected. Again B.K.Mukherja, J. (as he then was) speaking on behalf of a Bench of four learned Judges in Sital Das v. Sant Ram
held that a previous judgment not interpartes, was admissible in evidence under Section 13 of the Evidence Act as a ‘transaction’ in which a right to property was ‘asserted’ and ‘recognised’. In fact, much earlier, Lord Lindley held in the Privy Council in Dinamoni v. Brajmohini (1992) I.L.R. 29 Cal. 190 (198) (P.C.) that a previous judgment, not inter parties was admissible in evidence under Section 13 to show who the parties were, what the lands in dispute were and who was declared entitled to retain them. The criticism of the judgment in Dinamoni v. Brajmohini and Ram Ranjan Chakerbati v. Ram Narain Singh (1895) I.L.R. 22 Cal. 533 (P.C.) by Sir John Woodroffe in his commentary on the Evidence Act (1931), P.181 was not accepted by Lord Blanesburgh in Collector of Gorakhpur v. Ram Sunder
A.I.R. 1934 P.C. 157:61 I.A. 286.
11. When the principles laid down by the Supreme Court in the aforementioned judgments are applied to the facts of the present case then it becomes evident that the earlier judgment and decree dated 9.8.1999 Ex.D6 and Ex.D7 in a litigation between Di-wan Singh, the father of the plaintiff-appellant and Smt.Santosh Kumari constitute res judicata because the parties in the present litigation were not present before the Court in those proceedings. However, it would be releva.it as a legal precedent and under Section 13 of Evidence Act in accordance with the view taken by the Supreme Court because it pertains to the same property. Such a judgment and decree cannot be considered irrelevant. The judgment and decree dated 9.8.1999 was upheld by the learned Addl. District Judge in appeal vide judgment and decree dated 18.2.2000 Exs.D4 and D5 respectively. For the Civil Judge, it would constitute a judicial precedent and has to be followed by him. Therefore, the argument raised by the learned counsel is without merit and the same is rejected.
For the reasons recorded above, this appeal fails and the same is dismissed.