JUDGMENT
T. Vaiphei, J.
1. This Revision Petition is directed against the order dated 11.7.2006 passed by the learned Addl. Deputy Commissioner in TCA No. 3 (T) 2005, dismissing the appeal filed by the petitioner and affirming the judgment and order dated 23.6.2003 passed by the trial Court in Title Suit No. 2(T) 1993 refusing to decree the suit filed by him for declaration and mandatory injunction and cancellation of the sale deed executed between the respondent and the defendants.
2. The material facts of the case leading to the filing of this Revision petition are that one landed property measuring about 0.210 acres covered by Plot No. 75 and Patta No. 62 situated at Lachumiere, Shillong, was granted by the Deputy Commissioner to late Dr. P.D. Hazarika. The said Dr. P.D. Hazarika, after the grant, constructed a residential building which was duly registered as holding No. 174 and lived there with his wife Smti Punnya Prabha Hazarikanee Bhorali. The petitioner, who is the son of the brother of Smti Punnya Prabha Hazarikanee Bhorali, claimed that he is the adopted son of the couple since 1954. According to the petitioner, the said Dr. P.D. Hazarika during his life time had made a Will bequeathing the suit property to his wife, Smti. Punnya Prabha Hazarikanee Bhorali. It is the further case of the petitioner that late Dr. Hazarika and his wife gifted the suit property to him but before any appropriate deed could be drawn up, both of them died within two years of each other i.e., on 7.9.71 and 20.11.73 respectively. The petitioner claimed that he has been staying in the suit property with his family since 1969 till date. The petitioner further pleaded that on 23.9.92, he was surprised to receive a bill for electric consumption from the Meghalaya Electricity Board showing the name of the respondent as the consumer in respect of the suit property. The petitioner immediately made an enquiry and came to learn that the suit property had been sold to the respondent by the defendants No. 2,3 4 and 5 whereupon he instituted the suit challenging the claim of the defendant No. 2, 3, 4 and 5 over the suit property and also questioning the validity of the sale deed executed by the said defendants in favour of the respondent.
3. The defendants contested the suit by filing their written statement. On the pleadings of the parties, the trial Court framed the following issues:
1. Whether the plaintiff has any cause of action for the instant suit?
2. Whether the suit is maintainable in its present form?
3. Whether the suit is barred by the law of limitation an the principles of waiver, acquiescence and estoppel?
4. Whether the suit is bad for non-joinder and mis-joinder of the necessary parties?
5. Whether the suit is barred by Resjudicata?
6. Whether the suit property is Govt. Plot No. 75 and Patta No. 62 was settled by the then Govt. of Assam in favour of Dr. P.D. Hazarika?
7. Whether the plaintiff is the adopted son of late Dr. P.D. Hazarika and Smti. Punnya Prabha Hazarika?
8. Whether the plaintiff has locus standi to file the instant suit?
9. Whether the suit property was duly and legally transferred to the Defendants No. 2-5 jointly and severally, superseding the right, title and interest of Smti Punnya Prabha Hazarikanee Bhorali? Whether the transfer to the defendant No. 1 is liable to be annulled and cancelled?
10. Whether the defendant No. 2 to 5 has right, title and interest in the suit property?
11. Whether the plaintiff is liable to be evicted from the suit property?
12. Whether the Defendant No. 1 bona fide requires the suit property for her use and occupation ?
13. What are therelief/reliefs the parties are entitled to?
In the course of the trial, the petitioner examined four witnesses including himself as PW 1 to substantiate his claim, whereas, the respondent examined five witnesses to defend his case. At this stage, it may be noted that the defendant Nos. 2, 3, 4 and 5 apparently did not participate in the proceeding of the suit after they filed their written statement which resulted in ex-parte proceedings against them. At the conclusion of the trial, the suit was dismissed by the trial Court by the judgment and order dated 26.3.2006. Aggrieved by this, the petitioner preferred an appeal being TCA No. 3 (T) 2003 before the learned Addl. Deputy Commissioner, Shillong, from the said judgment and order of the trial court. By the impugned judgment and order, the appellate court also dismissed the appeal. It is this judgment and order which is under challenge in this Revision Petition.
4. It is submitted by Mr. K. Khan, the learned Counsel for the petitioner that the courts below failed to appreciate that the petitioner is not a stranger to late Dr. P.D. Hazarika and his wife but is the son of the brother of the wife of the said late Dr. P.D. Hazarika, who died in 1952 and inasmuch as his adoption took place in 1954, no formal give and take could be affected nor could his aunty i.e., the wife of late Dr. P.D. Hazarika, take up the responsibility of executing an adoption deed due to pressing family condition. Mr. K. Khan, the learned Counsel, further submits that the courts below also have exceeded their jurisdictions in judging the validity of the petitioner’s adoption against the provisions of Hindu Adoption and Maintenance Act, 1956, when his adoption took place earlier in 1954, which resulted in grave miscarriage of justice. It is also the contention of the petitioner that the courts below completely overlooked the glaring fact that the claim of the defendants Nos. 2, 3, 4 and 5 in the suit in respect of their title to the suit property is based on the succession certificate dated 20.7.1979 passed in S/C No. 85 (T) 1974, which was issued merely for satisfying debts and securities of the deceased (Smt. P.D. Hazarikanee Bhorali) when the trial court itself had observed that such right and title to the suit property could not be decided on the basis of succession certificate; this decision of the courts below is contrary to such observations and upholding the claim of the defendants on the basis thereof is illegal. It is further contended by the learned Counsel for the petitioner that when PW No. 4 (official witness) categorically proved that prior to mutation of the suit property on 6.11.1969 in the name of Smti. P.D. Hazarikanee Bhorali, the suit property was recorded in the joint names of the late Dr. P.D. Hazarika and Smti. P.D. Hazarikanee Bhorali thereby demonstrating that the suit property is a self-acquired property, both the courts below have acted with material irregularity in holding that the defendants Nos. 2, 3, 4 and 5 are entitled to inherit the suit property in terms of the provisions of Section 15 (2) (b) of the Hindu Succession Act, 1956.
5. The learned Counsel further contends that when the succession certificate obtained by the said defendants could not confer title to the suit property upon them, the subsequent transfer made by them in favour of the respondent is liable to be declared as void. According to the learned Counsel, a deed of adoption merely records the fact that an adoption had taken place and nothing more and failure of the petitioner to show such deed of adoption in the suit does not render the oral evidence adduced on his behalf inadmissible; strong reliance is placed by him on the decision of the Apex Court in Jahuri Sah v. Dwarika Prasad Jhunjhunwala, 1966, Supp. ACR 280 in this context. It is also pointed out by the learned Counsel that no notice was issued to the petitioner when mutation was effected in the names of the defendants Nos. 2, 3, 4 and 5 nor any notice issued to them when the suit property was sold to the respondent; these omissions rendered such transactions illegal. Moreover, submits the learned Counsel, such mutation does not confer any title or right to the suit property upon the respondent. He relies on the decision of the Apex Court in Balwant Singh v. Daulat Singh , in support of his contention. Lastly, the learned Counsel for the petitioner contends that when the said defendants did not contest the suit whereupon the suit was proceeded ex-parte, they are deemed to have waived their claim of title to the suit property; the courts below ought to have ignored such claim and proceeded to decree the suit in favour of the petitioner. In any view of the matter, contends the learned Counsel for the petitioner, the impugned judgments of the courts below suffer from jurisdictional errors and illegalities, and, therefore, cannot be sustained in law.
6. Per Contra, Mr. V.G.K. Kynta, the learned Counsel for the respondent, supports the impugned judgment and submits that there is no improper exercise of jurisdiction by the courts below calling for the interference of this Court. He refers to the following decisions: (i) National Insurance Co. Ltd. v. Meghalaya Plywoods 2002 (2) GLT 78; (ii) Ibrahim Ali v. Hazi Abdul Latif (1989) 1 GLR 70; (iii) P.S. Kona Anal v. State of Manipur and Ors. (1989) 2 GLR 142; (iv) Sudhansu Ranjan Paul v. Madhav Chandra Paul (1990) 2 GLR 183 and (v) Bhojraj Kunwarji Oil Mill and Ginning Factory v. Y.S. Parihar , to remind this Court of the extremely limited jurisdiction it has for interference in a revision. On the question of adoption, he contends that though the law does not insist upon execution of a deed of adoption in the instant case, the will being suspicious in nature and highly improbable, in the absence of contemporaneous evidence to dispel such suspicious nature, the same cannot be held to be proved. Reminding this Court of the legal position that the burden of proof is heavy on the part of the propounder to dispel such suspicion since adoption changes the course of natural succession. The learned Counsel strenuously urges this Court to uphold the impugned judgment when the petitioner has miserably failed to discharge such burden. According to the learned Counsel, once the facts found on record cannot establish the factum of adoption claimed by the petitioner, both the courts below are correct in holding that the defendants, who are admittedly the legal heirs of the late Dr. P.D. Hazarika, are entitled to inherit the suit property left behind by him to transfer the same to the respondent. On the question of the failure of the said defendants to contest the suit, the learned Counsel submits that, that cannot materially change the outcome of the suit when the petitioner cannot independently prove his case and that the petitioner is expected to, and must, succeed in the suit on the strength of his case and not on the weakness of the case of the defendants. In support of his various contentions, the learned Counsel for the respondent cites the following cases: (i) Padmalav v. Fakira Debya AIR 1931 P.C. 81; (ii) Arjun Banchhor v. Buchi Banchhor AIR 1955 Order. 32; (iii) Raghunath Behera v. Baluram Behera AIR 1996 Order 38 ; (iv) Rahasa Pandiani v. Gokulananda Panda ; (v) Bhagat Ram v. Teja Singh and (vi) Danishtha Kalita v. Ramakanta Kalita 2003 (1) GLT 149.
7. After giving my thoughtful consideration to the rival submissions made on behalf of the rival parties and after perusing the impugned judgment and order, I am of the view that this Revision petition has no merit and is liable to be dismissed. The appellate court has found that the petitioner did not produce any document or witness to prove his alleged adoption and that even after the alleged adoption, the petitioner did not adopt the family title of late Dr. Hazarika and he remained as Bhorali as before and kept his separate identity even after his assimilation in the family of late Dr. Hazarika. The appellate court observed that had the petitioner produced Shri Dinanath Bhorali, who is said to be present when the discussion about his adoption by the Hazarika couple took place at Jorhat in the witness box, then the matter would have become clear and that even in his evidence he admitted that he filed the suit not as the adopted son of the couple but as the heir of Mrs. Hazarika. It was on the basis of the aforesaid findings that the appellate Court concurred with the findings of the trial court and held that the petitioner failed to prove the factum of his adoption by the Hazarika couple as pleaded by him.
8. Coming now to the question as to whether the defendants No. 2 to 5 have right to the suit property, the concurrent findings of both the trial court and the appellate court which are not disputed here, is that late Dr. Hazarika has two sisters namely Smti Bhubaneswari Das and Smti Bindeswari Hazarika and that the said Smti Bhubaneswari Das’s has two sons, namely Shri Prafulla Kamal Das (defendant No. 2) and Shri Atul Chandra Das (defendant No. 3) whereas the said Smti Bindeswari Hazarika has two sons namely, Shri Nalani Chandra Hazarika (defendant No. 4) and Shri Prafulla Chandra Hazarika (defendant No. 5). According to the appellate court, on these admitted positions of the parties, by the application of the provisions of Section 15 and 16 of the Hindu Succession Act, 1956, the defendants No. 2 to 5 are entitled to inherit the suit property. The appellate court thus took the view that in terms of Sections 15(2)(d) and Section 16(3) of the Hindu Succession Act, 1956, the suit property, after the death of Mrs. Punnya Prabha Hazarikanee Bhorali, developed on the defendants Nos. 2, 3 4 and 5. Therefore, according to the appellate court, the said defendants did have transferable right to and interest in the suit property. Consequently, the appellate court held that the transfer of the suit property by the said defendants to the respondent is in order and is unassailable. In coming to this conclusion, the appellate court noted the admission made by the petitioner in his deposition that Smti. Punnya Prabha Hazarikanee Bhorali had inherited the property from late Dr. P.D. Hazarika.
9. The concurrent findings of both the Courts below as noted above do not suffer from any perversity to warrant the interference of this Court. The appellate court had meticulously gone through the evidence on record and came to the correct finding that no adoption took place as alleged by the petitioner and that the suit property developed upon the defendants Nos. 2 to 5, from whom the respondent purchased the same by the operation of Sections 15 and 16 of the Hindu Succession Act, 1956. It is now a settled law that the power of revision under Rule 36A of the Rules for Administration of Justice and Police in Khasi and Jaintia Hills, 1937, has to be exercised in conformity with the revisional powers provided under Section 115 of the Code of Civil Procedure and that the High Court in revision cannot enter into appreciation of facts like the appellate court and further that the possibility of a different view on facts is not sufficient ground for interference. That apart, the petitioner, on the facts found, has miserably failed to prove the factum of adoption. In the instant case, the petitioner seeks to exclude the natural line of succession to the suit property by alleging adoption. The evidence relied upon is that of PWs Nos. 1, 2, 3 and 4 which, falls short of the required proof in law. In this connection, I am reminded of the observations of the Apex Court in the case of Rahasa Pandiani v. Gokulananda Panda (1987)2 SCC 338, which reads thus:
An adoption would divert the normal and natural course of succession. Therefore the court has to be extremely alert and vigilant to guard against being ensnared by schemers who indulge in unscrupulous practices out of their lust for property. If there are any suspicious circumstances, just as the propounder of the Will is obliged to dispel the cloud of suspicion, the burden is on one who claims to have been adopted to dispel the same beyond reasonable doubt. In the case of an adoption which is claimed on the basis of oral evidence and is not supported by a registered document or any other evidence of a clinching nature, if there exist suspicious circumstances, the same must be explained to the satisfaction of the con- science of the court by the party contending that there was such an adoption.
10. The Apex Court also observed in Kishori Lal v. Chaltibai AIR 1959 SC 504:
As an adoption results in changing the course of succession, depriving wives and daughters of their rights and transferring properties to comparative strangers or more remote relations it is necessary that the evidence to support it should be such that it is free from all suspicion of fraud and so consistent and probable as to leave no occasion for doubting its truth. Failure to produce accounts, in circumstances such as have been proved in the present case, would be a very suspicious circumstance. The importance of accounts was emphasized by the Privy Council in Sootrugun v. Sabitra; in Diwarkar Rao v. Chandanlal Rao; in Kishori Achariya v. Fakira Debya.
11. It is true that the factum of adoption was sought to be proved by the petitioner by oral evidence. Undoubtedly, the alleged adoption took place prior to the coming into force of the Hindu Succession Act, 1956, which requires execution of a deed of adoption and as such, the factum of adoption taking place prior to this Act can always be proved by oral evidence as well. In other words, even in the absence of a deed of adoption, the factum of adoption can be proved by the petitioner provided sufficient evidence is produced by him in that behalf. However, when the evidence adduced by him does not inspire confidence and are also contradictory in nature (who pleaded title to the suit property on the basis of adoption as well as on the basis of inheritance), the claim of adoption made by him being highly suspicious, he is expected to support the case set up by him by contemporaneous evidence to dispel the suspicious nature of the adoption. The law is also well settled that where adoptions are most improbable in themselves, and are not supported by contemporaneous evidence which ought to have been forthcoming and the case of the party in setting up the adoption is highly suspicious, it cannot be concluded that the adoption is proved. As noted by the appellate court, the petitioner did not adduce the evidence of Shri Dinanath Bhorali who is said to be present when the discussion about his adoption by the Hazarika couple took place at Jorhat. In other words, the petitioner is unable to produce the evidence of a witness who actually had knowledge of the adoption of the petitioner by the Hazarika couple. When such evidence or contemporaneous evidence to establish the factum of adoption are not forthcoming, it is difficult to accept the case of adoption set up by the petitioner. When the petitioner has failed to prove the factum of adoption, he has no locus standi to question the transfer of the suit property by the said defendants, who are admittedly in the natural line of succession, in favour of the respondent.
12. As for the contention that the defendants Nos. 2 & 5 have failed to contest the suit, the courts below ought not to have dismissed the suit only on the basis of the case of the respondent, it must be noted that it is the petitioner/plaintiff who must succeed in his suit on the strength of his case and not on the weakness of the defendants. Under Order IX, Rule 6, CPC, if the defendant does not appear and it is proved that the summons was duly served upon him, the court may pass an order that the suit may be proceeded ex-parte and proceed the suit accordingly. If the plaintiff makes out a prima facie case, the court may pass a decree for the plaintiff. However, if the plaintiff fails to make out a prima facie case, the Court may dismiss the plaintiff’s suit. The courts in dealing with an ex-parte case should take good care to see that the plaintiff’s case is at least prima-facie proved. The mere absence of the defendants does not on itself justify the presumption that the plaintiff case is true. As observed earlier when the petitioner cannot show any contemporaneous evidence to prove the factum of adoption, it cannot be said that the petitioner has made out a prima facie case. More so, when the oral evidence adduced on his behalf falls far short of the standard of proof required in this behalf. I fully concur with the findings of the appellate court that once the defendants Nos. 2 to 5 are held to be the legal heirs of the deceased Dr. P.D. Hazarika, the suit property left behind by him must devolve upon them by the operation of Section 15(1)(b) which provides that any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of the pre-deceased son of daughter), not upon the other heirs referred to in Sub-section (1) in the order specified therein, but upon the heirs of the husband. In the instant case, the suit property was admittedly inherited by Smti Punnya Prabha Hazarikanee Bhorali from her husband late Dr. P.D. Hazarika. These concurrent finding of both the Courts below are not or cannot be disputed by the petitioner. In that view of the matter, there is no difficulty in holding that the said defendants did have a transferable right to the suit property and that the transfer of the suit property made by them in favour of the respondent cannot be questioned or challenged by the petitioner, who, in any case, is found to have no locus standi.
13. For what as been stated above, 1 do not find any merit in this Revision petition and the same is dismissed at the admission stage itself. However, on the facts and circumstances of the case, I pass no order as to costs.