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PETITIONER:

RAM DAS ALIAS RAM SURAJ

Vs.

RESPONDENT:

SMT. GADIABAI & ORS.

DATE OF JUDGMENT: 20/11/1996

BENCH:

N.P. SINGH, S.B. MAJMUDAR

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

S.B. Majmudar, J.

This appeal by special leave to appeal granted under

Article 136 of the Constitution of India brings in challenge

the judgment and order rendered by the High Court of Bombay

at Nagpur in Second Appeal No. 310 of 1960. By the impugned

judgment and order the learned Single Judge of the High

Court dismissed the appellant-plaintiff's Second Appeal and

confirmed the decree of dismissal of his suit for partition

as rendered by the Trial Court and as confirmed by the First

Appellate Court. We shall refer to the appellant as

plaintiff and respondents 1 to 7, heirs of original

defendant, as defendants for the sake of convenience in the

latter part of this judgment. The plaintiff's suit against

the original defendant Prayag who died pending the

litigation was based on the ground that defendant was his

uncle. That his father Ram Prasad and the defendant Prayag

were sons of one Balbhaddar Teli. That plaintiff's father

and the defendant had joint interest in the suit properties

which were inherited by their father from his ancestors.

That as there was no partition of these properties during

the lifetime of his father on the one hand and defendant on

the other he had acquired one half undivided share in these

properties along with the defendant who had the other half

share. He, therefore, filed a Civil Suit No. 289-A of 1960

in the Court of the Civil Judge (Junior Division), Gondia

against the defendant for partition and separation of his

half share in the properties described in the Schedule

attached to the plant and for mesne profits. According to

the plaintiff his grandfather Balbhaddar died in or about

the year 1911 leaving behind him his two sons Prayag,

original defendant, and Ram Prasad, plaintiff's father.

Plaintiff's father Ram Prasad died in or about the year 1938

leaving plaintiff Ram Das as his son, daughter Tulsabai and

Kusumabai as his widow. Plaintiff was six months' old when

his father Ram Prasad died. According to the plaintiff as he

was minor the properties after death of his father used to

be managed by the defendant as `Karta' of the family.

Property was thus in joint possession of the parties. That

plaintiff was staying with his mother at Nagpur and

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defendant used to give his share in the crops every year.

After attaining majority he sought for partition and

separate possession of his one half share which the

defendant refused and hence the aforesaid suit.

The defence of the original defendant was there-fold.

Firstly it was contended that plaintiff's mother after death

of plaintiff's father Ram Prasad re-married one Ram Charan

and before her re-marriage with Ram Charan she gave the

plaintiff in adoption to Ram Charan and consequently

plaintiff had ceased to belong to the family of defendant

and his deceased father Ram Prasad and consequently he had

no right, title or interest in the suit properties. The

second defence was that in the lifetime of plaintiff's

father Ram Prasad there was partition of properties and Ram

Prasad was given h s share in co-ownership properties and

other movables and, therefore, also plaintiff had no right,

title and interest in the suit properties which on partition

fell to the exclusive share of original defendant. The third

defence was that in any case defendant had become owner of

suit properties by adverse possession.

After recording evidence the learned Trial Judge came

to the conclusion that all the three defences put forward by

the original defendant were worth acceptance. In short the

learned Trial judge held that the plaintiff was adopted by

his step-father Ram Charan before his re-marriage with

plaintiff's mother and, therefore, plaintiff had no right,

title or interest left in the properties of his deceased

natural father. It was also held that there was partition

between plaintiff's natural father Ram Prasad and the

defendant during the former's lifetime and that the

plaintiff's father had squandered away the properties which

fell to his share and, therefore, also plaintiff had no

share in the suit properties which had fallen exclusively to

the share of the defendant on partition. It was also held

that in any case the defendant had become owner of the

properties by adverse possession.

The plaintiff carried the matter in appeal. The learned

Appellate Judge on re-appreciation of evidence came to the

conclusion that there was no partition between plaintiff's

father on the one hand and the defendant on the other during

plaintiff's father's lifetime and, therefore, the finding of

the Trial Court on this issue was reversed. The learned

Appellate Judge also held that the defendant had failed to

provide his defence that the plaintiff was given in adoption

by his mother before her re-marriage with Ram Charan.

However the learned Appellate Judge confirmed the decree of

dismissal of suit on the third ground, namely, that the

defendant had become owner of suit properties by adverse

possession. Thus out of the three grounds the plaintiff

succeeded on two grounds before the Appellate Court but lost

on the last ground. The plaintiff carried the matter in

Second Appeal being Second Appeal No. 310 of 1969. A learned

Single Judge of the High Court agreed with the finding of

fact reached by First Appellate Court that there was no

partition of properties between the plaintiff's natural

father on the one hand and the original defendant on the

other. However, it was further held that the defendant's

defence about the adverse possession was not established on

record as it was not proved that the defendant had ousted

the plaintiff so far as the suit properties were concerned.

Hence the defence of adverse possession failed. Thus out of

the three defences which had originally appealed to the

Trial Court two defences were held by the High Court to be

unsustainable on the evidence on record. However, so far as

the finding of adoption in favour of the plaintiff-appellant

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was concerned the learned Single Judge of the High Court

while allowing the heirs of the original defendant,

respondents herein, to support the decree of dismissal as

confirmed by the First Appellate Court on the finding held

against them as per the provisions of Order 41 Rule 22 Code

of Civil Procedure (`CPC' for short), took the view that

plaintiff's adoption by Ram Charan who subsequently became

his step-father was well established and the contrary

finding of the lower Appellate Court was required to be set

aside and that is how the Second Appeal was dismissed on the

sole ground that the plaintiff was adopted by Ram Charan and

had no longer remained in the family of this deceased father

and uncle, original defendant, and consequently could not

claim partition of the properties in question.

Mr. Bobde, learned senior counsel appearing for the

appellant vehemently submitted that once the two defences of

the original defendant were held to be not sustainable by

the learned Single Judge of the High Court his appeal should

have been allowed and could not have been dismissed by the

High Court by interfering with a pure finding of fact

reached by the final court of facts on the question of

adoption as such as such as exercise was not permissible

under Section 100, CPC. In this connection he invited our

attention to two decisions of this Court in the case of

Madamanchi Ramappa & Anr. v. Muthaluru Bojjappa AIR 1963 SC

1633 and in the case of Bholaram v. Ameerchand (1981) 2 SCC

414 It is now well settled that on a question of fact the

decision rendered by the lower Appellate Court is final and

the High Court in exercise of its jurisdiction under Section

100, CPC cannot interfere with the findings of fact unless

these findings are found to be vitiated in law. It is of

course true that the Second Appeal of the plaintiff was

filed in 1969 and it had to be decided according to the

provisions of Section 100, CPC as applicable prior to their

substitution by the new Section 100 as brought on the

Statute Book by Civil Procedure Code Amendment Act, 1976

meaning thereby that the appellant in Second Appeal had not

to show that the findings reached by the lower Appellate

Court involved any substantial question of law. Still

however it had to be shown that the findings reached by the

lower Appellate Court involved any errors of law as laid

down by Section 100(1)(a), (b) and (c) as were applicable

prior to 1976. The said provisions as applicable prior to

1976 read as under:

"100(1). Save where otherwise

expressly provided in the body of

this Code or by any other law for

the time being in force, an appeal

shall lie to the High Court from

every decree passed in appeal by

any court subordinate to a High

Court on Any of the following

grounds, namely:

(a) the decision being contrary to

law or to some usage having the

force of law;

(b) the decision having failed to

determine some material issue of

law or usage having the force of

law;

(c) a substantial error or defect

in the procedure provided by this

Code or by any other law for the

time being in force, which may

possibly have produced error or

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defect in the decision of the case

upon the merits."

It is also true that Section 103, CPC as then

applicable to the facts of the present case prior to 1976

permitted the High Court to determine an issue of fact under

circumstances laid dow under the then existing Section 103

which read as under:

"103. In any second appeal, the

High Court may, if the evidence on

the record fact necessary for the

disposal of the appeal which has

not been determined by the lower

appellate Court or which has been

wrongly determined by such court by

reason of any illegality, omission,

error or defect such as is referred

to in sub-section (1) of section

100."

However before the High Court could exercise its

jurisdiction under Section 100 read with Section 103, CPC

applicable at the relevant time in 1969 it had to be shown

that the lower Appellate Court had wrongly determined nay

question of fact by reason of any illegal omission, error or

defect as were referred to in Section 100, CPC. Therefore,

it had to be demonstrated that the finding of fact reached

by the First Appellate Court was affected by any of the

errors as contemplated by provisions of Section 100 sub-

section (1)(a), (b) and (c), CPC. So far as the facts of the

present case are concerned it has to be noted that the First

Appellate Court had considered all the relevant evidence on

record and reached a conclusion that the defendant had

failed to establish his defence that the plaintiff was

adopted by Ram Charan prior to re-marriage of his mother

with Ram Charan after his natural father's death. Detailed

analysis of evidence was made by the First Appellate Court

on point no. 1 for determination to the effect whether the

appellant is the adopted son of Ram Charan. In paragraphs 8

to 12 of the judgment of the First Appellate Court all the

relevant evidence was examined. The First Appellate Court

disbelieved defence witness Kaluram who was examined by

original defendant to prove his case about the adoption of

plaintiff by Ram Charan. The First Appellate Court also

noted that the remaining witness Babu Lal who is said to

have remained present at the time of adoption by Ram Charan

was not reliable. On the other hand versions in plaintiff's

evidence as P.W.3 and his witness Devidin P.W.2 were held

reliable. The First Appellate Court also considered that

non-examination of plaintiff's mother would not result in

drawing any adverse inference against the plaintiff's case.

The circumstance relied upon by the defendant to prove

plaintiff's adoption by Ram Charan, namely, that in primary

school at Nagpur name of plaintiff's father was shown as Ram

Charan, was found to be not a clinching one as it was an

admitted position that after his natural father's death

plaintiff was staying with his step-father at Nagpur as he

was a minor staying with his mother who had remarried Ram

Charan. Thus relevant evidence was reappreciated by the

First Appellate Court and a clear finding of fact was

reached that plaintiff was not adopted by Ram Charan, his

step-father, prior to latter's re-marriage with his mother

and plaintiff was merely staying with him as his step-son.

This pure finding of fact is interfered with by the learned

Single Judge in Second Appeal while exercising jurisdiction

under Section 100, CPC. In our view such a finding of fact

based on relevant evidence as arrived at by the First

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Appellate Court was final. It was neither contrary to law

nor to some usage having force of law. Nor had the First

Appellate Court failed to determine any material issue of

law or usage having the force of law. Nor was their any

substantial error or defect in the procedure provided by the

Code of Civil Procedure or by any other law for the time

being in force which might possibly have produced error or

defect in the decision on this question. In short none of

the grounds contemplated by Section 100(1)(a), (b) and (c)

existed on the record of the case to entitle learned Single

Judge of the High Court to interfere with the finding on

adoption of plaintiff while resolving the matter under

Section 100, CPC, even on the basis that simplicitor error

of law also could be interfered with in those days prior to

1976. However our attention was invited to one observation

of the learned Single Judge of the High Court in paragraph

16 of the impugned judgment wherein the learned Judge has

noted that the lower Appellate Court omitted to take into

account the circumstance that the marriage of the sister of

the plaintiff was performed not by the defendant but by Ram

Charan and that there was nothing to show that it was

defendant who spent for her marriage and that the plaintiff

was required to accept a job of Rs. 10 p.m. So far as this

latter aspect is concerned a mere look at the decision of

the First Appellate Court shows that the learned Judge as a

final court of facts while deciding the plaintiff's first

appeal had already considered the circumstance that the

appellant had admitted in his evidence that he was saving

for about 10 to 12 years in different concerns at Nagpur and

that there was his admission that he passed a receipt

regarding his salary to the Duttson Printing Press. However

the First Appellate Court had not placed reliance on this

circumstance for accepting the defendant's version that from

this circumstance alone it could be inferred that the

plaintiff must have been adopted by Ram Charan. Thus it is

not correct to say that this circumstance was omitted to be

considered by the First Appellant Court. However the first

aspect, namely, expenses on the occasion of marriage of the

plaintiff's sister were incurred by their step-father Ram

Charan, was a circumstance which was not considered by the

First Appellate Court. But in our view this circumstance is

totally irrelevant for deciding the question whether the

plaintiff was the adopted son of Ram Charan. It is well

established on record and there was no dispute about the

same that plaintiff's mother re-married Ram Charan and at

the time of her re-marriage plaintiff and his sister

Tulsabai were the children from her first husband;

plaintiff's father. On re-marriage plaintiff's mother along

wi these two children went and stayed with Ram Charan.

Thereafter if Ram Charan and spent money on their upkeep and

upbringing as step-children and even if he might have spent

on the occasion of marriage of his step-daughter Tulsabai it

would not mean that the plaintiff would, therefore, be

treated to have been adopted by his step-father. Therefore,

the aforesaid circumstance of marriage expenses being

incurred by Ram Charan so far as his step-daughter Tulsabai

was concerned, was totally an irrelevant circumstance which

had no impact on the finding of plaintiff's adoption by Ram

Charan. It, therefore, cannot be said that any material

evidence having a direct impact on the decision of the case

on merits was ignored by the First Appellate Court as the

final court of facts while arriving at the finding that the

plaintiff was not adopted by Ram Charan. Consequently it

must be held that the learned Single Judge of the High Court

was not legally justified in interfering with the clear

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finding of fact arrived at by the First Appellate Court in

favour of the plaintiff on the issue of adoption and the

First Appellate Court's finding that the plaintiff was not

adopted by Ram Charan must be treated to have been finally

established on record. Once that conclusion is reached,

result automatically follows. The other two defences raised

by the original defendant are not accepted by the High

Court. Consequently there remains no impediment in the way

of the plaintiff in getting his suit decreed. In fact once

the finding of adoption as arrived at by the High Court goes

out of the way of the plaintiff, and as on both the

remaining defences the learned Single Judge has held in

favour of the plaintiff his second appeal was required to be

allowed instead of being dismissed. We have, therefore, to

pass an appropriate order in this connection.

In the result this appeal is allowed. The judgment and

decree of dismissal of plaintiff's suit as passed by the

Trial Court and as confirmed by the First Appellate Court as

well as by the High Court are set aside. The plaintiff's

suit for partition and separation of his one half share in

the suit properties as described in the Schedule attached to

the plaint is decreed. A preliminary decree for partition as

per the provisions of Order 20 Rule 18, CPC is ordered to be

passed in favour of the plaintiff-appellant. In the facts

and circumstances of the case there will be no order as to

costs.