Holding

The Supreme Court held that the first appellate court's finding that the plaintiff was not adopted was a final pure finding of fact not affected by any error under Section 100(1), and thus the High Court was not justified in interfering.

Summary

Ram Das, a minor when his father died, sought partition of his undivided half share in ancestral property. The defendant uncle claimed that Ram Das had been adopted by his stepfather before his mother's remarriage, that a partition had already occurred during his father's lifetime, and that the defendant had acquired the property by adverse possession. The trial court dismissed the suit on all three grounds; the first appellate court reversed the first two defenses but upheld the adverse possession claim. The High Court reversed the first appellate court on the adoption issue, relying on the stepfather's payment of marriage expenses for the plaintiff's sister, and dismissed the second appeal. The Supreme Court held that the first appellate court's finding that the plaintiff was not adopted was a pure finding of fact, not vitiated by any error under Section 100(1) of the CPC, and therefore the High Court could not interfere; the appeal was allowed and the decree for partition was granted.

Issues considered

Whether the High Court could interfere with a pure finding of fact on adoption made by the first appellate court under Section 100(1) of the Code of Civil Procedure, 1908.
Whether the evidence of the stepfather's payment of marriage expenses for the plaintiff's sister is material to the question of adoption.
Whether the plaintiff is entitled to partition of the ancestral property despite the defenses of adoption, prior partition, and adverse possession.

Legislation cited

Code of Civil Procedure, 1908s. 100(1)(a), s. 100(1)(b), s. 100(1)(c), s. 103, s. Order 20 Rule 18, s. Order 41 Rule 22

Subjects

adoptionpartitioncivil appealSection 100 CPCpure finding of factsecond appealHindu lawadverse possessionjoint family property

Judgment

RAM DAS ALIAS RAM SURAJ A
v.
• SMT. GANDIABAI AND ORS.

NOVEMBER 20, 1996

[N.P. SINGH AND S.B. MAJMUDAR, JJ.] B

Code of Civil Procedure, I 908: Section I 00 :

Second appeal-Interference with findings of fact by first appellate
court by High Court-Finding of fact recorded-By first appellate court
on reappreciation ofevidence that plaintiffwas not adopted by his stepfather C
before remarriage ofplaintiffs mother with his stepfather-However, first
appellate court did not consider circumstance of incurring expenses by
stepfather on occasion of marriage of plaintiff's sister while deciding
question ofplaintiff's adoption-Held: It had to be shown that finding of
fact by the first appellate court was affected by any oferrors as contemplated D
by S. 100(/)(a), (b) & (c)-Such a pure finding offoct neither contrary to
law nor to any usage having force of/aw, nor vitiated by failure to determine
any 1naterial issue of la1v or usage, nor vitiated by substantial error or
defect in the procedure provided by CPC or by any other law for the time
being in force which might possibly have produced error or defect in the
decision on this queslion---Tl111s none oflhe grounds contemplated by Section E
100(/)(a), (b) and (c) existed on record of the case-However, non-
consideralion ofcircumstance ofincurring marriage expenses by stepfalher
lo/ally, irrelevant of deciding question of plaintiffs adoption-Since no
material evidence having a direct impact on the decision of the case on
merits was ignored by the first appellate court as final court offacts while
arriving at the finding ofplaintiff's adoption, High Court no/ legally justified F
in inte1fering with clear finqling offact arrived al by first appellate court
in favour ofplaintiffon issue of adoption andfirst appellate court ',·finding
that plaintiffwas not adopted mus/ be lreated to have been finally established
on record-Hindu Law-Adoption.

G
The appellant--plaintitrs grandfather died leaving behind two
sons, the respondent-defendant and the plaintitrs father. The
plaintifrs father died leaving behind the plaintiff as his son, a daughter
and his widow. The plaintiff was six months old when his father
died. As the plaintiff was a minor the properties after the death of
his father used to be managed by the defendant as 'Karla' of the H
829
830 SUPREME COURT REPORTS [ 1996] SUPP. 8 S.C.R.

A family. Property was thus in joint possession of the parties. After
attaining majority plaintiff sought for partition and separate possession
of his one half share which the defendant refused. The plaintiff,
therefore, filed a suit against the respondent-defendant for partition
and separation of his half share in the properties.

B The defence of the defendant was three-fold. Firstly, plaintifrs
mother got remarried and plaintiff was given in adoption to his
stepfather before her remarriage with him and consequently plaintiff
had ceased to belong to the family of defendant and his deceased
father and hence he had no right, title or interest in the suit properties.
Secondly, during the lifetime of the plaintiff's father there was
C partition of properties and, therefore, also plaintiff had no right,
title or interest in the suit properties. Thirdly, the defendant had
become owner of suit properties by adverse possession.

The trial court dismissed the suit. On appeal the first appellate
court reversed the findings of the Trial Court on the first and second
D issues. However, the First Appellate Court confirmed the decree of
dismissal of the suit on the third ground.

On second appeal, the High Court reversed the findings of the
First Appellate Court on the second and third issues. However, the
E High Court noted that the first appellate court omitted to take into
account the circumstance that the marriage of the plaintifrs sister
was performed not by the defendant but by the plaintifrs stepfather
which showed that the plaintiff was adopted by the stepfather and
on this sole ground dismissed the second appeal. Being aggrieved the
appellant-plaintiff preferred the present appeal.
F
On behalf of the appellant-plaintiff it was contended
that the High Court should not have dismissed the second
appeal by interfering with a pure finding of fact reached by the final
court of facts on the question of adoption as such an exercise was not
G permissible under Section I 00 of the Code of Civil Procedure, 1908.

Allowing the appeal, this Court ....
HELD : I. It had to be shown that the finding of fact by the
First Appellate Court was affected by any of the errors as
H contemplated by Section IOO(l)(a), (b) & (c) of the Code of Civil
RAM DAS v. GANDIABAI 831

Procedure, 1908. The first appellate court had reached a pure finding A
of fact on reappreciation of relevant evidence that appellant was not
• adopted by his stepfather before remarriage of appellant's mother
with his stepfather. Such a finding of fact based on relevant evidence
as arrived at by the first 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 B
usage having the force of law. Nor was there 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. Thus
none of the grounds contemplated by Section 100(\)(a) (b) and (c) of
the CPC existed on the record of the case. However, non-consideration C
of the circumstance of incurring expenses by the stepfather on the
occasion of the marriage of the appellant's sister is totally irrelevant
for deciding the question of appellant's adoption. [836-E-H[

1.2. Since no material evidence having a direct impact on the
decision of the case on merits was ignored by the First Appellate Court D
as the final court of facts while arriving at the finding that the plaintiff
was not adopted by his stepfather, the High Court was not legally
justified in interfering with the clear 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 his stepfather must be treated to have been finally E
established on record. [837-E-GJ

Madamanchi Ramappa & Anr. v. Muthaluru Bojjappa, AIR (1963)
SC 1633 and Bholaram v. Ameerchand, [1981[ 2 SCC 414, referred to.
F
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3784 of
1986.

From the Judgment and Order dated 3.7.1981 of the Bombay High
Court in Second Appeal No. 310of1969.
G
V.A. Bobde and A.K. Sanghi for the Appellant.

S.V. Deshpande for the Respondents.

The Judgment of the Court was delivered by : H
832 SUPREME COURT REPORTS [1996] SUPP. 8 S.C.R.

A 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 1969. 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
B 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 the judgment. The plaintifl'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
C and the defendant Prayag were sons of one Balbhaddar Teli. That plaintifl'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.
D He, therefore, filed a Civil Suit No. 289A 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 plaint and for mesne profits. According to the plaintiff his
grandfather Balbhaddar died in or about the year 1911 leaving behind him
E 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
F thus in joint possession of the parties. That plaintiff was staying with his
mother at Nagpur and 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.
G
The defence of the original defendant was threefold. 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
H father Ram Prasad and consequently he had no right, title or interest in the
RAM DAS v. GANDIABAI [S.B. MAJMUDAR, J.] 833

suit properties. The second defence was that in the lifetime of plaintiffs A
father Ram Prasad there was partition of properties and Ram Prasad was
• given his 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. B

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
plaintiffs mother and, therefore, plaintiff had no right, title or interest C
left in the properties of his deceased natural father. It was also held that
there was partition between plaintiffs natural father Ram Prasad and the
defendant during the forrner's lifetime and that the plaintiffs 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 D
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 plaintiffs father on the one hand and the
defendant on the other during plaintiffs father's lifetime and, therefore, E
the finding of the Trial Court on this issue was reversed. The learned
. Appellate Judge also held that the defendant had failed to prove 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 F
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 Jost on the last ground. The plaintiff carried the
matter in Second Appeal being Second Appeal No. 310of1969. A learned
Single Judge of the High Court agreed with the finding of fact reached by
the first Appellate Court that there was no partition of properties between G
the plaintiffs 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 H
834 SUPREME COURT REPORTS [1996] SUPP. 8 S.C.R.

A 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 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 dis.missal as confirmed by the First Appellate
Court on the finding held against them as per the provisions of Order 41
B Rule 22 Code of Civil Procedure ('CPC'for short), took the view that
plaintiff's adoption by Ram Charan who subsequently became his stepfather
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 his deceased father and uncle, original
C 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
D 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 an exercise was
not permissible und.er Section I 00, CPC. Jn 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
E 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 I 00,
CPC cannot interfere with the findings of fact unless these findings are
found to be vitiated in Jaw. It is of course true that the Second Appeal of
the plaintiff was filed in I 969 and it had to be decided according to the
F provisions of Section I 00, CPC as applicable prior to their substitution
by the new Section I 00 as brought on the Statute Book by Civil Procedure
Code Amendment Act, I 976 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
G shown that the findings reached by the lower Appellate Court involved
any errors of Jaw as laid down by Section 100(1) (a), (b) and (c) as were
applicable prior to I 976. The said provisions as applicable prior to 1976
read as under:

"'I 00(1 ). Save where otherwise expressly provided in the body
H of this Code or by any other law for the time being in force,
RAM DAS v. GANDIABAI [S.B. MAJMUDAR, J.] 835

an appeal shall lie to the High Court from every decree A
passed in appeal by any court subordinate to a High Court on
any of the following grounds, namely:

(a) the decision being contrary to Jaw or to some usage having
the force of Jaw;
B
(b) the decision having failed to determine some material
issue of Jaw 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 defect in the C
decision of the case upon the merits."

It is also true that Section I 03, 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 down under the then existing Section D
I 03 which read as under:

"103. In any second appeal, the High Court may, if the
evidence on the record is sufficient, determine any issue of
fact necessary for the disposal of the appeal which has not
been determined by the lower appellate Court or which has E
been wrongly determined by such court by reason of any
illegality, omission, error or defect such as is referred to in
sub-section (I) 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 F
1969 it had to be shown that the lower Appellate Court had wrongly
determined any 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 provision of Section G
•• 100 sub-section(!) (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 H
836 SUPREME COURT REPORTS [1996] SUPP. 8 S.C.R.

A made by the First Appellate Court on point no. l 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
B Court also noted that the remaining witness 3abu 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 plaintiffs 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
C relied upon by the defendant to prove plaintiffs adoption by Ram Charan,
namely, that in primary school at Nagpur name of plaintiffs 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 stepfather at Nagpur as he was a minor staying with his mother
who had remarried Ram Charan. Thus relevant evidence was reappreciated
D 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
h.is step-son. This pure finding of fact is interfered with by the _learned
Single Judge in Second Appeal while exercising jurisdiction under Section
l 00, CPC. In our view such a finding of fact based on relevant evidence
E as arrived at by the First Appellate Court was final. It was neither contrary
to law nor to some usage having force oflaw. Nor had the First Appellate
Court failed to determine any material issue of law,or usage having the
force oflaw. 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
F 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 l 00, CPC,
even on the basis that simplicitor error of law also could be interfered
G 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
H who spent for her marriage and that the plaintiff was required to accept a
RAM DAS v. GANDIABAI [S.B. MAJMUDAR, J.] 83 7

job of Rs. I 0 p.m. So far as this latter aspect is concerned a mere look at A
the decision of the First Appellate Court shows that the learned Judge as a
final court of facts while deciding the plaintiffs first appeal had already
considered the circumstance that the appellant had admitted in his evidence
that he was serving for about I 0 to I 2 years in different concerns at Nagpur
and that there was his admission that he passed a receipt regarding his
salary to the Dunson Printing Press. However the First Appellate Court B
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 Appellate
Court. However the first aspect, namely, expenses on the occasion of
marriage of the plaintiffs sister were incurred by their step-father Ram C
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
plaintiffs mother re-married plaintiff and his sister Tulsabai were the
children from her first husband, plaintiffs father. On re-marriage plaintiffs D
mother along with these two children went and stayed with Ram Charan.
Thereafter ifRam Charan had spent money on their upkeep and upbringing
as step-children and even ifhe 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 E
Charan so far as his step-daughter Tulsabai was concerned, was totally an
irrelevant circumstance which had no impact on the finding of plaintiffs
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 offacts while arriving
at the finding that the plaintiff was not adopted by Ram Charan. F
Consequently it must be held that the learned Single Judge of the High
~· Court was not legally justified in interfering with the clear 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 G
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 H
838 SUPREMECOUIU REPORTS [1996] SUPP. 8 S.C.R.

A 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 plaintiffs suit as passed by the Trial Court and as confirmed
8 by the First Appellate CoU1i 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 coSIS.
c
v.s.s. Appeal allowed.

'( :