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1980 DIGILAW 55 (ORI)

GIRISH CHANDRA PADHAN v. AMRIT BEWA

1980-04-21

S.ACHARYA

body1980
JUDGMENT : S. Acharya, J. - Defendant No. 1 in Title Suit No. 93/14 of 1972/74 in the Court of the Additional Second Munsif, Cuttack, has preferred this appeal against the judgment of the Court below confirming the decision of the trial Court. 2. The suit, as stated in the prayer in the plaint, is for declaration "that Defendant No. 1 is not the son or the adopted son of Bhajani Pradhan or his widow (the Plaintiff) holding that the settlement entries made in Hal Khata Nos. 8 and 11 at rent stage as well as in the finally published record-of-rights on 18-3-1974 showing the name of Defendant No. 1 as the son of Bhajani Pradhan and showing his interest as four annas therein are wrong without any basis and are fraudulent." 3. Defendant No. 1 only contested the suit. It is alleged by Defendant No. 1 that Bhajani died issueless and as Bhajani was suffering from Asthma he adopted this Defendant as soon as he was born, and thereafter the giving and taking ceremonies were performed on the 'Ekoisia' day of Defendant No. 1. This Defendant has also alleged that the suit is barred by limitation. 4. Both the Courts below have decreed the Plaintiff's suit on the findings that Defendant No. 1 has failed to prove that he was the adopted son of Bhajani, the husband of the Plaintiff, and that the suit is not barred by limitation. 5. In this Court the substantial question of law on which this appeal was admitted is whether in the facts and circumstances of the case, as appearing from the pleadings and evidence on record, the suit is barred by limitation. 6. It is urged by Mrs. Padhi, the learned Counsel for the Appellant, that the findings of both the Courts below that the suit is not barred by limitation is absolutely illegal and incorrect in view of the admitted fact that the Plaintiff, who was examined as P.W. 4 in the trial Court, has in effect admitted that in the year 1961 in the Settlement camp she came, to know that Defendant No. 1 got his name recorded for her lands on the basis that his father's name was Bhajani Pradhan, and that she in 1961 came to know that Defendant No. 1 was claiming those lands as the adopted son of Bhajani. 7. 7. In paragraph 8 of the cross-examination of the Plaintiff, examined as P.W. 4 in the suit, she has stated: In 1961 camp I came to know that Girish (Defendant No. 1) got his name recorded for my land. In that Patta he got it mentioned that his father's name is Bhajani Pradhan. Again in paragraph 9 of her cross-examination it has been elicited from her that- In 1961 camp I came to know that Girish (Defendant No. 1) was claiming my land as the son of Bhajani. The appellate Court, in affirming the decree of the trial Court says that by the said statements the Plaintiff did not admit that in the Settlement camp in 1961 she came to know that Defendant No. 1 claimed the lands on the basis of his case that he was the adopted son of Bhajani. In paragraph 3 of the plaint it is stated that: the Defendant No. 1 is the eldest son of Brahmananda. He was never adopted as son of Bhajani or the Plaintiff at any time nor any formalities of adoption as giving and taking ceremony was ever performed nor there was any occasion for the same. xx xx xx xx xx xx xx There was never any necessity or occasion on the part of Bhajani to adopt the Defendant No. 1 as son nor it was ever possible on the part of Brahmananda to give the Defendant No. 1 in adoption. In paragraph 4 of the plaint it is again stated that defend ant No. 1 is never the adopted son of Bhajani Padhan. In paragraph 5 it is stated that: the Defendant No. 1 who is a shrewd man in order to make an illegal gain out of the properties of the Plaintiff is now falsely claiming to be the adopted son of Bhajani and the Plaintiff and to establish such baseless claim he is now going on manufacturing papers in his support. xx xx In that paragraph apart from other things it is again stated that as Defendant No. 1 is putting up false claim to be the adopted son of the Plaintiff and her husband the Plaintiff has been compelled to file the suit for declaration. Paragraph 6 which constitutes the cause of action for the suit is as follows: 6. xx xx In that paragraph apart from other things it is again stated that as Defendant No. 1 is putting up false claim to be the adopted son of the Plaintiff and her husband the Plaintiff has been compelled to file the suit for declaration. Paragraph 6 which constitutes the cause of action for the suit is as follows: 6. That the cause of action for this suit arose on 10-1-1972 when the Plaintiff comes to know of the fact that the Defendant No. 1 is claiming himself as adopted son of Bhajani Padhan. From the above averments in the plaint it is quite evident that the suit has been filed as Defendant No. 1 is laying his claim to the property on the basis of his alleged assertion that he is the adopted son of Bhajani Padhan. In the written statement filed by Defendant No. 1 he has asserted his claim to the property on the basis of his assertion that he is the legally and validly adopted son of Bhajani and the Plaintiff. In view of the relationship of the parties, the facts averred in the plaint and the written statement and the context in which the above quoted sentences appear in the deposition of P.W. 4 it cannot at all be said that the Plaintiff by saying so meant that in the Settlement camp in 1961 she came to learn that Defendant No. 1 was laying his claim to the property as the natural born son of Bhajani. That interpretation given by the lower appellate Court to the above quoted sentences is unnatural, illusory and contrary to the assertions and stance of the Plaintiff in the suit and the facts and circumstances of the case. On a careful perusal of the averments in the plaint, the deposition of P.W. 4 and the written statement of Defendant No. 1, it is quite evident that by the above quoted two sentences the Plaintiff meant that in 1961 Settlement camp she came to know that Girish, Defendant No. 1, was laying his claim to the lands in question as the adopted son of Bhajani. 8. 8. It is urged on behalf of the Respondents that in examining the question as to whether a list is hit by the Limitation Act, the words on which that question is examined must be taken on their face value without interpreting and/or construing the same on consideration of any other facts or circumstances. I do not agree with the above contention. The functions of a Court are discharged by human agencies and not by machines and a Judge is expected to take decision on matters by application of his intellect on proper understanding of the facts presented before him. To act merely on the face value of the words, without trying to know the true meaning or import of the words by looking at the context, circumstances and the manner of expression, would be unrealistic and undeserving of a Judge. Of course, in trying to know the true meaning or the real import of the words, the Judge should not stretch his imaginations and ingenuity too wide and too far thereby running the risk of importing in collect meaning to those words, possibly not meant by the speaker thereof. 9. In the facts and circumstances of this case and in view of the averments in the pleadings and the context in which the above quoted statements have been made by the Plaintiff, it is quite evident that the Plaintiff came to know in 1961 in the Settlement camp that the Defendant No. 1 was laying his claim to the lands in question on the basis of his alleged adoption to Bhajani. That being so, the Plaintiff had knowledge of Defendant No. 1's said claim in 1961, i.e. 11 years prior to the institution of the suit, and hence this suit for declaration that Defendant No. 1 was not the adopted son of Bhajani is clearly barred by limitation as per Article 57 of the Limitation Act. 10. The contention put forward on behalf of the Respondents, that the suit is not only for the aforesaid declaration but is also for correction of the incorrect entries in the Record-of Rights in respect of the lands in Hal Khata Nos. 8 and 11, is without any substance or basis. There is no prayer in the suit to the above effect. 8 and 11, is without any substance or basis. There is no prayer in the suit to the above effect. Paragraph 6 of the plaint says that the cause of action for the suit arose on 10-2-1972 when the Plaintiff came to know of the fact that Defendant No. 1 was claiming himself to be the adopted son of Bhajani Padhan. The date "10-2-1972" stated therein is imaginary, and nothing is stated in the plaint or in the deposition of the Plaintiff to show on what basis that date is mentioned in that paragraph. Paragraph 7 of the plaint is as follows: The suit is valued at Rs. 100/- and it being a suit for declaration only a fixed Court-fee of Rs. 22.50 is paid thereon. From paragraphs 6 and 7 and other averments in the plaint it is quite evident that the suit was filed only for a declaration that Defendant No. 1 is not the adopted son of Bhajani Pradhan The other portion of the prayer is only ancillary to the said relief. The Record-of-Rights referred to in that portion of the prayer has not been filed, nor there is any prayer for correction of the same. Moreover, Court-fee only for the aforesaid declaration asked for has been paid, as specifically stated in the plaint, and no Court-fee for any consequential relief has been paid. That being so, the suit is purely a suit for declaration that Defendant No. 1 is not the adopted son of Bhajani Pradhan and the suit having not been filed within 3 years from the date of knowledge of the Plaintiff about the said claim of Defendant No. 1 is barred by...limitation and is to be and is hereby dismissed on that ground. Hence this appeal succeeds and the judgments of the Courts below are set aside. In the facts and circumstances of the case, each party will bear his own costs throughout. Final Result : Dismissed