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1995 DIGILAW 273 (ORI)

RABINARAYAN KHUNTIA v. FAKIR DALEI

1995-07-21

R.K.DASH

body1995
JUDGMENT : R.K. Dash, J. - This appeal by the plaintiff is against the reversing judgment of the learned District Judge, Puri, passed in Title Appeal No. 74 of 1976. 2. Plaintiff's suit was for a declaration of title, recovery of possession and for injunction in respect of the suit land to an extent of Ac. 1. 82-1/2 dec., more specifically described in Schedule 'B' of the plaint. Plaintiff's case, in brief, was that the suit land belonged to one Lokanath Dalai who died issueless. His wife predeceased him. Defendants 3 to 5 as brother's and sister's sons of Lokanath succeeded to all his properties including the suit land and while being in possession, transferred the suit land to the plaintiff under the sale deed, Ext. 1. Defendant No. 1 advanced a false claim over the suit land alleging that he is the adopted son of Lokanath. It is asserted by the plaintiff that both Lokanath and his wife were illiterate and taking advantage of their illiteracy defendant No. 1 got some deeds of conveyance executed and registered from them describing himself as their son and subsequently transferred certain properties belonging to Lokanath to defendant No. 2 by a registered sale deed, Ext. H. A dispute regarding possession of the suit land arose for which a proceeding u/s 145, Cr PC was initiated and in that proceeding possession was declared in favour of defendant No. 2. This led the plaintiff, who was then a minor, to file the present suit through his father/guardian for declaration of his title and other consequential reliefs. 3. Defendants 1 and 2 filed joint written statement and traversed the averments made in the plaint. Their positive assertion was that as Lokanath was issueless, he and his wife adopted defendant No. 1 about 42 years back in presence of their relations. So, defendant No. 1 being the adopted son of Lokanath, succeeded to all. his properties including suit land. Defendants 3 to 5 who had no right, title or interest over the suit land transferred the same under the sale deed Ext. 1 to the plaintiff and the said document being invalid and inoperative, conveyed no title in favour of the plaintiff. 4. his properties including suit land. Defendants 3 to 5 who had no right, title or interest over the suit land transferred the same under the sale deed Ext. 1 to the plaintiff and the said document being invalid and inoperative, conveyed no title in favour of the plaintiff. 4. The trial Court framed as many as seven issues and having discussed the evidence, both oral and documentary, adduced by the parties, disbelieved the defendant No. 1's plea of adoption and consequently decreed the plaintiff's suit. Upon appeal, the learned District Judge on re-appraisal of the evidence as also relying upon the documents, viz : sale deeds executed by Lokanath and his wife, voters-list and admission of Lokanath's wife in criminal proceeding, came to hold that defendant No. 1 is the adopted son of Lokanath and having so held, he allowed the appeal and dismissed the suit. It is against this judgment of the appellate Court that the plaintiff has preferred the present appeal. 5. In view of the pleadings of the parties, the crux of the issue is whether defendant No. 1 is the adopted son of Lokanath. If this is answered in the affirmative, then seal of approval has to be affixed to the appellate Court's judgment. 6. It is well established principle of law that heavy onus lies upon the person who seeks to displace the natural succession by alleging adoption. When the question arises whether there has been adoption in a particular case, the conduct of the parties both before and after adoption, the attendant and antecedent circumstances, the existence or absence of any writing with reference to adoption and any previous adjudication in the matter by the Court, though not interparties, would be relevant. It is not possible in every case to lead oral evidence of giving and taking to prove adoption and more particularly in the case of old adoption. Where the adoption is alleged to have taken place long ago and the adopted son has been treated as such by public documents and by members of the family and other relations, there is a presumption in favour of adoption and the burden lies upon the person who challenges adoption. Where the adoption is alleged to have taken place long ago and the adopted son has been treated as such by public documents and by members of the family and other relations, there is a presumption in favour of adoption and the burden lies upon the person who challenges adoption. In the present case, defendant No. 1 claimed to have been adopted by Lokanath sometime in the year 1932 and by the time the parties led their evidence in the Court below about 45 years hard elapsed. It being a case of old adoption, defendant No. 1 could not lead ocular evidence regarding giving and taking as required under law. Therefore, he mainly relied upon the documentary evidence, namely, electoral roll Ext. G, two sale deeds Exts. A/6 Ext. B/6, settlement Parchas Exts. C and F, statement of Suna, wife of Lokanath in a criminal proceeding, Ext. D and the settlement record-of-rights, Ext. J. On the other hand, the plaintiff to disprove the alleged adoption relied upon two sale deeds Exts. 6 and 13 and the settlement Parchas Exts. 12 and 12/a. Learned District Judge having made a thorough scrutiny of all these documents, accepted defendant No. 1's plea of adoption and held that he is the adopted son of Lokanath. He has assigned good reasons in not relying upon the documents of the plaintiff. In the electoral-roll, Ext. G defendant No. 1 has been described as the son of Lokanath. The said electoral roll was prepared in 1986 by which time the present dispute was not in its mother's womb. An electoral roll is a public record made in performance of duty specially enjoined by law and an entry made therein is admissible in evidence u/s 35 of the Evidence Act. In this context, it would be apposite to refer to a Full Bench decision of this Court in the case of Kirtan Sahu and Ors. v. Thakur Sahu and Ors. : Vol. XXXVIII (1972) CLT 82, where R.N. Misra, J. (as he then was) speaking for the Court in paragraph 5 of the judgment held : "Therefore, when the electoral roll is produced before the Court by virtue of Section 81 read with Section 4 of the Evidence Act, the Court shall regard the fact entered in the electoral roll as proved unless and until it is disproved." The above being the position of law, electoral roll Ext. G describing defendant No. 1 as son of Lokanath can be accepted as a strong piece of evidence in support of adoption. Added to it, there is an earlier statement of Suna, Lokanath's wife, in a criminal proceeding of the year 1958 vide Ext. D where she unequivocally admitted defendant No. 1 as her son. That apart, settlement Parchas, Exts. C and F and the record-of-rights, Ext. J also corroborate defendant No. 1's plea of adoption. All these documentary evidence coupled with admission of Lokanath's wife in a criminal, proceeding weighed with the learned District Judge to hold that defendant No. 1 is the adopted son of Lokanath. So far plaintiff's documents are concerned, as stated earlier, the learned District Judge haying assigned good reasons did not accept the same. On going through those documents, I also do not find good ground to take a different view. 7. In the result, the appeal fails and the same is dismissed. In the circumstances, there shall be no order as to costs. Final Result : Dismissed