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2001 DIGILAW 129 (ORI)

RAGHUNATH MOHANTY v. JUTI DAI

2001-03-26

P.K.MISRA

body2001
P. K. MISRA, J. ( 1 ) PLAINTIFF is the appellant in F. A. No. 159/84, whereas the connected fa. No. 195/84 has been filed by the defendant. The suit was filed for declaration of title and confirmation of possession, in the alternative, for recovery of possession. It was claimed that the plaintiff was the adopted son of one Sankar Mohanty and Labani Bewa and after the death of Sankar, Labani Bewa held executed a deed of gift in favour of the plaintiff, but-subsequently, the aforesaid Labani bewa again alienated the property in favour of the defendant by two registered sale deeds dated 17. 1. 1977 and 21. 4. 1977. . ( 2 ) THE defendant in her written statement denied about the alleged adoption and the deed of gift stating that the said deed of gift had not been validly executed. ( 3 ) ON the aforesaid pleadings, the Trial court had framed several Issues. The main issue under issue Nos. 3 and 4 are as follows" (3) Whether the plaintiff is the adopted son of Sankar and Labani Bewa (4) Whether the deed of gift dated 22. 7. 1953 , executed by Labani bewa, a Pardanasin illiterate Lady in favour of the plaintiff is genuine and valid ?"the trial Court found under issue No. 3 that the plaintiff was the adopted son of Sankar and Labani Bewa, but disbelieved the due execution of the deed of gift dated 22. 7. 1953 and upheld the two sale deeds in favour of the defendant as valid and decreed the suit in favour of the plaintiff and dismissed the same in respect of the property covered under the two sale deeds dated 17. 1. 1977 and 21. 4. 1977 in favour of the defendants. ( 4 ) THE plaintiff has challenged the portion of the decree under which the suit in respect of the property covered under the two sale deeds had been rejected. The defendant has filed the appeal challenging the part of the decree in favour of the plaintiff. In the appeal filed by the defendant, the main question is relating to the finding of adoption of the plaintiff by sankar and Labani. In the appeal filed by the plaintiff the main contention is relating to the validity of the deed of the gift. In the appeal filed by the defendant, the main question is relating to the finding of adoption of the plaintiff by sankar and Labani. In the appeal filed by the plaintiff the main contention is relating to the validity of the deed of the gift. Both the appeals being directed against the same judgment and decree are disposed of by this common judgment. ( 5 ) SINCE the question of adoption is the main issue, it is more appropriate to deal with the said question first. Law is now well-settled that as adoption displaces the natural course of succession, onus lies on the person who claims on the basis of adoption. The plaintiff in order to prove the adoption has relied upon the evidence of P Ws 1,2,4,5,7 and certain documents The defendant apart from adducing denial evidence through the mouth of several witnesses, has proved several documents wherein the plaintiff had been described as the son of Makar Sahu, his natural father. ( 6 ) P. W. 1 a relation of the natural father of the plaintiff, has deposed about the adoption Inter alia he has stated that one Dhruba mohapatra functioned as priest in the adoption ceremony The aforesaid Dhruba mohapatra was examined as P W 2. However, pw. 2 claims to have attended the Sradha ceremony of Sankar, but does not claim, that he functioned as a priest at the time of adoption In fact, he states that he heard about the adoption from others, but does not claim to be a direct witness to the adoption. In the original plaint, the date/year had not been indicated. However, subsequently, by way of amendment, it was indicated that the adoption had taken place on Dola Purnima day of 1944 If this would have been the single inconsistency in the pleading relating to adoption, one could have possibly come to a conclusion that a vague statement had been made or a wrong recording had been made. However, the story of adoption cannot be accepted in view of many other infirmities in evidence. However, the story of adoption cannot be accepted in view of many other infirmities in evidence. It is not disputed that the natural father and mother of the plaintiff were alive at the time of hearing of the suit, but strangely enough, none of them was examined as a witness Similarly, the person who functioned as priest was not examined and, as already indicated, there is some doubt as to who had functioned as the priest ( 7 ) THE Trial Court had relied upon the certified copies of two sale deeds, wherein the husband of the defendant had purported to purchase the land from the plaintiff wherein the plaintiff had been described as the son of his adoptive father The aforesaid recital in the sale deeds cannot confer the status of being the adopted son on the plaintiff, as the adoption has to be proved in accordance with law. It is, of course. true that particularly after 1980, the plaintiff has been described as son of his alleged adopted father. But it has to be kept in mind that by then the dispute had already arisen, as Labani Bewa had purported to cancel the deed of gift and had alienated the property in favour of the defendant. On the other hand, prior, to 1970, in many documents the plaintiff has been described as son of his natural father, such as in Exts. F and G, Khatian and Parcha respectively. In Exts. D and E, the pliantiff had purported to purchase property from others wherein he had been described as the son of Makar Sahu. While being asked about such sale deeds, the plaintiff had given evasive answers. Since the witnesses regarding the alleged adoption were available at the time of filing of the suit, the question or falling back upon the theory of ancient adoption did not arise. The oral evidence as well as the documentary evidence adduced on behalf of the plaintiff fell far short of the required proof, regarding adoption On the other hand, some of the documentary evidence adduced on behalf of the defendant militate against the theory of adoption. For the aforesaid reasons, I am unable to agree with the finding of the Trial court that the plaintiff was the adopted son of Sankar. ( 8 ) THE Trial Court had disbelieved the gift deed allegedly executed by Labani. For the aforesaid reasons, I am unable to agree with the finding of the Trial court that the plaintiff was the adopted son of Sankar. ( 8 ) THE Trial Court had disbelieved the gift deed allegedly executed by Labani. Apart from the fact that evidence regarding due execution of the gift deed was lacking, the Trial Court had commented about the failure on the part of the plaintiff to prove the due attestation of the document The attesting witness examined as P. W. 6 did not support the case of the plaintiff. In the written statement filed by Labani when the case had been filed before the Munsif. there had been denial by her of the due execution of the deed of gift. The conclusion of the trial Court on this aspect is based on discussion of the relevant materials and does not call for any interference Once it is found that the plaintiff had failed to prove about his alleged adoption and had failed to prove about the due execution of the deed of gift, the entire suit is bound to be dismissed For the afore-said reasons, First Appeal No 159/84 is dismissed and First appeal No. 195/84 is allowed However, the parties are directed to bear their own costs throughout. First Appeal No. 159/84 dismissed, other appeal allowed.