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2003 DIGILAW 33 (ORI)

Sundar Majhi v. Lukhi Majhiani

2003-01-16

B.PANIGRAHI

body2003
JUDGMENT B. PANIGRAHI, J. — The unsuccessful plaintiff in T. S. 19 of 1978 of the Court of Sub-ordinate Judge, Rairangpur (now Civil Judge, Senior Division) has filed this appeal against the dis¬missal of his suit claiming right, title, interest and possession for declaring him to be the adoption son of late Chuna Majhi. 2. It is the appellant’s case that late Chuna Majhi of Bada Gobra was the recorded owner of ‘B’ Schedule properties of the plaint. He had three wives, namely, Manda, Dangi and Lukhi, Manda died leaving behind her three daughters, namely, Parbati (defendant No. 2), Sanja and Ganga. After the death of Manda, Chuna married again to Dangi (defendant No. 5), but no child was born through her. Therefore, he married again to defendant No. 1 Lukhi. The further case of the appellant was that through Lukhi two more daughters were born, namely, Maya and Luli, who have been arrayed as defendants 3 and 4 respectively. Since Chuna had no male issue through any of his wives, therefore, he proposed to take the plaintiff as his adopted son who was none other than his agnetic nephew. Rama Majhi, the natural father of the plaintiff gave him in adoption which was accepted by Chuna Majhi. The aforesaid adoption was performed on a day in the month of Magha of 1953. Immediately before the adoption ceremony, Chuna with his two wives went to his cousin brother Rama’s house of village Jhalak. In presence of village gentlemen of Gobra and Jhalak villages and also village Padhan giving and taking ceremony of adoption of the plaintiff who was aged about 7 years had taken place. Since then the plaintiff has been looking after all the properties of Chuna as his adoption son. Chuna also performed the marriage of the plaintiff. 3. In order to avoid and prevent future litigation Chuna had executed a document in favour of the plaintiff in presence of both the wives and the daughters. At that time, the village gentlemen and also the Sarpanch of the village were present. 4. Immediately after the death of Chuna, there was family dissension and misunderstanding between defendant No. 1 and defendant No. 5, therefore, the plaintiff prayed for mutation of the entire lands belonging to Chuna in his favour in Mutation Case No. 1208/1971, wherein the Tahasildar directed for recording of the lands belonging to Chuna jointly . 5. 4. Immediately after the death of Chuna, there was family dissension and misunderstanding between defendant No. 1 and defendant No. 5, therefore, the plaintiff prayed for mutation of the entire lands belonging to Chuna in his favour in Mutation Case No. 1208/1971, wherein the Tahasildar directed for recording of the lands belonging to Chuna jointly . 5. Defendants 1 to 4 being aggrieved by the said order of the Tahasildar preferred an appeal and the appellate authority directed that such a complicated and disputed question of adop¬tion and also the claim of title could not have been decided by the mutation authority and as a sequel thereof allowed the appeal and asked the parties to take shelter in Civil Court in order to vindicate their rights. The defendants 1 to 4 have filed their written statement by disputing the adoption purported to have been made by Chuna. They further disputed the Ekrarnama alleged to have been executed by Chuna and they denied their thumb impression and stated the document. Ext.2, to be a forged one. Therefore, they prayed for dismissal of the suit. 6. Defendant No. 5 filed a separate written statement wherein she admitted a portion of the plaintiff’s claim to the effect that it is not Chuna who had taken the plaintiff in adop¬tion, but she had taken in adoption of the plaintiff with the permission of her husband. Such adoption ceremony was performed in presence of the village gentlemen. The deed dated 14.3.63 vide Ext.2 was invalid and inoperative in law. 7. The trial Court on an elaborate consideration of the oral and documentary evidence of both parties and after hearing their counsel was, however, of the view that the plaintiff could not discharge his onerous burden that he was taken in adoption by late Chuna. It was further observed that the deed dated 14.3.63 (Ext.2) was a forged and manufactured one by which no right could accrue to the plaintiff. The oral evidence placed by the plaintiff before the trial Court was incredible, unbelievable, untrustwor¬thy and the witnesses were found to be unreliable. On a compara¬tive assessment of the oral evidence of both parties he, however, persuaded himself to believe the evidence of the defendants. 8. The oral evidence placed by the plaintiff before the trial Court was incredible, unbelievable, untrustwor¬thy and the witnesses were found to be unreliable. On a compara¬tive assessment of the oral evidence of both parties he, however, persuaded himself to believe the evidence of the defendants. 8. From the facts stated by both the parties it has, however, emerged that the relationship between both the parties is practically admitted except the factum of adoption which the plaintiff claims in the suit. It is true that late Chuna had three wives and through the first wife three daughters were born where¬as through the third wife two daughters were born to him. There was no male issue, either through the second wife Dangi or the third wife Lukhi. Thus taking advantage of the fact that Chuna had no son born through any of his wives, the plaintiff has claimed to have been adopted to his family. 9. It is well settled in law that he who takes the plea of adoption must prove the said fact since by the factum of adoption he is displaced from the natural family and implanted into the family of his adoptive parents. It is claimed in this case that his adoption had taken place in the month of Magha of 1953. But no Tithi and date had been stated either in the pleadings or in the evidence. The plaintiff claimed in the suit that late Chuna went to the village Jhalak to the house of his natural father Rama Majhi with his two wives, namely, Dangi (defendant No. 5) and Lukhi. It is also stated that in presence of Gopal, Dargu, Muni, Chuna approached Rama Majhi to give away his son Sundar Majhi (the plaintiff) in adoption. Apart from the villagers of Jhalak, some other villagers of Bada Gobra, namely, P.Ws. 2, 3 and 5 have been examined. The plaintiff also examined his natural father and the 2nd wife of Chuna, Dangi Majhiani as P.Ws.7 and 8 respective¬ly. The trial Court disbelieved the factum of adoption inasmuch as the plaintiff, who claimed to have been adopted, had presented a vivid picture about such factum of adoption which had taken place while he was 7 years old. It is preposterous to contemplate that a boy of 7 years could remember like a photographic recollection of adoption so as to present it 27 years after. It is preposterous to contemplate that a boy of 7 years could remember like a photographic recollection of adoption so as to present it 27 years after. It is further strange to note that none of the plaintiff’s witness was able to say as to what was the age of Chuna at the time of adoption. 10. Lukhi, the third wife of Chuna was quite young and after the alleged adoption she had given birth to two daughters. Therefore, this fact militates against the theory of adoption advanced by the plaintiff. Lukhi’s age was estimated by the trial Court to be 18 years at the time of adoption. At such young age, it is beyond comprehension that Chuna permitted Lukhi to take a boy in adoption. The age of P.Ws.2 and 3 at the time of adoption was estimated to be 22 and 23 years respectively. In such back¬ground it also seems to be incredible as to why the other older people were left out, instead P.Ws.2 and 3 were chosen to be witnesses to adoption. It is not a case of ancient adoption. Therefore, the evidence with regard to adoption adduced by the plaintiff fell short of actual proof. 11. The Court below has also disbelieved the presence of P.W.2 Parbati since her age could have been not more than 12 years. The plaintiff has claimed that immediately after the adoption he was brought to the house of Chuna who reared him as his natural son. It does not stand to reason that while Kunar the grandson of Chuna could be brought up in his house and admitted in School, then why the plaintiff was not admitted and remained uneducated. Thus if the above aspect is examined along with the evidence of Dangi (P.W.8), her claim of adoption to the plaintiff appears to be incredible and unreliable. Therefore, the trial Court rightly rejected the evidence of P.W.8 who claimed the plaintiff’s adoption. 12. The plaintiff has filed a document purported to have been executed by Chuna on 14.3.63 admitting the plaintiff’s adop¬tion. This deed has been proved as Ext.2 by P.W.4 who was the then Sarpanch of the village. It contains the thumb marks of Dangi and Parbati, but they have clearly disputed their thumb impressions. The plaintiff had specifically failed to get the document examined along with the admitted thumb impression of Dangi and Parbati. This deed has been proved as Ext.2 by P.W.4 who was the then Sarpanch of the village. It contains the thumb marks of Dangi and Parbati, but they have clearly disputed their thumb impressions. The plaintiff had specifically failed to get the document examined along with the admitted thumb impression of Dangi and Parbati. It was held by the learned trial Court that the said document was forged one since it contained writings in a different ink. The thumb impressions of the witnesses are disputed and there are other unnatural features present in the said deed. The document was alleged to have been executed 10 years after the adoption. If Chuna had a mind to execute the document admitting the plaintiff’s adoption why the deed of adoption was not execut¬ed following such adoption and it was deferred till a decade past. Chuna could have also registered the said document. The scribe was also not a licensed deed writer. The schedule of properties was written in a different ink. At that time, Chuna was undisputedly bed-ridden and had taken ill. Therefore, on a consideration of the above aspects the trial Court felt it unsafe to rely upon such document. 13. Another circumstance was relied upon by the plaintiff in the trial Court that Dangi Majhiani deposed in the mutation case, but a closer examination of the record if could not howev¬er, be gathered by any lucid, clear and unambiguous evidence that she had admitted about the plaintiff's adoption. The scope of mutation proceeding was something different. The mutation au¬thority could not have decided with regards to adoption as ad¬vanced by the plaintiff. Therefore, the defendants filed an appeal before the competent authority, who directed the parties to settle their claims in a competent Civil Court. 14. As per the discussions made above, it is noticed that the appellant has substantially and significantly failed to discharge his burden to prove that Chuna Majhi had adopted him. Accordingly, there is no merit in this appeal and the same is dismissed, but without cost. Appeal dismissed.