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2009 DIGILAW 321 (ORI)

Raghunath Mohanty v. Juti Dei

2009-04-10

B.N.MAHAPATRA, B.S.CHAUHAN

body2009
JUDGMENT B.N. MAHAPATRA, J. — The above two appeals have been directed against the order and judgment dated 26.3.2001 passed by the learned Single Judge in First Appeal Nos.159/84 and 195/84 dismissing the first appeal preferred by the appellant by revers¬ing the judgment and decree in T.S. No.278 of 1978/48/77 and allowing the first appeal preferred by the respondent. 2. Since the appellants in both the appeals are same and the issues involve are same, they are being heard together and disposed of by this common judgment. 3. The facts and circumstances giving rise to the present appeals are that originally the plaintiff-appellant filed a suit for declaration of the title and confirmation of possession and in the alternative, for recovery possession of the suit land. The case of the plaintiff-appellant before the trial Court was that he was the adopted son of one Sankar Mohanty and Labani Bewa, who adopted him during Dolapurnima in 1944. After the death of San¬kar, Labani Bewa executed a deed of gift on 22.07.1953 in favour of the plaintiff and since then he was in possession, but subse¬quently Labani alienated the same property in favour of the defendant by executing two sale deeds dated 17.01.1977 and 21.04.1977 respectively. The defendant in her written statement denied about such adoption and the deed of gift. According to the defendant, the said deed of gift had not been validly executed by Labani Bewa. On the basis of the pleadings taken by the parties, the trial Court framed as many as eight issues, out of which the learned Single Judge considered issue Nos.3 and 4 as the main issues which are as follows:- “3. Whether the plaintiff is the adopted son of Sankar and Labani Bewa ? 4. Whether the deed of gift dated 22.07.1953 executed by Labani Bewa, a pardanasin illiterate lady in favour of the plaintiff is genuine and valid ?” The plaintiff examined seven witnesses whereas the defendant examined ten witnesses. Fourteen documents were exhibited by the plaintiff and the defendant exhibited eleven documents. Learned Trial Court after taking into consideration the oral as well as the documentary evidence held that the plaintiff was the adopted son of Sankar and Labani Bewa but disbelieved the fact of execution of gift deed dated 22.07.1953 in favour of the plaintiff. Fourteen documents were exhibited by the plaintiff and the defendant exhibited eleven documents. Learned Trial Court after taking into consideration the oral as well as the documentary evidence held that the plaintiff was the adopted son of Sankar and Labani Bewa but disbelieved the fact of execution of gift deed dated 22.07.1953 in favour of the plaintiff. The trial Court held the two sale deeds dated 17.01.1977 and 21.04.1977 executed in favour of the defendant as valid in respect of half interest of Labani therein. Thus, the suit was decreed in favour the plaintiff as regards adoption, but was dismissed in respect of execution of gift deed and alienation of the property in favour of defendant covered under the afore¬said two sale deeds. Being dissatisfied with the said judgment and decree of the trial Court, both the plaintiff and defendant filed appeals before this Court. The main contention of the plaintiff was relating to validity of the deed of gift. The plaintiff has also challenged the portion of the decree under which the suit in respect of the property covered under the aforesaid two sale deeds had been rejected. The main question in the appeal filed by the defendant was relating to finding of adoption of the plaintiff by Sankar and Labani. Since both the appeals were directed against the same judgment and decree they were disposed of by the learned Single Judge by a common judgment. The learned Single Judge disagreed with the finding of the trial Court regarding adoption. However, he upheld the finding of the trial Court that the execution of gift deed in favour of plaintiff was not valid. With the above observation, the first appeal filed by the plaintiff was dis¬missed by reversing the judgment of the trial Court and the first appeal filed by the defendant was allowed. 4. Mr. P.K. Rath, learned counsel for the appellant raises all the issues which were agitated before the learned Single Judge. 5. So far as the first question is concerned, law is well settled that adoption has to be proved in accordance with law. As adoption displaces the natural course of succession, onus lies on the person claiming adoption to prove the same. 5. So far as the first question is concerned, law is well settled that adoption has to be proved in accordance with law. As adoption displaces the natural course of succession, onus lies on the person claiming adoption to prove the same. Merely because the plaintiff has been described as son of his alleged adoptive father in a sale deed executed by the plaintiff in favour of the defendant the same cannot confirm the status of being adopted son of Sankar. Admittedly, after 1980 the plaintiff has been de¬scribed as son of his alleged adoptive father but by that time the dispute had already arisen as the Labani Bewa had purportedly cancelled the deed of gift and alienated the property in favour of the defendant. It is also not in dispute that prior to 1970 in many documents the plaintiff has been described as the son of his natural father. Exhibits ‘F’ and ‘G’ are Khatian and Parcha respectively. Under exhibits ‘D’ and ‘E’ the plaintiff had pur¬ported to purchase property from others wherein he had been described as the son of his natural father Makar Sahu. When this is confronted to the learned counsel for the appellant, he failed to give any satisfactory explanation. The contention of the appellant to fall back upon the theory of ancient adoption does not arise since witnesses regarding the alleged adoption were available at the time of filing the suit. The learned Single Judge after taking into consideration the evidence of PWs 1 to 5 and certain documents so also the exhibits ‘D’, ‘E’, ‘F’ and ‘G’ came to the conclusion that the claim of adoption is not believa¬ble. The oral evidence as well as the documentary evidence ad¬duced on behalf of the plaintiff fell far short of the required proof regarding adoption. 6. The second issue relates to the genuineness of gift deed. The learned Single Judge has upheld the finding of the trial Court who disbelieved the gift deed allegedly executed by Labani Bewa. Learned Single Judge held that apart from the fact that the 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 docu¬ment. The attesting witness examined as PW-6 did not support the case of the plaintiff. Learned Single Judge held that apart from the fact that the 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 docu¬ment. The attesting witness examined as PW-6 did not support the case of the plaintiff. There has been denial by her about the due execution of the gift deed. Learned counsel for the appellant could not improve his case before us in this regard. Since the plaintiff-appellant failed to prove the adoption in accordance with law and the gift deed allegedly executed by Labani Bewa in favour of plaintiff-appellant has been disbelieved and the two sale deeds executed by Labani in favour of defendant have been held to be valid, the entire property alienated through these two sale deeds passed on to the defendant. 7. In view of the above, we do not find any infirmity in the judgment and order of the learned Single Judge warranting interference by this Court. In the result, the appeals are dismissed. DR. B.S. CHAUHAN, C.J. I agree. Appeals dismissed.