Research › Search › Judgment

Orissa High Court · body

2013 DIGILAW 250 (ORI)

GOVINDA ACHARYA v. PARAMANANDA ACHARYA

2013-07-29

M.M.DAS

body2013
JUDGMENT : M.M. Das, J. - This second appeal has been preferred against the Judgment and decree dated 31.3.2005 and 15.5.2005 respectively passed by the learned Civil Judge (Senior Division), Chhatrapur in R.F.A. No. 7 of 2004 reversing the judgment and decree passed by the learned Addl. Civil Judge (Junior Division), Khallikote in T.S. No. 9 of 1995. The second appeal has been admitted on the substantial questions of law. which are as follows : 1. Whether the finding of the Lower Appellate Court to the following effect i.e., "I find the claim of the plaintiff, finding support from Article 224 of the 16th Edition of Mulla's Hindu Law, at page-249, having no footing, since neither of them have shown the said Narasingh as being the son of Banamali, with each of the original plaintiff and the defendant-appellant, claiming exclusive ownership over the suit property, as being the sole successor to late Banamali, on the strength of their respective pleadings" is wholly misconceived, erroneous and conveys no meaning at all? 2. Whether the conclusion of the Lower Appellate Court that the alleged adoption of defendant No. 2 being an ancient adoption is not required to be proved by the person, who claims such an adoption and on the contrary lies on the person who alleged such claim of adoption to be invalid, is sustainable? 2. The original plaintiff i.e., one Pramila @ Rohini Acharya, filed T.S. No. 9 of 1995, inter alia, praying for declaration of her right, title, interest and possession over the suit properties and for restraining defendant No. 1-Paramananda Acharya permanently from entering and interfering with the peaceful possession of the plaintiff over the suit schedule properties and further praying for a declaration that the defendant No. 1 - Paramananda Acharya is not the adopted son of the plaintiff and her husband. 3. The original plaintiffs case as made out in the plaint is that the entire suit schedule property belonged to the husband of the plaintiff, namely, Banamali Acharya, who died in the year, 1972 leaving the plaintiff as his sole legal heir. After the death of Banamali, the plaintiff became the absolute owner of all his movable and immovable properties. During the last settlement, the name of one Paramananda Acharya (defendant No. 1) was wrongly recorded in the R.O.R. in respect of the suit property showing him to be the son of Banamali Acharya. After the death of Banamali, the plaintiff became the absolute owner of all his movable and immovable properties. During the last settlement, the name of one Paramananda Acharya (defendant No. 1) was wrongly recorded in the R.O.R. in respect of the suit property showing him to be the son of Banamali Acharya. In fact, the defendant No. 1-Paramananda Acharya is neither the son of the plaintiff nor the son of her late husband. During the period i.e., on 2.8.1963, both Banamali Acharya and Rohini Acharya had a son, namely, Narasingh Acharya, who pre-deceased Banamali. Banamali has never executed any willnama on 2.8.1963 in favour of defendant No. 1 nor in favour of son of the defendant No. 1 and as such the said Will, if any, is a forged one. Rather the plaintiff has executed a Will on 28.7.2001 in favour of Gobinda Acharya for which during pendency of the suit on the death of the plaintiff, the said Gobinda was substituted in her place on 6.1 1.2001. It was further pleaded that Banamali has never executed any "deed of acknowledgement of adoption" on 29.1.1969 in favour of defendant No. 1. which is a fabricated one. 4. The defendant No. 1-Paramananda Acharya filed his written statement denying the plaint averments and inter alia. pleading that he is the brother's son of Banamali Acharya. He was adopted by Banamali and Rohini in the year 1947 in presence of all the kith and kin. Both Banamali and Rohini performed his thread ceremony in the year 1959 and his marriage in the year 1972. The defendant No. 1 performed the obsequies ceremony of Banamali and Rohini. He is in possession of the suit land by way of adverse possession. Banamali executed a 'Will' in his favour and in favour of his son Bijay Chandra on 2.8.1963. The 'Will' executed on 28.7.2001 by Rohini in favour of the present appellant- Gobinda. who was substituted in place of the original plaintiff, is not a genuine one. Hence, a prayer of dismissal of the suit was made. 5. Banamali executed a 'Will' in his favour and in favour of his son Bijay Chandra on 2.8.1963. The 'Will' executed on 28.7.2001 by Rohini in favour of the present appellant- Gobinda. who was substituted in place of the original plaintiff, is not a genuine one. Hence, a prayer of dismissal of the suit was made. 5. On perusal of the judgment of the Trial Court, it appears that the Trial Court framed as many as nine issues out of which the most important issue on which the rest of the issues are dependant, was Issue No. 7 i.e., "is the defendant No. 1 adopted son of Banamali Acharya and the deceased plaintiff-Rohini Acharya." It further appears from the judgment of the Trial Court that the Trial Court dealt with the evidence adduced before it applying the settled position of law with regard to a plea of adoption as well as ancient adoption. On referring to the case laws as well as the evidence adduced, the Trial Court concluded that the defendant No. 1 has failed to prove that he is the adopted son of Banamali Acharya and the original plaintiff-Rohini Acharya. 6. A bare perusal of the judgment of the Lower Appellate Court clearly shows non-application of judicial mind to the facts of the case, moreso the conclusion arrived at by the Lower Appellate Court appears to be conveying no meaning. For better appreciation, the portion of the judgment of the Lower Appellate Court where it has concluded that the defendant No. 1-Paramananda Acharya was the adopted son of Banamali and Rohini is quoted hereunder : "In considering the respective averments of the parties, I find the claim of the plaintiff, finding support from Article 224 of the 16th Edition of Mulla's Hindu Law, at page-249, having no footing since neither of them, have shown the said Narasingh, as being the son of Banamali, with each of the original plaintiff and defendant-appellant, claiming exclusive ownership over the suit property, as being the sole successor to late Banamali, on the strength of their respective pleadings. Further considering the admitted position of ancient adoption of defendant-appellant, through proving of giving and taking, any adoption, by late Banamali, from his natural parents; the same stood admitted with, much prior to the execution of the Will, in 1963 and only six years after the filing of the suit, by the original plaintiff, they having not been challenged with, by her, until her death, with many documents, disclosing the adoption of defendant- appellant by late Banamali and his possessing the properties of late Banamali, on the strength of the said adoption, for about 48 years, with the nature of the said properties, having been extracted out from the mouth of the defendant-appellant, in para-10 of his evidence, during cross-examination by the plaintiff, as being the entire suit lands, originally belonging to late Banamali, being his self-acquired property and the said lands, in all, having been purchased by late Banamali, in absence of any plea from the side of defendant-appellant, about his possessing the suit lands, for long time, on the strength of his adverse possession, and further, possessing the same as being the Class-II heir of Banamali, such possession, if any by defendant-appellant, for such a long period of about 40 years, along with the original plaintiff, until final publication of the settlement R.O.R. in the year 1990, could not have been in the capacity of his being a Class-II heir, then, in the capacity of his being the adopted son of Banamali and jointly standing recorded as such, both, in his name and in the name of the original plaintiff, for which, the said R.O.R. recording could not be set aside with, on proof of the admitted adoption of defendant-appellant by Banamali. In considering the above circumstances, therefore, on every score, the plaintiff-respondent has failed to put up his stand against the defendant-appellant. In considering which, I deemed it fit, to entertain the present appeal, as filed by the defendant-appellant, in his favour, in spite of the filing of the citations, from either side which are., considering under the above facts and circumstances of the case, as have been discussed above in this case, are not applicable to the facts and circumstances of this suit. Hence ordered." 7. Hence ordered." 7. It is needless to say that a bare reading of the above conclusion would go to show lack of fundamental concept of the law on the question as well as lack of ability to appreciate the evidence adduced by the parties in a civil proceeding which is required to be appreciated by applying preponderance of probability. Law on the question of adoption is well settled. It is a settled position that one who takes the plea of adoption is required to prove the same free from all suspicion of fraud and so consistent and probable as to give no occasion for doubting its truth, though of course, the factum of adoption must be proved in the same way as any other fact. It is the normal rule that one who seeks to defect the natural line of succession to property by alleging adoption must discharge that burden. 8. It is no doubt true that when there is a lapse of very long period between the adoption and it being questioned, absence of evidence to prove such fact must be favourably entertained and the Court can look into the materials brought before it showing the conduct of the parties upon the footing of which the Court can presume an adoption to be a valid one. If such evidence is led, onus will shift to the person to challenge its validity. 9. In the instant case, it appears from the judgment of the Trial Court that it has taken into consideration all the documentary evidence as well as the oral evidence adduced by the parties and has come to a finding of fact that there is nothing to show that the defendant No. 1- Paramanada Acharya was adopted by Banamali and the original plaintiff-Rohini. The Lower Appellate Court has not dealt with the reasons as- signed by the Trial Court in coming to such a finding and rather in a cryptic manner has dealt with such finding while holding that those findings are not sustainable and reversing the judgment and decree passed by the Trial Court. I, therefore, find that the judgment of the Lower Appellate is not sustainable in the eye of law both on the ground of absence of assigning reasons for such conclusion as well as on the ground of non-application of judicial mind and coming to a conclusion rendering no meaning. I, therefore, find that the judgment of the Lower Appellate is not sustainable in the eye of law both on the ground of absence of assigning reasons for such conclusion as well as on the ground of non-application of judicial mind and coming to a conclusion rendering no meaning. The second appeal, therefore, stands allowed. The judgment and decree passed by the Lower Appellate Court stands set aside while restoring the judgment and decree passed by the Trial Court. In the circumstances, however, there shall be no order as to cost. Final Result : Allowed