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2015 DIGILAW 543 (ORI)

Sritela Mahakud v. Okil Behera

2015-09-15

D.DASH

body2015
JUDGMENT This appeal has been filed challenging the judgment and decree passed by the learned Sub-Ordinate Judge, Bargarh in Title Appeal No. 03 of 1990. The respondent no. 1 as the plaintiff had filed the suit for declaration that he is the adopted son of late Bansidhar Behera and Gouri Behera and that the defendant-appellant is not the daughter of said Bansidhar and Gouri. The suit having been dismissed, the plaintiff/respondent had carried an appeal. The appellate Court has reversed the finding of the trial Court and finally held the plaintiff/ respondent to be the adopted son of Bansidhar and Gouri. However, the finding of the trial Court that the defendant / appellant is the daughter of Bansidhar and Gouri has been affirmed. Therefore, now unsuccessful defendant has filed this appeal. 2. For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the Court below. 3. The case of the plaintiff is that, he is the natural born son of one Mrutyunjaya Behera. Bansidhar Behera is the cousin brother of Mrutyunjaya and Gouri was his wife. Plaintiff being the second son of Mrutyunjaya was born in the year 1973 in the month of ‘Chaitra’ on a Monday. Bansidhar and his wife Gouri was issueless. So, there came the request from their side to Mrutyunjaya and his wife Sita to give the plaintiff in adoption to them. The proposal was accepted and accordingly on the 21st day of birth of the plaintiff, in the month of Baisakha on the Purnima which was eventually again a Monday, the giving and taking ceremony took place in presence of relatives, caste men, friends etc. So, it is said that since then the plaintiff remained with Bansidhar and his wife Gouri as their son being treated all along as such. He stayed under the same roof with Bansi and his wife, prosecuted his studies and also cultivated lands of Bansidhar. Adoptive parents Bansidhar and Gouri died in the year 1987. Therefore, it is stated that the defendant having no relationship with Bansidhar, suddenly jumped into the fray by advancing a false claim to grab the landed property of Bansidhar falsely advancing a claim unto herself as his daughter. Adoptive parents Bansidhar and Gouri died in the year 1987. Therefore, it is stated that the defendant having no relationship with Bansidhar, suddenly jumped into the fray by advancing a false claim to grab the landed property of Bansidhar falsely advancing a claim unto herself as his daughter. She filed a mutation case for getting land recorded in her name which came as the first threat to the plaintiff. Subsequently, the threat came when the defendant denied the status of the plaintiff in the said mutation case and projected her status as the daughter of Bansidhar and Gouri as the basis for such recording of the land. So, the plaintiff had to file the suit. The defendant while traversing the plaint averments has gone to deny the factum of adoption of plaintiff by Bansidhar and Gouri with due observance of giving and taking ceremony as pleaded. It is asserted that the plaintiff being the son of Mrutyunjaya was all along residing in his house possessing the land of his father alongwith his mother and brother. The landed property of Mrutyunjaya are said to have been duly recorded in the name of the plaintiff and others in the consolidation operation. It is said that the Bansidhar was not an issueless, he was having a daughter i.e., the defendant. It is further case of the defendant that after the death of Bansidhar she being the daughter, succeeded to the property of the Bansidhar as she is sole legal heir and possessed the land belonging to Bansidhar and as such and is paying rent for the same. In view of all these, she prayed to non-suit the plaintiff. 4. The trial Court on such rival pleadings, framed four issues and the crucial issues are issue no. 2 and 3 relating to the claim of the status of the plaintiff as adopted son and that of the defendants as the daughter of Bansidhar and Gouri. The trial Court having taken issue no. 2 first for decision and that too very rightly has gone to analyze the evidence on record, placing the burden of proof upon the plaintiff to establish the factum of adoption by leading clear, cogent and acceptable evidence. Upon analysis of evidence and their evaluation, testing those with the attending circumstances, it has rendered the finding against the plaintiff holding him not to be the adopted son of Bansidhar and Gouri. Upon analysis of evidence and their evaluation, testing those with the attending circumstances, it has rendered the finding against the plaintiff holding him not to be the adopted son of Bansidhar and Gouri. As regards the other issue i.e., issue no. 3 concerning the status of the defendant as the daughter of Bansidhar and Gouri which is denied by the plaintiff, taking into account the evidence on record, upon their assessment finding was rendered in favour of the defendant holding to be the daughter of Bansidhar and Gouri. With such findings when the suit stood dismissed, the unsuccessful plaintiff being aggrieved by such findings leading to the dismissal of the suit as ordered by the trial Court carried an appeal. The appellate Court has reversed the finding on issue no. 2, holding the plaintiff to be the adopted son of Bansidhar and Gouri which had been held in the negative by the trial Court. However, finding on issue no. 3 has been affirmed. At this stage, a typographical error noticed being important one is pointed out to allay confusion. In fact, the lower appellate Court has concurred with the finding on the issue no. 3 and has reversed the finding of the trial Court on issue no.2. However, at the end the figure has been wrongly typed and appropriately in place of issue no. 2 it should have been issue no. 3, similarly in place issue no. 3 it should have been issue no. 2. This Court, therefore, finding, the error wholly to be an inadvertent one going unnoticed reads it taking it to have been so corrected. 5. The appeal has been admitted on the following substantial question of law:- “Whether the finding of the lower appellate Court to the effect that the plaintiff is the adopted son of late Bansidhar Behera is illegal and vitiated in the law in as much as the lower appellate Court has reversed the finding of the trial Court without cogent reasons and without discussing the reasons given by the trial Court? 6. Learned counsel for the appellant submits that the reversal of the finding of issue no. 6. Learned counsel for the appellant submits that the reversal of the finding of issue no. 2 by the lower appellate Court is the outcome of unjust and improper appreciation of evidence on record without deep scrutiny and forgetting the position of law that in the case, the burden of proof is lying upon the plaintiff to establish such factum of adoption by leading direct evidence as regards giving and taking ceremony and proving other circumstances. So his submission is that such reversal finding of the lower appellate Court is perverse and is liable to be set at naught. Learned counsel for the respondent supports the findings of the lower appellate Court. It is worthwhile to mention here that in this second appeal, the plaintiff has neither filed any cross-appeal challenging the concurrent finding of fact as rendered by the Courts below on issue no. 3 as regards the status of the defendant as the daughter of Bansidhar and Gouri, nor in this second appeal any such cross-objection has been filed and during hearing also it is not refuted. It is the submission of the learned counsel for the respondent that glaring mistakes committed by the trial Court in appreciating the evidence as regards factum of adoption of the plaintiff by Bansidhar and Gouri having been rightly picked up by the lower appellate Court and rectified in the ultimatum rendering the finding on that score in favour of the plaintiff. According to him, the appreciation of evidence by the trial Court was not proper and in accordance with law and therefore he contends finally that the lower appellate Court has rightly set aside the same by independently answering the issue no. 2. 7. In order to answer the substantial question of law by addressing the rival submission at the cost of repeatation, let some admitted facts be stated. Plaintiff is the natural born son of Mrutyunjaya and Sita, Bansidhar is the cousin brother of Mrutyunjaya. So they are not strangers to each other and rather closely known having family relationship. So far as this case is concerned in view of challenge, the settled position of law stands that the burden of proof to establish the factum of adoption of plaintiff by Bansidhar and Gouri heavily lies upon the plaintiff to discharge and for the same he cannot take advantage of the weakness of the defence. So far as this case is concerned in view of challenge, the settled position of law stands that the burden of proof to establish the factum of adoption of plaintiff by Bansidhar and Gouri heavily lies upon the plaintiff to discharge and for the same he cannot take advantage of the weakness of the defence. So, the examination of evidence has to be in that light, first in going as to whether such burden of proof stands discharged or not. It is the case of the plaintiff that he was born in the month of Chaitra on a Monday in the year 1974 and the adoption taken place on 21st day of his birth. It has been specifically pleaded that date of birth fell on a Monday and the date of adoption i.e., 21st day of birth was also a Monday that too it was the ‘Baisakha Purnima’ day. It is stated that the giving and taking ceremony took place when the natural parents of the plaintiff and his adoptive parents were present, so also witnessed by their relatives and neighbours etc. It has been the specific evidence that the natural parents of the plaintiff placed the plaintiff on the lap of the adoptive parents namely, Bansidhar and Gouri. First of all discrepancy comes that the child being born on Monday, the 21st day of birth cannot be a Monday. Unfortunately that has been very specifically pleaded in the plaint. This no doubt pushes the factum of adoption under cloud as in such cases the approach is strict and scrutiny is always deeper. There was no necessity to make as a specific pleading furnishing the week day when the plaintiff was born in the month of ‘Chaitra’ and then again, the 21st day of birth which also cannot fall on Baisakha Purnima, this is another serious improbability. It can be accepted that one mistake is inadvertent but it is hard to view that both the above are of such category so as to be lightly brushed aside. So, from the very beginning the day of adoption as pleaded instead of being proved is found to be doubtful being bristled with improbabilities. The lower appellate Court as it reveals on a plain reading of paragraph – 9 of the judgment which is relevant for the purpose clearly appears to have not proceeded to examine the matter independently in appreciating the evidence. The lower appellate Court as it reveals on a plain reading of paragraph – 9 of the judgment which is relevant for the purpose clearly appears to have not proceeded to examine the matter independently in appreciating the evidence. It has gone to take up the cue from the trial Court’s judgment and examine the suitability of the reasons to it and the above noted improbabilities have been ignored on the ground of plaintiff being minor having filed through the next friend. In fact that is in my considered view is no reason at all so far as this suit is concerned. The owner if would have complained later like that it would have been of some concern. The Court having appointed the natural brother as the guardian for the minor in the suit even in presence of natural mother cannot give the relaxation of the like nature when the other side of the coin is also required to be equally viewed. Such discrepancy ought not to have been taken to be having no adverse affect on the factum of adoption. At no point of time, the lower appellate Court on its own has gone to discuss the oral and documentary evidence let in by the plaintiff in holding if the factum of adoption has been established by clear, cogent and acceptable evidence. The trial Court’s exercise appears to be really a strenuous and arduous one. Let’s first of all see the documentary evidence Ext. 3 which is the counter foil of transfer certificate of the school and Ext. 4 is the provisional certificate for memorandum of mark issued by the Board of Secondary Education. It is true that in these documents the father of the name of the plaintiff as Bansidhar finds mention. However, these documents by themselves are not conclusive proof of the factum of adoption. As per the settled law, those may go to corroborate the evidence otherwise available on record in favour of adoption. Plaintiff has examined five witnesses including the next friend as P.W. 2 who is none other than the elder brother of the plaintiff. Natural mother of the plaintiff has come to the witness box as P.W. 3, whereas the P.W. 4 and P.W. 5 are two villagers. Plaintiff has examined five witnesses including the next friend as P.W. 2 who is none other than the elder brother of the plaintiff. Natural mother of the plaintiff has come to the witness box as P.W. 3, whereas the P.W. 4 and P.W. 5 are two villagers. Here is a case, where the direct evidence on the factum of adoption has been let in and the adoption is said to have taken place around 14 years prior to the suit. An important feature standing against the adoption that is the record of right concerning the land of Mrutyunjaya, the natural father of the plaintiff where the name of the present plaintiff very well finds place along with others as one of its owner. This shows nonseverance of his tie with the family of his natural father and his properties. The trial Court has rightly taken note of the fact that the evidence of P.W. 2 and 3 in the facts and circumstances of the case are required to be very cautiously examined and corroboration has to be sought for in order to act upon the same. Besides the oral evidence of P.W. 2 and 3, the evidence of P.W. 4 and 5 remain. These two witnesses are not related to the parties. P.W. 4 claims to be a caste man. His evidence is that he being the Ward Member then, had gone to attend the giving and taking ceremony being called by Bansidhar where others have also attended the said function. But it is next seen that when it is stated by P.W. 4 that talk for adoption took place on that very day, other witness P.W. 5 states differently that it was after six days of birth that the talk began. P.W. 5’s evidence is more interesting. It is seen that he has gone to depose that none of the relatives of the Bansidhar’s family were invited to the function and these P.W. 4 and 5 were the only two invitees. This is highly improbable and leads one to draw some inference in the negative at least to the extent of doubting the version of this witness as not being a witness of truth. He further submits to have never informed about said adoption to his fellow villagers nor to have heard about the same from any one. This is highly improbable and leads one to draw some inference in the negative at least to the extent of doubting the version of this witness as not being a witness of truth. He further submits to have never informed about said adoption to his fellow villagers nor to have heard about the same from any one. It runs against normal human conduct when the silence is not being explained away in any manner. The trial Court having made a vivid discussion of evidence has discarded the same holding the witnesses to be not credit-worthy and their evidence to be unworthy of credence. The documentary evidence alone are not enough. Giving further stress upon the statement of one Balaram Behera in OLR Case No. 1526 of 1977 against the adoption and taking that as a circumstance, the trial Court appears to have rightly rendered the finding against the plaintiff. The lower appellate Court as it has already been said having not gone for an independent analysis of evidence and their evaluation by simply questioning the reasons assigned by the trial Court in not accepting the evidence as regards the adoption has ultimately differed with the finding. In that way, it has failed to discharge its duty as the final Court of fact. Thus, in my considered view, the finding of the lower appellate Court, reversing the finding of the trial Court on issue no.2 suffers from the vice of perversity and therefore it is unsustainable in the eye of law and as such it liable to be set aside. 9. The other finding of fact that the defendant is the daughter of Bansidhar is not questioned as already stated. Upon going through the finding of the trial Court as well as lower appellate Court on that issue no. 3, this Court also finds that those are based on just and proper appreciation of evidence and no other material evidence has been left out of the arena of consideration that if the same would have been so taken, the finding might have been otherwise. For the aforesaid discussion and reasons, the finding of the lower appellate Court on issue no. 2 as recorded holding the plaintiff to be the adopted son of Bansidhar and Gouri is liable to be set aside. The finding on the other issue no. 3 that the defendant is the daughter of Bansidhar and Gouri stands affirmed. For the aforesaid discussion and reasons, the finding of the lower appellate Court on issue no. 2 as recorded holding the plaintiff to be the adopted son of Bansidhar and Gouri is liable to be set aside. The finding on the other issue no. 3 that the defendant is the daughter of Bansidhar and Gouri stands affirmed. 9. Resultantly, the appeal stands allowed to the extend as aforesaid and in the facts and circumstances without cost throughout. Appeal allowed to the extent indicated.