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2015 DIGILAW 634 (ORI)

Nayana Bhuyan v. Narayan Bhuyan @ Dalei

2015-11-18

D.DASH

body2015
JUDGMENT This appeal has been filed challenging the judgment and decree passed by the learned Ad hoc Addl. District Judge (FTC-II), Cuttack in R.F.A.No.132 of 2005 for permanent injunction restraining the defendant-appellant from interfering with the peaceful possession over the suit land as described in Schedule-A of the plaintiff. The suit having been dismissed, as unsuccessful plaintiff, Brahmananda had preferred the appeal under Section 96 of the Code of Civil Procedure. During pendency of the appeal, said Brahmananda having died, his legal representatives being substituted pursued the appeal, and they are now appellants. So, the unsuccessful plaintiffs now challenge the judgment and decree in the first appeal confirming those of the trial Court. 2.For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to as they have been arraigned in the trial Court. 3.The case of the plaintiff is one Kasinath Bhoi had two sons. Brahmananda, the original plaintiff is one whereas Paramananda is the other. It is stated that the during lifetime of the Kasinath, he gave away his younger son Paramananda in adoption to one Madhu Dalei of the said village and said adoption is said to have taken place prior to the year 1958. It is further stated that the adoption had taken place as per the rites and customs of the parties and after said adoption, Paramananda lived with adoptive father who brought him up, gave him education and got his marriage solemnized. Thus, it is stated that Paramananda was all along being treated and recognized in every quarter as the son Madhu Dalei. He has been shown as such in all the official records. A deed acknowledging the said adoption is said to have been executed by that Madhu Dalei on 05.08l.1959. Further case of the plaintiff is that after Paramananda’s adoption, he lost all his rights over the property of his natural father Kashinath and all his ties with the family of the natural father got completely severed. Subsequently, on 23.04.1984 Paramananda’s son and widow have been recorded as tenants in respect of suit property along with the plaintiff. Further case of the plaintiff is that after Paramananda’s adoption, he lost all his rights over the property of his natural father Kashinath and all his ties with the family of the natural father got completely severed. Subsequently, on 23.04.1984 Paramananda’s son and widow have been recorded as tenants in respect of suit property along with the plaintiff. Thus it is stated that the said property having been owned by Kashinath and he having died, it ought to have been exclusively recorded in the name of the plaintiff, as Paramananda had no manner of right, title and interest over the same and so also his son, the defendant has nothing to do with it. It is stated that during consolidation operation, no such claim was advanced by the defendant. However, on 01.02.2003 for the first time without any rhyme and reason, he openly gave out that he would forcibly occupy the suit land by dispossessing the plaintiff therefrom. Therefore, the plaintiff filed the suit. The defendant while traversing the written statement pleaded inter alia that Kashinath was the father of the plaintiff and Paramananda. Paramananda died about 20 years back leaving behind his widow and sons. Defendant is the one of the sons of Paramananda.. He denied the plea taken by the plaintiff as regards adoption of Paramananda by Madhu Dalei prior to the year 1958.They also denied any such execution of document on 3.8.1963, acknowledging the adoption. Rather it is stated that no such deed had come into being at any time and even if such a document is seen, the same is in valid and had not at all been acted upon. Thus, it is stated that the suit land when belonged to Kashinath, on his death it has been rightly recorded in the name of all. It is also stated that Paramananda had never lost his right over the suit land. It has also been averred that the plaintiff had challenged that entry in the record of right by carrying an appeal before the Deputy Director, Consolidation and that has been dismissed on 19.08.1981. So, as such the entries in the record of right prepared during consolidation operation is said to have attained its finality for all purpose and thus not liable to be called in question. 4.On such rival pleadings, the trial Court framed as many as four issues. So, as such the entries in the record of right prepared during consolidation operation is said to have attained its finality for all purpose and thus not liable to be called in question. 4.On such rival pleadings, the trial Court framed as many as four issues. The most important issue that has been taken up at first for decision is that of the claim of adoption of Paramananda as advanced by the plaintiff and denied by the adversary. It may be stated here that though the suit is for injunction simplicitor and its scope is limited, the trial Court in view of the factual controversy between the parties appears to have felt it the absolute necessity for decision on that issue. The approach made by the trial Court as well as the lower appellate Court appear to be just and proper in the eye of law because of the fact that in case, the adoption as pleaded by the plaintiff is held in the negative then the suit itself is ot maintainable against the co-sharers, as there remains no pleading with regard to ouster. 5.The trial Court thus has rightly gone to take up the issue no.3 concerning the adoption of Paramananda seriously under challenge for decision. Upon examination of the evidence and their evaluation relying upon the ratios emerging out of some of the decisions of this Court as well as Apex Court, it has held that the plaintiff has failed to prove by leading clear, cogent and acceptable evidence that Paramananda was actually adopted by Madhu Dalei prior to the year 1958.Thereafter, the next issue concerning the entitlement of the plaintiff to the relief of permanent injunction has been decided against the plaintiff on the ground that the parties being on sharers, such relief of injunction is not available to be granted in favour of the plaintiff. Thus, at the ultimatum, the suit has been dismissed. In appeal, the lower appellate Court on independent analysis of evidence in the touchstone of the rival pleadings having arrived at a finding that Paramananda was not adopted by Madhu Dalei has concurred with the finding of the trial Court. Consequently, the finding on the next issue as stated above has also been concurred in view of the settled position of law. 6.The appeal has been admitted on the following substantial questions of law. Consequently, the finding on the next issue as stated above has also been concurred in view of the settled position of law. 6.The appeal has been admitted on the following substantial questions of law. (a)Whether the Courts below have erred by holding the factum of adoption of Paramananda by the Madhu Dalei to have not been established by preponderance of probability through clear, cogent and acceptable evidence let in by the plaintiff ? (b)Whether lower appellate Court is correct in saying that under Section 12 (b) (c) of the Hindu Adoption and Maintenance Act; (HAMA) that adoptive child shall continue with the ownership over the property which vested in him before such adoption and if that is contrary to the ratio laid down in case of Sawan Ram v. Mst. Kalawanti; AIR 1967 SC 1761 and Smt. Sitabai v.Ramachandra; AIR 1970 SC 343 and in case of Madhav Sahu and another Vrs. Hare Krushna Sahu; AIR 1978 Orissa 48. 7.Learned counsel for the appellant submits that the Courts below have committed grave error by recording the finding against the factum of adoption of Paramananda by Madhu Dalei despite of the overwhelming evidence both oral and documentary, on record. It is further submitted that when Paramananda’s adoption is accepted, he has no claim whatsoever so far as the property of his natural father is concerned. Therefore, the plaintiff being the absolute owner in possession of the suit property, the suit for injunction as brought for ought to have been decreed. 8.Learned counsel for the respondent having entered appearance submits all in favour of the findings that those are un-assailable as there remains no evidence of proof of giving and taking ceremony relating to the so called adoption of Pramananda by Madhu Dalei and no such clinching evidence also appears as regards Paramananda’s recognition in the society as such or that he was being treated by Madhu Dalei and his family members in the said status as the son of Madhu. He also submits that the appellants has failed to lead any evidence proving those required facts satisfying the requirement of Section 50 of the Indian Evidence Act for being admissible. Mere saying that Paramananda was treated by Madhu and recognized as Madhu’s son does suffice no purpose. He also submits that the appellants has failed to lead any evidence proving those required facts satisfying the requirement of Section 50 of the Indian Evidence Act for being admissible. Mere saying that Paramananda was treated by Madhu and recognized as Madhu’s son does suffice no purpose. Therefore, he contends that said finding when does not suffer from the vice of perversity and there arises remains no substantial question of law on that score. It is his next contention that the lower appellate Court in the absence of any evidence that the so called adoption of Paramananda had taken place prior to the death of his natural father Kashinath having rightly applied the ratio of the decisions as referred to above and concluded that properties already vested with Paramananda, even in case of acceptance of factum of adoption, he cannot be divested of the same because of the intervening adoption .So, on this score, according to him there also surfaces no substantial question of law as pointed out by the learned counsel for the appellant. He vehemently contended referring to the certified copies of the sale-deeds that when from out of suit properties of Brahmananda, there has already been sale stating it to be from out of his half prior to the suit and thereafter the rest by these appellants, those having not been placed before the Court, the suit is bound to fail for the suppression. He therefore urges for dismissal of the appeal with exemplary cost as the litigation according to him is vexatious one directed to cause undue hardship and harassment to the respondent for no reason whatsoever with an aim to ultimately see that the defendant is subjected to surrender his legal right because of the illegal move. 9.In order address the rival submission of the learned counsel for the parties, it is essential to find out first as to whether the plaintiff has been able to prove the factum of adoption of Paramananda by Madhu Daai and thus to judge the sustainability of the finding of the Courts below rendered against the said adoption. At the cost of the repetition, it is stated that the plaintiff alleges the adoption of Paramananda by Madhu Dalai was prior to the year 1958. It has also been stated that said adoption was acknowledged by a deed dated 05.08.1959.This was the subject matter of dispute before the Consolidation Authority. At the cost of the repetition, it is stated that the plaintiff alleges the adoption of Paramananda by Madhu Dalai was prior to the year 1958. It has also been stated that said adoption was acknowledged by a deed dated 05.08.1959.This was the subject matter of dispute before the Consolidation Authority. Finally on appeal, the Deputy Director of Consolidation had decided the matter by order under Ext.5. In the said order it finds mention that the deed dated 05.08.1959 was produced by the plaintiff and therein he found that Kasi, the natural father of Paramananda, was not alive at the time of said execution of the deed. The plaintiff very much admits in his evidence to be in possession of the said deed of acknowledgment of adoption. But for the reasons best known to him, the deed has not seen the light of the day during the suit, during the appeal or even here till now. In view of the order of the Deputy Director, Consolidation under Ext. 5 when such conduct of non-production of the document is viewed, grave suspicion arises in the mind as regards veracity of the case of plaintiff,. Furthermore, the vital document in his custody which would have thrown definite light, thus has been withheld from being produced for perusal, so as to be given its due weightage as available in the law. In that situation, the inevitable conclusion stands, that said document if would have been produced, it would have run adverse to the case of the plaintiff, and instead of providing support to his case, it would have demolished the foundation as laid and might have favoured Paramananda. Another interesting feature remains here that this plaintiff has withheld himself from being examined as a witness in support of his case. All these lead to draw adverse inferences to the plaintiff’s case. The lower appellate Court in the matter has taken the following view. “To strengthen my view, I also find that the plaintiff has restrained himself to be examined himself (sic) lest he may face cross-examination) regarding death of Kashi as in the said adoption deed, which has been dealt in the order Ext.5, passed by the Deputy Director of Consolidation. Thus I have got nothing but to hold that Kashi had not given Paramananda to Madhu Dalei in adoption. Thus I have got nothing but to hold that Kashi had not given Paramananda to Madhu Dalei in adoption. In view of the discussions made above, this Court finds no such justifiable reason to pick up any fault with the view of the lower appellate Court. The lower appellate Court has gone to examine the documents filed by the parties. Even for the sake of argument, in case of adoption, it has not been in a position to say if such adoption was prior to the year 1956 or after the year 1956.The plaintiff having pleaded that it was prior to the year 1958, even if that is accepted for the moment, that itself does not keep aside the provision of H.A.M.A. from their application unless it is established by the plaintiff that the adoption was prior to coming into force of the H.A.M.A. The lower appellate Court has also found that absolutely no evidence has been laid establishing the ingredients of a valid adoption when the document in that connection has been suppressed. In such state of affairs in the evidence, this Court finds no perversity in appreciation of the same by the Courts below in finally negating the case of adoption of Paramananda by Madhu Dalai as projected by the plaintiff. Furthermore, in this case earlier in the proceeding before the consolidation authorities, the matter has been finally concluded when Deputy Director, Consolidation on appeal has confirmed the order of the Consolidation Officer. So, rightly it has been held that the civil Court has no jurisdiction to re-adjudicate the matter as the decision of the consolidation authorities on that score stands final and thus operates as resjudicata. One more important fact of the case appears to have been lost sight of by the Courts below that is the document exhibited from the side of the defendant, Ext. B which is the certified copy of the Registered Sale Deed dated 23.12.2002 executed by the plaintiff in favour of one Dipti Ranjan Bhuyan. It has not been considered in its proper prospective. This deed is not denied to have been executed by the plaintiff prior to the suit. It has been clearly indicated in the said deed that the land stands recorded in the name of the plaintiff and Narayan Bhuyan. It has not been considered in its proper prospective. This deed is not denied to have been executed by the plaintiff prior to the suit. It has been clearly indicated in the said deed that the land stands recorded in the name of the plaintiff and Narayan Bhuyan. The plaintiff in clear term has admitted there in that both are the owners and in possession of the land, and the land sold had been allotted in his share in an amicable partition between the two and he thus was in separate possession. There the sale is to the extent of land Ac.0.15 decimals out of Ac.0.30 decimals under plot no.2294 and in the description of the said sold land, to the immediate west the land of defendant has been stated to be there which is an admission of plaintiff as regards defendant’s possession of his share. Such important admissions of the plaintiff wholly run against his case and rather show the falsity of his claim. This document was executed prior to the suit, but had been suppressed by the plaintiff and instead such land has also been made the subject matter of the suit. This amounts to playing fraud upon the Court with bid to harass the defendant taking a chance. Moreover, during pendency of this appeal on 08.06.2015, the present appellants have also in a similar fashion stating the same thing what was stated in Ext. B and stating further their necessity have sold land saying that it was allotted in the share of their father in an amicable partition. The above documents when being considered on their proper prospective are enough to non-suit the plaintiff. The discussion and reasons as above provide necessary answers to the substantial questions of law for disposal of this appeal against the appellant holding the appeal to be devoid of merit. 11.In the result the appeal stands dismissed.In the facts and circumstances of the case with cost throughout. Appeal dismissed.