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2016 DIGILAW 273 (ORI)

Trilochana Kuanr v. Bila Bhoi

2016-04-07

D.DASH

body2016
JUDGMENT : 1. This appeal has been filed against the judgment and decree passed by the learned Addl. District Judge, Sonepur in Title Appeal No. 9 of 2001 confirming the judgment and decree passed by the learned Civil Judge (Sr.Divn.), Sonepur in T.S. No. 53 of 1993. The respondents as the plaintiffs had filed the above noted suit for declaration that the defendant no. 1 is not the adopted son of Daman Kuanr and Kansala Kuanr and also for declaration that they are the successors of defendant no. 2 with other reliefs. The suit having been decreed granting the reliefs as prayed for to the plaintiffs-respondents, the present appellant as the unsuccessful defendant no.1 had filed the appeal under Section 96 of the Code of Civil Procedure which was numbered as Title Appeal No. 9 of 2001 in the court of learned Addl. District Judge, Sonepur. Said appeal having also been dismissed, the present second appeal under Section 100 of the Code of Civil Procedure has been filed. 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 trial court. 3. The plaintiffs case is that the parties are Hindus and Kandha by caste belonging to Scheduled Tribe and as such are not governed by the provision of Hindu Succession Act as also Hindu Adoption and Maintenance Act. It is stated that they follow the custom and other rites prevalent in their caste and community. It is stated that one Jage is the common ancestor of the parties. He died leaving two sons namely Suban and Daman. Suban had three wives. Out of them Duti being alive was original defendant no. 2 who has died during the suit. Daman died leaving behind his widow and a daughter. Both of whom are dead. The plaintiff nos. 1 and 2 are Daman’s daughter’s daughter and son respectively. It is stated that the suit land originally belonged to Suban and Daman and it stood recorded as such their names. After the death of Suban and Daman both the branches were and are in actual possession of the suit land till the death of Duti. The plaintiff nos. 1 and 2 are Daman’s daughter’s daughter and son respectively. It is stated that the suit land originally belonged to Suban and Daman and it stood recorded as such their names. After the death of Suban and Daman both the branches were and are in actual possession of the suit land till the death of Duti. On the death of Duti, the plaintiffs being the next heirs became the absolute owners and as such they possessed the suit land under Khata Nos.31, 73 and 74 as per the record of 4th settlement. The suit land under Khata Nos. 26, 27, 29, 30, 78 and 79/16 as per the record of 4th settlement was the property of Daman alone. So, these plaintiffs claim to have succeeded to the same and are in actual possession. The suit land under Khata No. 78 and 79/16 are said to be the Jankiri land granted to Daman Kuanr as he was performing the worship of the village Deity. Later on Daman was conferred with the rayati status for half of the land. It is claimed by the plaintiffs that after the death of Daman, they are worshiping the Deity and rendering the service. The defendant no. 1 is said to be a stranger to the family. It is said that during his childhood days, he came to the village and was residing with his natural parents in a place with the permission of the ancestors of the plaintiffs. He is said to be the only son of his natural parents. It is stated that they managed to record some lands in a mutation proceeding falsely advancing a claim that the defendant is the adopted son of Daman. This move is said to be only to grab the property. So, the suit has been filed. The defendant no. 1 contested the suit by filing the written statement. He described a different genealogy. According to him, one Palau had son a Kiaban who had two sons namely Chaitanya and Ganesh. Ganesh is said to be issueless and dead. Chaitanya is to have been survived by three sons namely, Trilochan, Nilambar and Kepa. According to him, Jage had two sons namely, Suban and Daman. Suban had three wives. Daman died at last during the suit. Daman had his widow Kansala and a daughter namely, Rukmani. Plaintiffs are admitted to be Daman’s daughter’s son and daughter. Chaitanya is to have been survived by three sons namely, Trilochan, Nilambar and Kepa. According to him, Jage had two sons namely, Suban and Daman. Suban had three wives. Daman died at last during the suit. Daman had his widow Kansala and a daughter namely, Rukmani. Plaintiffs are admitted to be Daman’s daughter’s son and daughter. Here he claims to have been adopted by Daman and Kansala and as such being their adopted son is the brother of Daman’s daughter Rukmani. It is stated that he being the son of Daman and Kansala succeeded to the suit land. Possession of the plaintiffs over any portion of the suit land is denied. It is his further case that in the abolition proceeding the Jhankir land was settled in his favour as he is performing the seva puja Deity. Thus, he claims his absolute interest over the suit land. 4. The trial court on such rival pleadings framed ten issues. Going to answer issue no. 1 first, as regards the status of defendant no. 1 as claimed by him to be the adopted son of Daman and Kansala which is denied by the plaintiffs, upon examination of evidence and their assessment has rendered the finding against the defendant no. 1 and in favour of the plaintiffs holding defendant no. 1 as not the adopted son of Daman and Kansala. This finding has practically led the trial court to decree the suit. As regards issue no. 6 concerning the settlement Jankiri land, the right of the plaintiffs over the same has also been found out. 5. The lower appellate court having been moved, it has framed necessary point for determination. Going to address the issue as regards the status of defendant no. 1 and examine the correctness of the finding of the trial court as it appears, independent analysis of evidence has been made at its level and upon their evaluation, the lower appellate court has concurred with the finding of the trial court on said issue as also other issues. Thus the trial court’s findings have been given the seal of approval as also the ultimate result in the suit. 6. Thus the trial court’s findings have been given the seal of approval as also the ultimate result in the suit. 6. The appeal has been admitted on the following substantial questions of law:- “A. Whether in view of the fact that parties are ‘Kandhas’ by caste, their custom being of paramount importance, the adoption of Defendant-Appellant by Daman and Kansala as acknowledged in Ext.A is legal and valid? B. Whether the parties being Kandhas by caste being governed by Mitakhara School of traditional Hindu Law, the Defendant-appellant would be the successor of Daman being his adopted son? C. Whether in view of Ext.J, the suit is barred by the provisions of law contained in Orissa Office of Village Police (Abolition) Act, 1960 and is liable to be dismissed in limine?” D. When it is admitted case of both the parties that they belong to S.T. and governed by their own caste and custom, whether the learned courts below are correct and justified in applying the principles of Hindu Law so far it relates to adoption of defendant no.1?” 7. Learned counsel for the appellant submits that the courts below without proper appreciation of evidence and without giving due important to Ext.A, the deed of acknowledge of adoption has gone to hold the defendant no. 1 as not the adopted son of Daman and Kanasala. In this connection, he has taken up the pain of placing the evidence of the witnesses examined on behalf of the defendant no.1 in great detail. He next contends that the settlement of land having been made in favour of defendant no.1, the same was not open to challenge in the suit as the plaintiff-respondents are bound by it. 8. Learned counsel for the respondents in supporting the findings of the trial court on the issue of adoption recorded against the defendant no.1 has further submitted that when the evidence on proper analysis has been found to be discrepant to prove the factum of adoption through the required ceremonies and said evidence on adoption to prove the performance of required ceremony are insufficient, the finding on that score is unassailable. It is further contended that the rayati status of Jhankari land being conferred upon Daman and later recording having been made on the basis of claim of defendant no. It is further contended that the rayati status of Jhankari land being conferred upon Daman and later recording having been made on the basis of claim of defendant no. 1 that he is the adopted son which has been found to the contrary in the suit, the said recording can no more enure to the benefit of defendant no.1 and he can never clothe him with the absolute right over the said land. Therefore, according to him, the courts below have rightly negated the claim of defendant no. 1 and thus have decreed the suit. 9. In going to address the rival submission and simultaneously answer the substantial questions of law first of all the pleading of the defendant no. 1 in the written statement is required to be kept in view. The settled position of law is that when the factum of adoption is claimed by one and is denied by the adversary, the burden of proof rests on the person who asserts said adoption. It has been pleaded in para-2 of the additional written statement that the parties are Hindus and being Kandha by caste are the members of Scheduled Tribe, governed by their own custom and they follow the rites as prevailant in their caste and community. But nowhere in the written statement it has been pleaded even briefly as to what are the customs which are followed for the purpose of adoption in their caste and community. It has simply been next pleaded that Daman had no son and so the Daman and his wife Kansala wanted to adopt a son and for the purpose they discussed with Nilamber. At that time, this defendant no. 1 was not even born. They approached Nilamber to give his child in adoption if would be male one. So after birth of Trilochan, it was so informed to Daman and Kansala and thus as earlier agreed, the giving and taking ceremony was performed and the defendant no. 1 was adopted by performance of Puja. Defendant no. 1 since then remained in the house of adoptive parents and was brought up by them. On 9.3.1971 a registered deed of acknowledgement adoption came into being. These are all the pleadings concerning adoption. Now the evidence stand that the defendant no. 1 was the only son of his natural parents. 1 was adopted by performance of Puja. Defendant no. 1 since then remained in the house of adoptive parents and was brought up by them. On 9.3.1971 a registered deed of acknowledgement adoption came into being. These are all the pleadings concerning adoption. Now the evidence stand that the defendant no. 1 was the only son of his natural parents. When this normally stands as a suspicious circumstance, the same has remained unexplained as to what was the special reason or circumstance which prevailed upon and compelled the natural parents of defendant no. 1 to give in adoption of their only child so as to remain childless which is a great departure from the normal course in the society running counter to the cherished desire of a married couple. The defendant no.1 himself has stated that he was adopted by Daman and Kansala and his natural parents gave to him on the lap of the adoptive parents which per se is not acceptable when it is said that it was on the 21st day of his birth that the adoption took place. The other suspicious feature emerges is that when it is stated by defendant no. 1 that for the adoption in their caste and community Bramhin is not required and no Homam is performed, nonetheless the deed of acknowledgement of adoption Ext. A shows that Bramhin was engaged and Homam was performed. The very execution of Ext. A after long lapse of time itself again stands as a circumstance to be viewed in the negative in the absence of evidence that what was the special need that when the adoption was way back in the year 1945-46, the deed of acknowledgment of adoption would be made in the year 1971 and that too after the death of Daman, when defendant no. 1 was aged around 25 years and Kansala was by then 75 years old. More so, it is not stated that during then the defendant no. 1 was having any sort of ill feeling with the plaintiffs, so that Kansala in order to safeguard the interest of defendant no. 1 viewing the future dispute to be obvious would come forward on her own to voluntarily execute this deed of acknowledgement of adoption vide Ext.A. It is not explained as to why such Ext. A was not done with their knowledge or consent. 1 viewing the future dispute to be obvious would come forward on her own to voluntarily execute this deed of acknowledgement of adoption vide Ext.A. It is not explained as to why such Ext. A was not done with their knowledge or consent. In the instant case, the defendant no. 1 having led direct evidence to prove the factum of adoption, he cannot bank upon the theory of ancient adoption and take advantage of the same of being relieved of the legal obligation of proving the factum of adoption through direct evidence of giving and taking and performance of other ceremonies, acts and deeds of the parties concerned. The defendant no.1 having admitted in evidence that the mutation was done without notice to the plaintiffs, those do not come to the rescue of defendant no. 1. None of the members from the family of the natural parents of defendant no. 1 has been examined. When it is said that natural mother was alive, her evidence which would have been of utmost importance and best has been withheld. Also no such clinching evidence in the light of Section 50 of the Indian Evidence Act are forthcoming in this case. D.W. 2 examined for the purpose is not a caste man of the parties nor a family relation in anyway. The lower appellate court has further gone to say that even the execution of the deed of acknowledge adoption Ext. A has not been duly proved. When the executant was an old and illiterate rustic adivasi lady, hailing from rural area, the defendant no. 1 has at least not taken the care to examine the scribe of Ext. A in proving that it was out of her own accord and a voluntary act being aware of the purpose and also the recitals and that she had the independent advice. In the above state of affair in evidence concerning the factum of adoption, the documents such as Exts. A to C, E to G and H are of no help to establish the claim of adoption since the plank having not even been placed, the question of the branches to provide the support to the plank to stand erected does not arise. Thus on overall examination of evidence, a cumulative view having been taken by the courts below in rendering concurrent finding that the defendant no. Thus on overall examination of evidence, a cumulative view having been taken by the courts below in rendering concurrent finding that the defendant no. 1 has failed to prove the factum of adoption by leading clear and acceptable evidence on giving and taking ceremony, this Court finds no such perversity in it and accordingly there arises no such justifiable and compelling reason to interfere with the said factual finding in this second appeal. 10. Now as regards settlement of Jhankari land in the name of defendant no.1 there remains no dispute that after the vesting in the year 1965 in terms of section 3(1)(e) of the Orissa Officers of Village Police (Abolition) Act 1964 in Misc. Case No. 192 of 1966 (Jhankari Case) there has been settlement of the land. So, it is contended by the learned counsel for the appellant that by such settlement a new right, title and interest has been created in favour of the defendant no.1 in respect of the suit land and accordingly the final Record of Right has been issued in his favour vide Exts. B and C when also defendant no.1 is paying the rent to the State as can be seen from the Exts. D, D/1 to D/35, the same is to be held to be his property. In this connection he has placed reliance on the decision of this Court in the case of Hiradhar Patel vs. Laindra Ganda @ Naik and others, 74 (1993) CLT 837, wherein reliance on the decision of the Apex Court in the case of State of Punjab & others vs. V. Sundersingh Ashok Kumar, AIR 1991 SC 2219, and Shiv Chander Kapoor v. Amar Bose, AIR 1990 SC 325 has been placed. Thus he submits that in view of the principles of law as settled, the order of settlement having not been set aside, the same is to hold the field. 11. In order to appreciate the above submission, it calls for having a look at factual aspect of the cited case of Hiradhar Patel (supra). Thus he submits that in view of the principles of law as settled, the order of settlement having not been set aside, the same is to hold the field. 11. In order to appreciate the above submission, it calls for having a look at factual aspect of the cited case of Hiradhar Patel (supra). In the said case after vesting of the land with the State by virtue of the provision of section 3(1)(e) of the Act, the applicant having filed necessary application for settlement, necessary case was registered by the competent authority wherein the case of the applicant as well as the writ-petitioner (adversary) were considered and the land was settled in the name of the writ-petitioner. Thereafter, the mother of one of the applicants initiated proceeding under section 3 of the Orissa Scheduled Areas Transfer of Immovable Property (By Scheduled Tribes) Regulation, 1956 (Orissa Regulation No. 2 of 1956) (described in short as ‘Regulation’) for restoration of the land in respect of the two plots. The Sub Divisional Officer acting under the Regulation declared the settlement to be null and void and directed for restoration followed by imposition of fine. Thereafter, the appeal being filed, the order was set aside and the matter was remanded to the Sub Divisional Officer who then held the case as not maintainable for two dispute plots. But for the three undisputed plots restoration of possession was ordered; followed by imposition of fine. In the writ application the undisputed plots were not the subject matter. The last order of the Sub Divisional Officer was challenged in the appeal and that was allowed. So, the basic question arose whether the settlement of the land in favour of Hiradhar made under the provision of the Act can be nullified in the proceeding under the Regulation and if the authority had the jurisdiction to do so even though there remains any infirmity when the same was not challenged in the appropriate forum putting a full stop to the settlement for ever. It was urged that such nullification of the settlement in the proceeding under the Regulation amounts to review of an order passed under another statute while dealing with a case under an entirely different statute. It was urged that such nullification of the settlement in the proceeding under the Regulation amounts to review of an order passed under another statute while dealing with a case under an entirely different statute. Thus the Court was faced with only one question as to whether the order of the settlement in favour of the petitioner would be set at naught in a proceeding under the Regulation 2 of 1956. In that context it has ultimately been answered that the order of settlement cannot be held to be bad and indefensible by the authority acting under the Regulation 2 of 1956. Adverting to the fact of the present case, the defendant no.1 has not proved any order to have been passed under the provision of the Act. It has been so noted clearly by the trial court in para 17 of the judgment, and the only evidence tendered in this connection to prove the said fact is the mutated Record of Rights vide Exts. B and C. The trial court very rightly has gone to say that when evidence remains that Daman died 20 years back and D.W.2 also states Daman to have died 10 to 15 years back; on consideration of above evidence it stands that Daman died after the year 1963. So the land must have settled in his name when defendant no.1 was never even appointed as Jhankar. Neither the order of the settlement has been proved nor that of the Board of Revenue giving endorsement to the settlement of the land is forthcoming. Thus the mutated Record of Rights having not been taken to be final in the matter of holding that the settlement was made in favour of the defendant no.1, this Court finds the approach to be wholly correct. Therefore in view of the settled position of law that the mutated Record of Right does neither create nor extinguish the title, the courts below are found to have committed no such error in answering those issues against the defendant no.1 when also the defendant no.1 examined as D.W.1 has admitted in the evidence that no notice in that mutation was served upon the plaintiffs. Thus the principles of law decided in the cited case do not come to help the case as set up by the defendant no.1. Thus the principles of law decided in the cited case do not come to help the case as set up by the defendant no.1. Moreover the plaintiff as is seen on the basis of the status of said adoption has gone for said mutation and that status of adoption when now is held in the negative, the mutated Record of Right cannot stand in the way of passing the decree as ordered by the courts below. Therefore, such factum of recoding of the land has been rightly not taken to be standing as blockade for passing the decree as prayed for by the plaintiff. The aforesaid discussion and reasons accordingly provide answer to the substantial questions of law which runs against the appellant. 12. Resultantly, the appeal stands dismissed. There is however no order as to cost.