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2017 DIGILAW 122 (ORI)

Jayakrushna Majhi v. Pramila Mallik

2017-01-27

A.K.RATH

body2017
JUDGMENT : Dr. A.K. Rath, J. Defendant no.1 is the appellant against a confirming judgment. 2. The facts which are essential to be exposited are that respondent no.1 along with her mother, Bhama Majhi instituted T.S.No.80 of 1998 before the learned Civil Judge (Sr. Division), Sonepur for declaration of right, title, interest over the suit land, confirmation of possession and for a declaration that defendant no.1 is not the adopted son of Lachman Majhi and permanent injunction. The case of the plaintiffs is that the parties are ‘Kandha’ by caste and are governed under the provisions of old Hindu Law. The suit property originally belonged to one Lachman Majhi. The same was recorded in his name in the 4th settlement. Lachman died in the year 1980 leaving behind his wife Bhama-plaintiff no.1 and daughter-Pramila Mallik-plaintiff no.2 and son Sarbeswar. Sarbeswar died in the year 1991. The plaintiffs remained in possession of the suit land. After the death of Sarbeswar, the defendants tampered the Tahasil record to grab the property of Lachman. On the application of the plaintiffs, the names of defendants had been deleted from the Tahasil records. The defendants have no semblance of right, title, interest or possession over the suit land. Neither Lachman nor his wife had ever adopted defendant no.1 as their son. They had also not executed any deed of adoption in favour of defendant no.1 and if there is any such document, the same is forged one. The defendant no.1 was recognized and treated as son of his natural father for all intents and purposes. The 5th settlement R.O.R. was wrongly prepared in the name of Jaykrushna Majhi along with the plaintiffs basing on a forged registered deed of adoption, which was created by impersonation. When defendant no.1 failed to succeed in his attempt to tamper the Tahasil records, he had created forged adoption deed on 6.12.1993 by impersonation. The plaintiffs came to know about the alleged adoption of defendant no.1 during proceedings under Section 144 Cr.P.C. (Crl.Misc.Case No.137 of 97) before the S.D.M., Sonepur, which was initiated by the defendant against the husband of plaintiff no.2 and other co-villagers. The plaintiffs have also denied execution of any unregistered deed of gift by Lachman in favour of Gadan Tandi, father of defendant no.2, in respect of the suit property. The plaintiffs have also denied execution of any unregistered deed of gift by Lachman in favour of Gadan Tandi, father of defendant no.2, in respect of the suit property. The defendant no.2 had filed Objection Case No.1187 of 1999 before the A.S.O., Khari, which was rejected. Thereafter he preferred Settlement Appeal No.19 of 2000, which was also dismissed. Since the defendants started claim over the suit land, they filed the suit seeking the reliefs as mentioned. During pendency of the suit, plaintiff no.1 died. 3. Pursuant to issuance of summons, the defendants entered appearance and filed separate written statements. The defendant no.1 in his written statement challenged the maintainability of the suit. He admitted that he and the plaintiffs are ‘Kandha’ by caste and governed by the provisions of old Hindu Law. He does not deny the relationship of the plaintiffs with Lachman. He claims to be the adopted son of Lachman. He admitted that the suit land was recorded in the name of Lachman in the 4th settlement. After death of Lachman, his wife-plaintiff no.1 and defendant no.1 succeeded to the property. The specific case of defendant no.1 is that since Lachman and his wife were issueless, they adopted defendant no.1 on the day “Baisakha Sukla Dwadasi” in the year 1965. There was a giving and taking ceremony. The said ceremony was performed at the house of Lachman in presence of the caste men, villagers and relatives. By then, he was seven years old. Since the date of adoption, he is being treated as the adopted son of Lachman and his wife by the public at large as well as in all official records. Lachman got him admitted in the school. He sold the land to defendant no.2, being the father guardian of defendant no.1. The plaintiff no.1 had also executed the registered deed of acknowledgement of adoption on 6.12.1992. He, being the adopted son, has right, title, interest and possession over the suit property. 4. Defendant no.2 in his written statement has also admitted that he is ‘Ganda’ by caste. According to him, defendant no.1 is the adopted son of Lachman and his wife Bhama. Thus they succeeded to the suit property appertaining to khata nos.132 and 133 of 4th settlement. 4. Defendant no.2 in his written statement has also admitted that he is ‘Ganda’ by caste. According to him, defendant no.1 is the adopted son of Lachman and his wife Bhama. Thus they succeeded to the suit property appertaining to khata nos.132 and 133 of 4th settlement. It is further stated that Lachman had gifted the schedule property in favour of Gadan Tandi, the father of defendant no.2, on 3.1.1960 by means of a unregistered gift deed. Possession of the suit land was also delivered to his father. His father remained in exclusive possession of the land till his death in the year 1985 and after his death, he succeeded to the same. The deed was executed by Lachman being impressed with the service and obligation of his father. He has also paid rent and obtained rent receipts. He had also moved the Tahasildar, Sonepur in R.M.C. Case No.221 of 1995 for recording of the land in his name. In the said proceedings, R.I., Khari reported about his possession. The plaintiffs and defendant no.2 had admitted the factom of said gift and possession. He had no knowledge about initiation of the proceedings under Section 144 Cr.P.C. since he was not a party. Thus he is in continuous, peaceful and cultivating possession over the property since the time of his father for a period of more than forty years and as such acquired title by way of adverse possession. 5. On the inter se pleadings of the parties, the learned trial court framed eight issues, out of which, 4 to 7 are pivotal. The same are:- “4. Have the plaintiffs right, title, interest and possession over the suit land ? 5. Are the plaintiffs entitled to a declaration that the defendant No.1 is not the adopted son of Laxman Majhi and his wife ? 6. Are the plaintiffs entitled to an order of permanent injunction against the defendants in respect of the suit property? 7. Is the defendant no.2 in possession of Ac.4.000 dec. of land appertaining to plot no.52 out of Ac.11.160 dec., plot no.49 extending Ac.1.180 dec. and plot no.50 extending to Ac.1.010 dec. 6. Are the plaintiffs entitled to an order of permanent injunction against the defendants in respect of the suit property? 7. Is the defendant no.2 in possession of Ac.4.000 dec. of land appertaining to plot no.52 out of Ac.11.160 dec., plot no.49 extending Ac.1.180 dec. and plot no.50 extending to Ac.1.010 dec. out of Khunti No.1 of 3rd settlement corresponding to plot nos.8, 9 and 3 of khata no.15 of 5th settlement of village Bahirakhaman as owner in pursuant to the gift deed executed by deceased Lachhaman Majhi in favour of Gadan Tandi, the father of defendant no.2 ?” 6. To substantiate the case, the plaintiffs had examined four witnesses and on their behalf, thirteen documents were exhibited. The defendants had examined five witnesses and on their behalf, nine documents were exhibited. 7. The learned trial court came to hold that defendant no.1 failed to establish that he is the adopted son of Lachman Majhi and Bhama Majhi and, accordingly, answered issue no.5 in favour of the plaintiffs. The plea of adverse possession advanced by defendant no.2 was negatived and, accordingly, issue nos.4, 6 and 7 were answered in favour of the plaintiffs. It was further held that the plaintiff no.2, being the sole successor of the parents, is entitled to a declaration of her right, title, interest and possession over the suit land. Held so, the learned trial court decreed the suit. The defendant no.1 unsuccessfully challenged the said judgment and decree passed by the learned trial court before the learned Additional District Judge, Sonepur in R.F.A. No. 51 of 2006, which was eventually dismissed. 8. Mr. Ghosh, learned Advocate for the appellant submitted that defendant no.1 is the natural son of Trinath Majhi, brother of Lachman. Lachman had no son. Lachman and his wife Bhama, plaintiff no.1 adopted him on the date of “Baisakh Sukla Dwadasi” in the year 1965. There was a giving and taking ceremony. The giving and taking ceremony was performed in the house of Lachman in presence of castemen, villagers and relatives. He was seven years old. Since the date of adoption, defendant no.1 was being treated as the son of Lachman and his wife by the public at large as well as in official records. There was a giving and taking ceremony. The giving and taking ceremony was performed in the house of Lachman in presence of castemen, villagers and relatives. He was seven years old. Since the date of adoption, defendant no.1 was being treated as the son of Lachman and his wife by the public at large as well as in official records. In token of such adoption, plaintiff no.1 had executed a registered deed of acknowledgment of adoption on 6.12.1992 vide Ext.A. Lachman during his life time had executed the registered sale deed along with Jayakrushna Majhi-defendant no.1 on 26.6.1969, which has been marked as Ext.C. The plaintiffs had never challenged the execution of Ext.A and C. The contemporaneous documents like Ext.A to C and Ext.J, J/1 and J/2, which are registered deeds as well as official records, suggest that defendant no.1 was being treated as the son of Lachman and plaintiff no.1. He further submitted that if direct evidence of giving and taking ceremony is not available on account of long lapse of years than the burden of proof shifts to the person who challenges the adoption to disprove the adoption. Learned lower appellate court rejected the plea of ancient adoption of defendant no.1 holding that the brother of Bhama Majhi, namely, Makardhwaja was alive at the time of adjudication of the suit. In order to substantiate the plea of ancient adoption, defendant no.1 had exhibited Ext.A, the registered deed of acknowledgment of adoption, Ext.B-SLC dated 9.9.1974 and Ext.C-certified copy of R.S.D. dated 26.6.1969. All the aforesaid documents were marked as exhibits without any objection in view of the fact that the official documents prepared by competent authorities in due discharge of their official duty creates a presumption of adoption of defendant no.1 by Lachman and his wife Bhama, plaintiff no.1. It was the specific case of defendant no.1 that the witnesses to the giving and taking ceremony of his adoption were no more alive at the time of recording of evidence. 9. In Rahasa Pandiani (dead) by L.Rs and others v. Gokulananda Panda and others, AIR 1987 SC 962 , the apex Court held that if there are any suspicious circumstances, just as the propounder of the will is obliged to dispel the cloud of suspicion, the burden is on one who claims to have been adopted to dispel the same beyond reasonable doubt. It was further held that experience of life shows that just as there have been spurious claims about execution of a will, there have been spurious claims about adoption having taken place, and the Court has therefore to be aware of the risk involved in upholding the claim of adoption if there are circumstances which arouse the suspicion of the Court and the conscience of the Court is not satisfied that the evidence preferred to support such adoption is beyond reproach. 10. A Division Bench of this Court in Sauney Majhi and another Vrs. Duli Dei and others, AIR 1985 Orissa 22, in paragraphs-6 and 7 of the report held:- “6. The law is fairly settled that the evidence in support of an adoption is sufficient to satisfy the very grave and serious onus that rests upon any person who seeks to displace the natural line of succession by alleging an adoption. The fact of adoption must be proved in the same way as any other fact, but where there is a lapse of long period between the date of adoption and the time when it is being questioned, every allowance for the absence of evidence to prove such fact must be favourably entertained, as after the lapse of a long period, direct evidence to prove adoption may not be available. The Supreme Court in the case of L. Debi Prasad v. Smt. Tribeni Devi, AIR 1970 SC 1286 , observed :- "In the case of all ancient transactions, it is but natural that positive oral evidence will be lacking. Passage of time gradually wipes out such evidence. Human affairs often have to be judged on the basis of probabilities. Rendering of justice will become impossible if a particular mode of proof is insisted upon under all circumstances. In judging whether an adoption pleaded has been satisfactorily proved or not, we have to bear in mind the lapse of time between the date of the alleged adoption and the date on which the concerned party is required to adduce proof. Rendering of justice will become impossible if a particular mode of proof is insisted upon under all circumstances. In judging whether an adoption pleaded has been satisfactorily proved or not, we have to bear in mind the lapse of time between the date of the alleged adoption and the date on which the concerned party is required to adduce proof. In the case of an adoption said to have taken place years before the same is questioned, the most important evidence is likely to be that the alleged adoptive father held out the person claiming to have been adopted as his son; the latter treated the former as his father and their relations and friends treated them as father and son. There is no predetermined way of proving any fact. A fact is said to have been proved where after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. Hence if after taking an overall view of the evidence adduced in the case, we are satisfied that the adoption pleaded is true, we must necessarily proceed on the basis, in the absence of any evidence to the contrary, that it is a valid adoption as well." The aforesaid view of the Supreme Court has been followed in a number of cases of this Court and of other High Courts. The aforesaid principle only regulates the mode of proof of the factum of adoption. In the decision in the case of Sri Kanchumarthi Venkata Seetharama Chandra Row v. Kanchumarthi Raju, AIR 1925 PC 201 , which has been approved by the Supreme Court in the case of Voleti Venkata Ramarao v. Kesaparagada Bhasararao, AIR 1969 SC 1359 , it has been authoritatively said that in the case of an ancient adoption, it stands to reason that after a very long term of years and a variety of transactions of open life and conduct upon the footing that the adoption was a valid act, the burden must rest heavily upon him who challenges its validity. The appellants in this case rely upon the aforesaid principles and have contended that the date of adoption as available from the evidence on record was 1909 and it is not possible to prove the factum of adoption by direct evidence. Thus, according to them the overall view of the evidence on record should lead to the conclusion that there was a valid adoption as alleged by them. 7. The law is equally well settled that where direct evidence is available for establishing the ceremony of adoption irrespective of lapse of time, the relaxation permissible in the case of an ancient adoption is not available to be applied. (Vide (1968) 34 Cut LT 778, Jadumani Patra v. Padan Patra and AIR 1973 Orissa 160, Jagannath Mohanty, v. Chanchala Bewa).” 11. The instant appeal may be examined on the anvil of the decisions cited supra. The case of defendant no.1 is that he was adopted by Lachman Majhi and Bhama Majhi. There was a giving and taking ceremony. In his evidence, he has stated that all the witnesses to the giving and taking ceremony are dead. In paragraph20 of his deposition, he has stated that brother of Bhama-plaintiff no.1, Makardhwaja is alive. The learned trial court came to hold that the evidence of defendant no.1 that all persons are dead is not acceptable. The defendant no.1 has failed to establish the alleged giving and taking ceremony of adoption. Reliance was placed on the so called deed of acknowledgement of adoption vide Ext.A. The learned trial court on a thorough scrutiny of the pleadings and evidence came to hold that the executant thereof had put her L.T.I. as she was an illiterate lady. The burden lay on defendant no.1 to establish due execution of the alleged deed vide Ext.A, the contents of the document were read over and explained to her, she understood the same and thereafter she put her L.T.I. The defendant no.1, in his evidence, has stated that after death of his adoptive father, Bhama Majhi-plaintiff no.1 had executed Ext.A. According to him, stamps were purchased by Bhama Majhi on 14.10.1992 and the deed was scribed as per her instruction in presence of witnesses. The executant and the witness put their L.T.I. and signatures on the deed after the contents thereof were read-over and explained. The executant and the witness put their L.T.I. and signatures on the deed after the contents thereof were read-over and explained. The defendant no.2 claims to be a witness in Ext.A. In his cross examination, he stated that defendant no.1 had identified the executant of Ext.A. The learned trial court came to hold that defendant no.1 was present at the time of preparation and registration of the alleged deed, vide Ext.A. It further held that stamp papers, vide Ext.A were purchased one and half months prior to its execution. The defendant no.1 had failed to explain under what circumstances, the stamp papers were purchased and under what circumstances Bhama Majhi wanted to execute Ext.A. The learned trial court further held that due execution of Ext.A by Bhama Majhi is doubtful. It further held that the defendant has admitted in his statement in R.M.C. No.1 of 1993 that Lachman had a son, namely, Sarbeswar Majhi, who died in the year 1991. Placing reliance on a decision of this Court in the case of Birabara Rout an others Vrs. Dullabh Rout and others, Vol. 38 (1972) C.L.T. 161, it held that admission of a party in mutation proceeding is admissible. It further held that the Revenue Misc. Case was initiated on the application of plaintiff no.2 to delete the name of defendant no.1 from the 4th settlement R.O.R. in respect of khata no.15 of village Bahirkhaman. The order dated 10.2.1993 passed by the Tahasildar, Sonepur in R.M.C.No.1 of 1993 was exhibited as Ext.12. Plaintiff no.2 had made an allegation that defendant no.1 managed to insert his name in 4th settlement R.O.R. in respect of khata no.15 by gaining over the Tahasil staff. On the basis of the said allegation of plaintiff no.2, an inquiry was conducted by the Tahasildar, Sonepur, who had ascertained that there was tampering of record by which the name of defendant no.1 was inserted in the R.O.R. The defendant no.1 expressed about his ignorance of such record. In the said case, defendant no.1 had specifically stated that the natural born son of Lachman Majhi namely, Sarbeswar Majhi died two years back. The statement was made by him on 7.5.1993. The learned trial court came to hold that the claim of the plaintiffs that the natural born son of Lachman Majhi, namely, Sarbewswar Majhi died in the year 1991 had been admitted by defendant no.1. The statement was made by him on 7.5.1993. The learned trial court came to hold that the claim of the plaintiffs that the natural born son of Lachman Majhi, namely, Sarbewswar Majhi died in the year 1991 had been admitted by defendant no.1. The admission made by defendant no.1 in the mutation proceeding is admissible. The statement made by defendant no.1 in the said case vide Ext.12 can be taken as admission against him with regard to the fact that Sarbeswar Majhi, the son of Lachman Majhi died two years back. It further held that the plaintiffs had relied upon Ext.3 to establish that Sarbeswar Majhi was alive at the relevant point of time. Ext.3 is the certified copy of application made by defendant no.1 along with certified copy of Field Inquiry Memorandum made by the Tahasildr, Sonepur in Crl.Misc.Case No.137 of 1997. The Field Inquiry report shows that only son of Lachman Majhi, namely, Sarbeswar Majhi was aged about 4 to five years at the time of the death of his father. The learned trial court took a strong exception with regard to non-production of deed of acknowledgement in Crl.Misc.Case No.137 of 1997 before the Tahasildar, Sonepur and held that the same creates a doubt about its genuineness. The learned trial court further came to hold that defendant no.1 has failed to discharge the heavy onus lies on him to establish that Ext.A is a genuine document. Further, the case of the plaintiffs is that Sarbeswar Majhi, the son of Lachman Majhi and Bhama Majhi was alive during nineties. The findings of the learned trial court have been affirmed by the appellate court. 12. In Birabara Rout (supra), the question arose whether certified copy of deposition of defendant no.3 therein, who had been examined in Mutation case, was admissible on facts. This Court held that an admission by itself is substantive evidence in view of Secs. 17 and 20 of the Evidence Act, though it is not conclusive proof of the matter admitted. An admission duly proved is admissible evidence irrespective of whether the party making it appears in the witness box or not and whether such party appearing as witness was confronted with those statements in case the party made a statement contrary to the admission. An admission duly proved is admissible evidence irrespective of whether the party making it appears in the witness box or not and whether such party appearing as witness was confronted with those statements in case the party made a statement contrary to the admission. The purpose of contradicting the witness under Sec. 145 of the Evidence Act is quite different from the purpose of proving the admission. Admission is substantive evidence of the fact admitted while a previous statement used to contradict a witness does not become substantive evidence and only serves the purpose of throwing doubt on the veracity of the witness. Weight to be attached to an admission made by a party is a matter different from its use as admissible evidence. In view of categorical admission of defendant no.1 that Lachhman Majhi had a son namely, Sarbeswar Majhi, who died in the year 1991, the learned trial court is justified in negativing the plea of adoption advanced by defendant no.1. 13. The basis of claim of defendant no.1 over the schedule property is adverse possession. Adverse possession is a mixed question of fact and law. In the celebrated judgment, the Privy Council, in the Secretary of State Vrs. Debendra Lal Khan, A.I.R. 1934 Privy Council 23, held that the classical requirement of adverse possession is that the possession should be nec ve nec clam nec precario. Their Lordships quoted with approval the decision in the case of Radhamoni Debi Vrs. Collector of Khulna (1), 140 of 27 I.A. at page 140 that “the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor”. 14. On an anatomy of pleadings and evidence, both oral and documentary, the learned trial court negatived the plea of adoption of defendant no.1 as well as the plea of adverse possession of defendant no.1 over the suit property. The findings of fact arrived at by the learned trial court has been affirmed by the learned appellate court. There is no perversity or illegality in the same. 15. In the result, the appeal is dismissed, since the same does not involve any substantial questions of law.