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2019 DIGILAW 214 (ORI)

Baishnaba Mohanty v. Malati Mohanty

2019-03-14

A.K.RATH

body2019
JUDGMENT : A.K.RATH, J. 1. This appeal at the instance of the plaintiff assails the affirming judgment of the learned Ad hoc Addl. District Judge (Fast Track Court), Jagatsinghpur, in Title Appeal No.26 of 1996/27 of 1996 in a suit for declaration that Malati Mohanty, defendant no.1 is not the adopted daughter of Madhu Mohanty and the plaintiff is the successor of Madhu Mohanty. 2. The following genealogy would show the relationship of the parties. 3. The case of the plaintiff is that he had filed objection case to mutate the land in respect of the suit property of Madhu. The defendant no.1 advanced a claim that she is the adopted daughter of Madhu. Thereafter, the matter went to the Commissioner for Consolidation. By order dated 30.04.1993, the Commissioner held that Malati is the adopted daughter of Madhu. Consolidation Authority has no jurisdiction to decide the status of the parties. There is no acceptable evidence available on record that Malati is the adopted daughter of Madhu. The order of Commissioner cast a cloud of suspicion. With this factual scenario, he instituted the suit seeking the reliefs mentioned supra. 4. The defendant entered contest and filed written statement denying the assertion made in the plaint. The case of the defendant is that Markanda had two sons namely; Fakira and Basu. Fakira died leaving behind his only son Chintamani. Chintamani was issueless. He adopted Madhu, the natural born son of Udi. Madhu was issueless. She is the natural born daughter of Sadhu. Madhu adopted her on 8.2.1958. Satyanarayan Puja was performed. There was giving and taking ceremony. Her natural mother had handed over her to her adoptive parents. She remained in the house of Madhu as his adopted daughter. Her father admitted her in Jaipur U.P. School. After her marriage, she and her husband remained in the house of her father. After death of her father Madhu in the year 1982, she inherited the properties of her father. Her name has been recorded in the Hal Consolidation ROR. During the current Settlement Basu died, Gunduchi was looking after the settlement affairs on behalf of Basu. Gunduchi managed to record his name in the Settlement camp falsely identifying himself as the son of Basu. Gunduchi was stranger to Basus family. C.S.R.O.R. has been wrongly published in the name of Gunduchi. The plaintiff is a stranger to the family of Basu. Gunduchi managed to record his name in the Settlement camp falsely identifying himself as the son of Basu. Gunduchi was stranger to Basus family. C.S.R.O.R. has been wrongly published in the name of Gunduchi. The plaintiff is a stranger to the family of Basu. He has no title over the properties of Basu. 5. Stemming on the pleadings of the parties, learned trial court struck six issues. Parties led evidence, oral and documentary. On an anatomy of evidence and pleadings of the parties, learned trial court came to hold that defendant no.1 is the adopted daughter of Madhu, brother of her father Sadhu. There is no restriction to adopt a girl child after coming into operation of the Hindu Adoptions and Maintenance Act, 1956. Defendant is entitled to succeed the property of Madhu. The decision of the Consolidation Authority shall operate as res judicate. Held so, it decreed the suit. Unsuccessful plaintiff filed Title Appeal No.26 of 1996/27 of 1996, before the learned Adhoc Addl. District Judge (Fast Track Court), Jagatsinghpur, which was eventually dismissed. 6. The appeal was admitted on the following substantial questions of law: (i) Whether in fact the civil court has no jurisdiction to decide the question of status that is the question of adoption of Malati by Madhu, when the consolidation authority ancillary or incidentally has decided the issue, in view of the fact that Section 51 of the Consolidation of Holdings and Prevention of Fragmentation of Land Act is a bar to entertain the suit ? (ii) Whether Ext.A has any legal effect when ceremony of giving and taking as required under law has not been proved in view of the settled position of law that no document can be a substitute for giving and taking and whether the forum below committed error of record in observing that D.W.2 has proved the giving and taking ceremony of Malati by her natural father and adopted father in as much as D.W.2 has not made such statement. 7. Heard Mr. Alok Kumar Mohanty, learned counsel for the appellant and Mr. Narayan Prasad Parija, learned counsel for the respondent no.1. None appears for the respondent no.2. 8. Mr. Mohanty, learned counsel for the appellant submits that Malati, defendant no.1 is not the adopted daughter of Madhu. There was no giving and taking ceremony. 7. Heard Mr. Alok Kumar Mohanty, learned counsel for the appellant and Mr. Narayan Prasad Parija, learned counsel for the respondent no.1. None appears for the respondent no.2. 8. Mr. Mohanty, learned counsel for the appellant submits that Malati, defendant no.1 is not the adopted daughter of Madhu. There was no giving and taking ceremony. The Consolidation Authority has no jurisdiction to decide the status of the parties, since the issue of adoption did not arise incidentally or ancillarily. The decision of the Consolidation Authority shall not operate as res judicata. Notwithstanding the decision of the consolidation authorities, the suit is maintainable. 9. Conversely, Mr. Parija, learned counsel for respondent no.1 submits that by order dated 30.04.1993, the Commissioner came to hold that Malati, defendant no.1 is the adopted daughter of Madhu. The decision of the Consolidation Authority shall operate as res judicata. He further submits that even if wrong judgment between the parties, shall operate as res judicata. 10. In Jairam Samantray Vrs. Baikuntha Samantaray and others, 70 (1990) C.L.T. 439, a Division Bench of this Court speaking through Justice R.C. Patnaik (as he then was) held: "6 Seeking a declaration- simpliciter as to legal character as contemplated by Section 34 of the Specific Relief Act is exclusively within the jurisdiction of the Civil Court and not within the competence of the consolidation authorities. Except in case where title is claimed on the basis of transactions inter vivos in most cases title is claimed on the basis of relationship, say as son, father, mother, husband or wife etc. Each such question of relationship is a question pertaining to legal character or status, Don't the consolidation authorities decide such question of legal character in cases after cases day in and day out ? If then the consolidation authorities have jurisdiction to decide the question as to whether a person is son by birth, by what logic or law are they denied jurisdiction to decide if a person is son by way of adoption ? Sonship is acquired either by birth or by way of adoption. They are the different modes of acquisition. If title to property as son by birth can be adjudicated upon by the consolidation authorities, we fail to understand why adjudication of claim to title as son by way of adoption should be out of bounds to them. Sonship is acquired either by birth or by way of adoption. They are the different modes of acquisition. If title to property as son by birth can be adjudicated upon by the consolidation authorities, we fail to understand why adjudication of claim to title as son by way of adoption should be out of bounds to them. We are, therefore, of the view that the statement of law that the consolidation authorities have no jurisdiction to decide the question of adoption, that being a question of status, is not correct. In almost every case, consolidation authorities are deciding the question of status but a declaration of the law to the effect that the consolidation authorities have no jurisdiction to decide the question of adoption, if such question arises ancillarily or incidentally for adjudication of right, title and interest in property, is insupportable. We, therefore, hold that though Puni Bewa's case (supra) having regard to the declaration specifically sought has been correctly decided, the other two decisions, referred to above, where question of adoption was to be gone into ancillarily, have been correctly decided." 11. By order dated 30.04.1993, the Commissioner, Consolidation held that Malati is the adopted daughter of Madhu. The said order has attended finality. In the case of Srinibas Jena and others Vrs. Janardan Jena and others, AIR 1981 Orissa 1, a Full Bench of this Court in no uncertain terms held that the decision of the consolidation authorities on the questions of right, title and interest which are matters within their jurisdiction would operate as res judicata and that being so, the civil courts will have no jurisdiction to hear and decide the suit afresh. 12. There is no prayer in the suit to set aside the order passed by the Commissioner, Consolidation. The question dose arise whether in absence of any prayer to set aside the order of the Commissioner, Consolidation, the suit is maintainable ? 13. In the case of State of Kerala Vrs. M. K. Kunhikannan Nambiar Manjeri Manikoth, Naduvil (dead) and others, AIR 1996 SC 906 , the apex Court held that - "Even a void order or decision rendered between parties cannot be said to be non-existent in all cases and in all situations. Ordinarily, such an order will, in fact be effective inter parties until it is successfully avoided or challenged in higher forum. Ordinarily, such an order will, in fact be effective inter parties until it is successfully avoided or challenged in higher forum. Mere use of the word "void" is not determinative of its legal impact. The word "void" has a relative rather than an absolute meaning. It only conveys the idea that the order is invalid or illegal. It can be avoided. There are degrees of invalidity, depending upon the gravity of the infirmity, as to whether it is, fundamental or otherwise. The apex Court held: "7. xxx xxx xxx. An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders. This must be equally true even where the brand of invalidity is plainly visible: for there also the order can effectively be resisted in law only by obtaining the decision of the court. The necessity of recourse to the court has been pointed out repeatedly in the House of Lords and Privy Council without distinction between patent and latent defects." 14. In view of the authoritative pronouncement of the apex Court in the case of M.K. Kunhikannan Nambiar Manjeri Manikoth, Naduvil (supra), the suit is not maintainable. The substantial questions of law are answered accordingly. 15. In the wake of the aforesaid, the appeal sans merit, deserves dismissal. Accordingly the same is dismissed. There shall be no order as to cost.