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2024 DIGILAW 637 (JHR)

Anjana Rai v. Kisto @ Krishna Chandra Rai

2024-06-28

SANJAY KUMAR DWIVEDI

body2024
JUDGMENT : SANJAY KUMAR DWIVEDI, J. Heard Mr. Kaushal Kishor Mishra, learned counsel for the appellants. 2. This appeal has been filed against the judgment dated 02.07.2016 passed by the learned Principal District Judge, Jamtara in Title Appeal No.69 of 2015 dismissing the appeal and affirmed the judgment dated 26.11.2015 and decree signed on 07.12.2015 passed by the learned Civil Judge (Senior Division)-I, Jamtara in Title Suit No.45 of 2007. 3. The plaintiffs/appellants instituted the suit with the prayer to declare that the defendant no.1, namely, Kisto @ Krishna Chandra Rai was never adopted by Mahavir Rai and the alleged deed of adoption is illegal, void and not enforceable in law. The further prayer was made in the suit for cancellation of the alleged deed no.76 of 1985 registered at Jamtara Sub- Registration Office. The prayer was also made for perpetual injunction restraining the defendant- Kisto @ Krishna Chandra Rai from claiming as adopted son of Mahavir Rai since deceased. The further prayer was made for cost of the suit. 4. The case of the plaintiffs/appellants before the learned Trial Court was as under: The plaintiffs and others are Jamabandi raiyat of mouza Kurta, Lakshmipur and Bistupur having lands in joint khatiyan no. 46, 47, 25 and 30 respectively recorded in the names of Babulal Rai and others, the ancestors of the plaintiffs during last survey settlement concluded in the year 1935 having 23.50 acres of lands described in the parcha. The defendants are outsiders and they have no concerned with landed properties of the aforesaid khatiyans. The plaintiffs have given a genealogical table in plaint to show the relationship of the plaintiffs inter se and with their common ancestor and recorded tenant of their joint khatiyan. Out of the recorded tenants, Babulal Rai died first leaving his only son Mahavir Rai as his sole heir and successor. The further case of the plaintiffs was that Lalitabala Dasi was wife of Mahabir Rai, but they have got no issue and they were all along very much satisfied with their cousins and their children and never intended to take son in adoption by debarring all his co-sharers. The further case of the plaintiffs was that Lalitabala Dasi was wife of Mahabir Rai, but they have got no issue and they were all along very much satisfied with their cousins and their children and never intended to take son in adoption by debarring all his co-sharers. Lalitabala Dasi became very much sick and invalid in or about 1984, hence as per Lalita advice, Mahavir Rai brought Lalita's sister's daughter Sushilabala Dasi, defendant no.3 therein for her nursing and to look after homestead affairs like fooding and her husband Puran @ Puranchand Rai was visiting Mahavir's house off and on. Subsequently, Puran @ Puranchand Rai, defendant no.02 therein was also engaged in cultivation works over lands possessed by Mahavir Rai as a result of family arrangement and started living in the house of Mahavir Rai as his Munish (agricultural labourer). Lalita Dasi, wife of Mahavir Rai died in the year 2001 and her Mukhagni was done by the plaintiff Churaman Rai as elder nephew and Mahavir Rai was forced to keep defendant in his house or residential work and cultivation as he became old and sick. The plaintiffs being sympathetic to Mahavir Rai allowed the defendant to live in the house of Mahavir Rai and to cultivate lands on his behalf as his munish. The said Mahavir Rai died in Kartik 2006 and the plaintiff Churaman Rai performed his Mukhagni and last rites according to Hindu custom as Mahavir was issueless and utilized the productions of his field in his Bhoj-Bhat by entering into possession over his possessed lands. After Bhoj-Bhat, the plaintiffs asked the defendant to vacate the house of Mahavir Rai, but the defendants were deferring the matter by hook and crook and were requesting the plaintiffs to permit the defendants to live till they could shift to their paternal village Dalberia. After Bhoj-Bhat, the plaintiffs asked the defendant to vacate the house of Mahavir Rai, but the defendants were deferring the matter by hook and crook and were requesting the plaintiffs to permit the defendants to live till they could shift to their paternal village Dalberia. In between the aforesaid negotiation, rainy season started and while the defendant-Puran @ Purna Chand Rai on 20.05.2007 went to the fields of Mahavir Rai with plough, cattle for its cultivation, the plaintiffs who reside in the village have taken up possession of Mahavir Rai, did not allow the defendant to plough the land and called a panchayati in the village in the evening of same date, where the defendant Purna Rai for the first time disclosed the matter of adoption of his son Kisto @ Krishna Chandra Rai by the deceased Mahavir Rai and shown a deed of adoption to the arbitrators said to be executed by Mahavir Rai and others in favour of Kisto @ Krishna Chandra Rai said to be registered at Jamtara Sub-registration office. The plaintiffs being informed about the alleged claim of the defendants came to Jamtara next day and on inquiry learnt that the concerned relevant registered has been deposited at Dumka. The plaintiff Churaman Rai thereafter went to Dumka on 28.05.2007 for obtaining detail particulars of the alleged deed of adoption and find it out the endorsement of the alleged deed registered as deed no.76 of 1985 containing all sorts of false and fabricated narration for the purpose of creating a right in favour of Kisto @ Krishna Chandra Rai with the aid and assistance of Puran Rai and his wife and for the first time learnt about the alleged adoption by the deed. The said deed no.76 of 1985 registered at Jamtara registration office is a spurious document created by the defendants with the aid and assistance of their relations and friends with malafide object of grabbing landed properties of Mahavir Rai, since deceased. Mahavir Rai never adopted the defendant Kisto @ Krishna Chandra Rai nor he or his wife ever executed any deed of adoption as alleged nor the said matter has ever been communicated amongst relations and the villagers for any point of time before 26.06.2007. Mahavir Rai never adopted the defendant Kisto @ Krishna Chandra Rai nor he or his wife ever executed any deed of adoption as alleged nor the said matter has ever been communicated amongst relations and the villagers for any point of time before 26.06.2007. The defendant-Kisto @ Krishna Chandra Rai or his parents, the other defendants never described nor introduced Kisto Rai as adopted son of Mahavir Rai since last more than two decades either in public or an any occasion whenever arises and all along remained silent on that point till Mahavir died, but all through Kisto Rai is known and identified as son of Puran Rai in relevant documents. The further case of the plaintiffs was that the impugned deed has been created without any ceremony of actual giving and taking and without the knowledge of active participation of Mahavir Rai and his wife, undue influenced was exercised and fraud exercised by defendant nos. 2 and 3 either on the office of registration or on Mahavir Rai and his wife is creating the impugned deed in connivance with some professional Court thoughts. No ceremony of adoption was ever performed at any place like Jamtara Hatia Shib Temple and there was no physical act of giving and taking in relation to impugned alleged adoption. The deed writer was bribed by the defendant no.02 and the entire narration of fictitious adoption was kept concealed from Mahavir Rai and his wife as well as the villagers of Kurta. The existence of the false alleged adoption deed may adversely affect by the plaintiffs' right of succession and if it is left outstanding, it may create complications in successions to the properties of Mahavir Rai. Besides the matter has come to the knowledge of the plaintiffs for the first time on 20.05.2007 and their right to sue will be barred, if action is not taken immediately and hence the suit was instituted. The further case of the plaintiffs was that defendant no.01-Kisto @ Krishna Chandra Rai had not acquired any right to claim the right of Mahavir Rai on lands by virtue of false adoption. 5. The further case of the plaintiffs was that defendant no.01-Kisto @ Krishna Chandra Rai had not acquired any right to claim the right of Mahavir Rai on lands by virtue of false adoption. 5. The case of the defendants/respondents before the learned Trial Court was as under: The defendants had filed their written statement and taken their stand that save and except what has been specifically admitted in the written statement, the defendants denied all the claims and allegations of the plaintiffs made in the plaint and put them to be strict proof of the same. The defendants had taken further plea in their written statement that the suit is not maintainable and the plaintiffs have no cause of action for the suit and the suit is highly barred by law of limitation. The defendants have taken plea also that the suit is barred by the principles of estoppel, acquiescence and waiver on the part of the plaintiffs. The defendants pleaded that the defendant no.01 has on motivation and wrongly been described in the plaint as son of defendant no.2 when since his legal and valid adoption by Mahavir Rai and his wife Lalitabala Dasi on 25.02.1985, the defendant no.1 ceased to be the son of defendant nos.02 and 03 and became the son of Mahavir Rai and his wife. The further pleadings of the defendant was that on the aforesaid date i.e 25.03.1985 after performance of Puja, Hawan etc. the giving and taking ceremonies of defendant no.1 was duly performed by his natural parent of defendant no.1 and Mahavir Rai and his wife and the defendant no.1 was also transferred from the family of birth to the family of Mahavir Rai and since then, the defendant no.1 began to live with his adoptive parents' as their son and is known to all as their son. The defendants had also pleaded that the assertions as made in paragraph-1 of the plaint are not denied. Further, the defendants have pleaded that the assertions as made in paragraph-2 of the plaint are partly correct and partly wrong. The defendants had also pleaded that the assertions as made in paragraph-1 of the plaint are not denied. Further, the defendants have pleaded that the assertions as made in paragraph-2 of the plaint are partly correct and partly wrong. The defendants pleaded that the plaintiffs have vaguely and on motivation stated Babulal Rai and others as their ancestors when as per the genealogical table given in para-4 of the plaint, the recorded tenant Babulal Rai was not ancestor of the plaintiffs and the said Babulal Rai had left behind his son Mahavir Rai, who was the adoptive father of defendant no. 1. The defendants pleaded that the assertions as made in paragraph-3 of the plaint are not correct. The defendants pleaded that the defendant no.1 is the legally and validly adopted son of late Mahavir Rai and not outsiders and admittedly the defendant no.3 is the sister's daughter of late Lalitabala wife of Mahavir Rai and defendant no.2 is the husband of defendant no.3. The defendants pleaded that the genealogical table given in paragraph-4 of the plaint showing relationship of the plaintiffs with the recorded raiyat is substantially correct, but it is partly wrong as defendant no.1 has not been shown as son of Mahavir Rai and the name of son of Bholu Rai has not been mentioned. The defendants have pleaded that the assertions as made in paragraph-5 of the plaint is admitted. The defendants also pleaded that except the facts that Lalitabala Dasi was the wife of Mahavir Rai and they had no issue, the rest of the statements made in paragraph-6 of the plant are false and imaginary. According to the defendants, the true fact is that Mahavir Rai and his wife who were living separately from the plaintiffs having separate residential house, have no good relation and concern with his cousin and their children. The defendants pleaded that since his childhood, the defendant no.1 was very much affectionate to Mahavir Rai and his wife and they had always cherished to adopt a boy and ultimately they approached defendant no.2 and 3 to give their youngest son, the defendant no.1 in adoption to them, who agreed to do so and accordingly as submitted above the defendant no.1 was adopted by Mahavir Rai and his wife when he was aged about six years only. The defendants had pleaded further that the assertions as made in paragraph-7 of the plaint are not correct. According to the defendants, the true facts are that Mahavri Rai and his wife had no issue and Sohagi Devi, the own sister of Lalitabala was married in village-Baganbari. The husband of Sojagi Devi had died when her daughter Sushila, the defendant no.3 was aged about two years only and being moved by the pitiable condition of Sohagi Devi and her daughter, Mahavir Rai and Laitabala had brought them to their house long before 1984 and substantially, Mahavir Rai and his wife have got married Sushila Devi with the defendant no.2 and even after marriage, kept Sushila Devi in her house. The defendants pleaded that it is not denied as the defendant no.2 and 3 used to take care of Mahavir Rai and his wife and managed their household affairs including fooding. It was also not denied that the defendant no.3 also used to assist Mahavir Rai in the cultivation etc. of his agricultural land, but it is totally false that he was engaged by Mahavir Rai in cultivation work as munish (agricultural labourer) as falsely stated in paragraph-8 of the plaint. The defendants further pleaded that the assertions as made in paragraph-9 of the plaint are false and baseless and the same has been concocted for the purpose of the suit. The defendants pleaded that Mahavir Rai and his wife Lalitabala Dasi have no issue and they had adopted the defendant no.1 as their son, who was living with them and the defendant no.1 as their son who was living with them and defendant no.1 had performed Mukhagni and Shradh of his adoptive mother Lalitabala Dasi and Churaman Rai, the plaintiff no.2 had not done the same as falsely alleged in paragraph-9 of the plaint. According to the defendants, it is not correct that Mahavir Rai was forced to keep the defendant in his house for cultivation and residential work. The defendants had pleaded that the assertions as made in paragraph10 of the plaint are false and the same have been concocted for the purpose of the suit. According to the defendants, except the fact, that Mahavir Rai had died in Kartik 2006 the other statements made in paragraph-11 of the plaint are also totally false and baseless. The defendants had pleaded that the assertions as made in paragraph10 of the plaint are false and the same have been concocted for the purpose of the suit. According to the defendants, except the fact, that Mahavir Rai had died in Kartik 2006 the other statements made in paragraph-11 of the plaint are also totally false and baseless. The true fact is that the defendant no.1 being his adopted son, has performed his Mukhagni and Shradh, the expenses of which were met by defendant no.1 The defendants also pleaded that the assertions as made in paragraph-12 of the plaint are also figments of imagination and totally false. According to the defendants, Mahavir Rai had kept the defendant no.2 and 3 in his house, the defendant no. 1 had been adopted by Mahavir Rai about which, the plaintiffs were fully aware and the defendant no. 1 being adopted son of Mahavir Rai and his wife, has every right to live in the house of his adoptive father and the plaintiffs had no manner of right to ask them to leave the house and in fact they had never asked the defendants to do so or for the defendants to request the plaintiffs to permit them to live till they could shift to Dalberia. The defendants pleaded that the assertions made in paragraph-13 of the plaint are another instance of figments of imagination and the same are false and baseless. According to the defendants, the true fact is that since the life time of Mahavir Rai and his wife, only the defendant no.1 has been managing the cultivation of his lands over which, neither the defendant no.2 and 3 nor the plaintiffs have any manner of right and concerned. It is palpably false that in the rainy season 2007 on 20.05.2007, defendant Puran @ Purna Chandra Rai had gone to the field of Mahavir Rai with plough, cattle, for its cultivation and it is also imaginary and false that the plaintiffs had taken up possession of the lands of Mahavir Rai and did not allow the defendants to plough the land and panchayati in the evening was held on the same day, where the defendant Purna Chandra Rai for the first time, disclosed the matter of adoption of defendant no.1 by deceased Mahavir Rai and has shown the registered adoption deed to the imaginary arbitrators executed by Mahavir Rai and others. The defendants pleaded that the statement made in paragraph-13 of the plaint are false and the same have been concocted for the purpose saving limitation. The defendants pleaded also that the assertions as made in paragraph-14 and 15 of the plaint besides being vague are also not correct and as the plaintiffs were fully aware that on 25.03.1985 after performance of Puja Hawan etc., the giving and taking ceremonies of defendant no 1 were duly performed by his natural parents of defendant no. 1 and Mahavir Rai and his wife, Lalitabala Dasi in Jamtara Hatia Shiva Temple, when the defendant no.1 was also transferred to the family of Mahavir Rai in presence of relations and respectable persons and on the same day, in support of the said adoption, they had executed the deed of adoption in sub-registry office, Jamtara. The defendants had also taken plea that the deed of adoption in question contains false and fabricated materials for the purpose of creating a right in favour of Kisto Krishna Chandra Rai are itself false and baseless as the statement made in the deed are true and correct. The defendants pleaded that the allegations made in the said paragraph of the plaint against defendant no.2 and 3 are baseless and false. The defendants had further taken plea that the assertions as made in paragraph-16 of the plaint are incorrect, false and baseless. According to the defendants, admittedly Mahavir Rai had no issue and he and his wife Lalitabala Dasi intended to adopt a suitable boy to perpetuate his line and for performance of their last rites and accordingly they and their own accord and free will had adopted the defendant no.1 as their son after due performance of ceremonies including giving and taking ceremonies and thereafter they as well as their natural parents of defendant no.1 has got the deed of adoption prepared which was read over and explained to them in presence of witness and thereafter Mahavir Rai and defendant no.2 signed and Lalitabala Dasi and Sushilabala Dasi put their L.T.I. on each page of the deed of adoption and the said Mahavir Rai and Lalitabala Dasi as well as defendant no.2 and 3 had also appeared before the Sub-Registrar of registration office, Jamtara and admitted the execution of said adoption deed in presence of witnesses. The said deed of adoption bearing deed no.76 of 1985 is a genuine and valid deed of adoption and not spurious document created to grab the lands and properties of Mahavir Rai. The defendants had pleaded that the assertions as made in paragraph-17 of the plaint are entirely wrong and imaginary. According to the defendants, Mahavir Rai with the active consent of his wife adopted the defendant no.1 as their son and Mahavir Rai and his wife had duly executed the aforesaid deed of adoption and all the contrary statements made in paragraph-17 of the plaints are false. The defendants pleaded that the villagers and relations of Mahavir Rai including the plaintiffs were fully aware that Mahavir Rai and his wife has adopted defendant no.1 on and from the date of adoption itself. The defendants pleaded that the assertions as made in paragraph-18 of the plaint are wrong as since his adoption on 25.03.1985, the defendant no.1 was living with the adoptive parents, who since then all villagers and relations have been knowing the defendant no.1 as son of Mahavir Rai and his wife and not as son of defendant no.2 and 3. According to the defendants, all ceremonies including giving and taking ceremonies of adoption of defendant no.1 were duly performed on 25.03.1985 by the natural parents of defendant no.1 and Mahavir Rai and his wife Lalitabala Dasi and all contrary statements as made in paragraph-19 of the plaint are false and baseless. According to the defendants, it is also totally false that the defendant no.2 and 3 had exercised any fraud or undue influenced either on Mahavir Rai in the office of registration in the execution and registration of the deed of adoption in question as motivatedly and falsely alleged in paragraph-19 of the plaint. According to the defendants, all allegations and assertions as made in paragraph-20 of the plaint are absolutely false and imaginary and the same have been concocted for the purpose of the suit. According to the defendants, all allegations and assertions as made in paragraph-20 of the plaint are absolutely false and imaginary and the same have been concocted for the purpose of the suit. The defendants pleaded that Mahavir Rai and his wife of their own accord and free will had taken the defendant no.1 in adoption on 25.03.1985 in Shiv Mandir at Jamtara Hatia where besides other ceremonies, the giving and taking ceremonies of defendant no.1 were also performed by the natural parents of defendant no.1 and Mahavir Rai and wife Lalitabala Dasi respectively and the deed of adoption in support of the said adoption was got prepared by Mahavir Rai and his wife as well as by the natural parents of defendants no. 1 and the contents of the said deed are true and the plaintiffs and the villagers were fully aware about the said adoption since after the said adoption and execution of the deed. The defendants pleaded that the assertions as made in paragraph-21 and 22 of the plaint are misconceived and baseless. According to the defendants, Mahavir Rai had the right to adopt the son and as he with the active support of his wife duly adopted the defendant no. 1, the defendant no.1 as their adopted son alone acquired and came in possession of the properties of Mahavir Rai in which, the plaintiffs had or have no manner of right or concern. According to the defendants, the deed of adoption in question being true, valid and operative. There is no question that the existence of said deed adversely affecting the imaginary claim of the right of the plaintiffs in the properties of Mahavir Rai as falsely claimed in the plaint of the plaintiffs. The defendants pleaded that the plaintiffs have no cause of action for the suit and the contrary claim advanced in paragraph23 of the plaint are imaginary and false. The defendants lastly pleaded that the plaintiffs are not entitled to any relief whatsoever and the suit is fit to be dismissed. 6. Mr. Kaushal Kishor Mishra, learned counsel for the appellants submits that the learned Trial Court has erred in dismissing the suit on the ground of limitation. The defendants lastly pleaded that the plaintiffs are not entitled to any relief whatsoever and the suit is fit to be dismissed. 6. Mr. Kaushal Kishor Mishra, learned counsel for the appellants submits that the learned Trial Court has erred in dismissing the suit on the ground of limitation. He further submits that the learned Trial Court's observation and finding that Kisto @ Krishna Chandra Rai was duly adopted by Mahavir Rai and Lalitabala Dasi and the said deed was executed in the year 1985, which is further erroneous and the cause of action of the suit was also wrongly decided by the learned Trial Court and the same error has been made by the learned first Appellate Court. On these grounds, this second appeal may kindly be admitted on law point of limitation and on wrong finding. 7. The Court has gone through the judgment of the learned Trial Court and finds that the learned Trial Court has framed five issues to decide the suit. While deciding issue no.(iii), which was with regard to limitation, the learned Trial Court has considered that the deed no.76 of 1985 is containing all sorts of facts and the same was executed in the year 1985 and the defendants/respondents stated that the statements made in paragraph 13 of the plaint are false and the same have been concocted for the purpose saving limitation. They have also stated in paragraph 21 of the written statement that the assertions as made in paragraphs 14 and 15 of the plaint besides being vague and not correct as the plaintiffs were fully aware that on 25.03.1985 after performance of Puja Hawan etc., the giving and taking ceremonies of defendant no.1 were duly performed by natural parents of defendant no.1 and Mahavir Rai and his wife, Lalitabala Dasi in Jamtara Hatia Shiva Temple, when the defendant no.1 was also transferred to the family of Mahavir Rai in presence of relations and respectable persons and on the same day, in support of the said adoption, they had executed the deed of adoption in sub-registry office, Jamtara. The defendants had also stated in paragraph 24 of the written statement that the villagers and relations of Mahavir Rai including the plaintiffs were fully aware that Mahavir Rai and his wife has adopted defendant no.1 on and from the date of adoption itself. The defendants had also stated in paragraph 24 of the written statement that the villagers and relations of Mahavir Rai including the plaintiffs were fully aware that Mahavir Rai and his wife has adopted defendant no.1 on and from the date of adoption itself. The learned Trial Court has further discussed the evidence of P.W. witnesses and, thereafter, has come to the finding on the point of limitation. D.W.5, who is Santosh Pandit, who is a son of Prasadi Pandit. The said Prasadi Pandit was a witness over the alleged deed and he has stated that the family members of the plaintiffs/appellants and villagers were fully aware with the said deed of adoption. The learned Trial Court has also considered this aspect of the matter that when the document is registered, the date of registration becomes the deemed knowledge. Further, where a fact could be discovered by due diligence then deemed knowledge would be attributed to the plaintiffs because a party cannot be allowed to extend period of limitation by merely claiming that he had no knowledge and, thereafter, the said suit was decided. 8. While deciding issue no.(ii), which is with regard to whether the plaintiffs got valid cause of action, the learned Trial Court has come to a conclusion that since it was decided in view of issue no.(iv) about the limitation and suit was barred and since the alleged deed of adoption was executed in the year 1985 and story of the plaintiffs/appellants for the time of knowledge was already disbelieved by the learned Trial Court and in that view of the matter, the learned Trial Court has come to a conclusion that there is no valid cause of action for the suit. The other issues have also been decided by the learned Trial Court vide judgment dated 26.11.2015. 9. The plaintiffs/appellants preferred Title Appeal No.69 of 2015 and the learned first Appellate Court has further framed the point to decide the appeal and has discussed all the documents as well as evidence of the P.W. and D.W. and, thereafter, affirmed the judgment of the learned Trial Court and has come to the conclusion that the suit was barred by limitation and, thereafter, has dismissed the said appeal. 10. There are concurrent findings of two Courts and the fact of the matter was fully discussed by both the Court. 10. There are concurrent findings of two Courts and the fact of the matter was fully discussed by both the Court. There is no law point involved in the present second appeal and in view of that, this second appeal is not fit to be admitted on any substantially question of law and, as such, this second appeal is dismissed.