Orissa High Court
Shyamsundar Mishra vs Sribatcha Mishra And Ors. on 17 May, 2002
Equivalent citations: AIR2002ORI178, 2002(II)OLR235, AIR 2002 ORISSA 178, (2002) 3 CIVILCOURTC 334, (2002) 2 ORISSA LR 235, (2002) 4 RECCIVR 303, (2002) 94 CUT LT 188
Author: B. Panigrahi
Bench: B. Panigrahi, M. Papanna
JUDGMENT B. Panigrahi, J.
1. Defendant No. 1 in Title Suit No. 20 of 1984 is the appellant in this appeal. This appeal is directed against the judgment and decree dated 12.7.1993 and 28.7.1993 respectively passed by the learned Subordinate Judge, Keonjhar (Now Civil Judge, Senior Division) directing partition and separate allotment of 1/4th share to plaintiff-respondents 1 to 10.
2. The following geneology will indicate the short history of the plaintiff's case.
Purusottam Mishra
|
____________________________|_________________________________
| | | |
Nads Govinds Nanda Bhagrathi
| |
Srimati __________|__________
| |
Kalicharan Benudhar
| |
____________________________________|__________ Balabhsdra
| | | |
Naran Biswanath Sribatchs Shyamsndar
_______________________ | (Plff.)
| | | |
Pranababdhu Indumati Sushila |
(D.2) (D.3) (D.4) |
__________________________|_______________________________________________ | | | | | | | Mohnini Madan Naba Kishore Oukhabandhu Ketaki Andei (D.5) (D.6) (D.7) (D.8) (D.9) (D.10) (D.11) (D.12)
3. The plaintiff-respondent Nos. 1 to 10's case in short is that one Purusottam Mishra who was the common ancestor of the plaintiffs as welt as defendants 1 to 13 and others was the owner of the suit properties. He had four sons namely Nada, Govinda, Nanda and Bhagirathi. Out of those four sons, it is the admitted case of both parties that Nada and Govinda died unmarried. Nanda had only one daughter namely Srimati. After marriage of Srimati, her parents died. Therefore, Bhagirathi claimed the entire properties by survivorship and possessed the same in his own right as the sole owner The record of rights also stood recorded in his name. Bhagirathi had two sons namely Kalicharan and Benudhar. Kalicharan had four sons namely Naran, Biswanath, Sribatcha (Plaintiff) and Shyamsundar, (Defendant No. 1). His first son Naran had three issues namely Pranabandhu, Indumati and Sushila who are the defendants 2 to 4 respectively. Naran died leaving behind defendants 2 to 4. Kalicharan engaged/accommodated one Chaitanya Khandapatra over Ac. 2.50 decimals of land out of Plot No. 342 as his field labourer. After the death of said Chaitanya Khandapatra, his son Banamali had filed a case under O.L.R. Act for settlement of the aforesaid land in his name for which he was impleaded as a defendant. But the same was rejected by the Tahasildar, Keonjhar after stiff resistance by defendant No. 1. Biswanath, another son of Kalicharan had 7 issues, who have been arrayed as defendants 5 to 12 and claimed their share from the suit properties through Biswanath. Similarly the original plaintiff Sribatcha claimed 1/4th share in the suit property. Appellant Shyamsundar, son of Kalicharan disputed the share of Sribatcha (Plaintiff). After the death of Kalicharan the other brother Benudhar filed a suit being Title Suit No. 41 of 1960, for partition in the year 1960 claiming 1/2 share over the entire property left by Purusottam. But during pendency of the suit the parties to that suit entered into a compromise out of Court in which Benudhar was allotted 1/2 share and accordingly on the basis the terms of compromise the suit was dismissed.
4. In the record of rights of current major settlement some lands were said to have been wrongly recorded in the name of Benudhar although he was dead by that time. One Balabhadra Mishra who was alleged to have been adopted by Benudhar and added as Defendant No. 13 claimed the share of Benudhar. Although Defendant No. 13 was not added as a party in the beginning but for complete and effective adjudication of the case he has been subsequently impleaded as a respondent in this appeal.
5. After the death of original plaintiff Sribatcha, respondents 1 to 10 have been impleaded as his legal representatives. Biswanath Mishra, another son of Kalicharan, is purported to have sold Ac. 2.06 decimals of land to one Saraswati Devi without executing a sale deed. The said land was/has been in possession of the plaintiffs. So Saraswati Devi has been made a party in this case. Some other defendants claimed to have purchased some lands from other co-sharers, therefore, they were joined as defendants in the suit. Since there was no partition by metes and bound and the parties have been enjoying the moiety of the lands according to their own convenience, therefore, the plaintiffs have filed the suit for partition and allotment of 1/4th share from the joint family properties. Some lands were donated for construction of a School in or about 1948. So the President and Secretary of the School have been impleaded as parties.
6. The original plaintiff was in possession of the suit land and in a portion of the said land he constructed a house in village Madhapur to facilitate cultivation. But since the defendants did not agree to effect the partition amicably, therefore, the original plaintiff was obliged to file a suit for partition and separate possession. After the death of original plaintiff, respondents 1 to 10 were impleaded as his heirs and successors.
Defendant No. 1 who is the appellant in this case has inter alia stated that the suit for partition is not maintainable without a prayer for declaration of right, title and interest over the suit land. The original plaintiff's father's name has been wrongly and mischievously described as Kalicharan as he was given in adoption to one Nisakar Mishra. Therefore, his father's name should have been described as Nisakar Mishra but not "Kalicharan Mishra". There has been a partition between the branch of Kalicharan and Benudhar. Benudhar died in the year 1980. During his life time, he disposed of all his properties which fell to his share. Therefore, the properties possessed by Benudhar could not have been included in the suit.
7. The original plaintiff was taken in adoption by Nisakar Mishra and he was living in his house as his son till the death of Nisakar. He also mortgaged some of the properties of Nisakarto one Loknath Behera and redeemed the same. Once again, he mortgaged some land to Ramlal Sahu of Bihar. But with a mischievous intention he laid claim over the mortgaged properties through his adoptive mother Ambika and filed a fictitious suit being T.S. No. 8 of 1962 to declare the mortgage invalid. The said suit being a collusive one and as Ramlal Sahu being a man of Bihar, could not prove the adoption of the original plaintiff by Nisakar, therefore, the said suit is decreed. But as a latter of fact the original plaintiff was the adopted son of Nisakar. Therefore, he could not have laid any claim over the properties of Kalicharan. Immediately after the decree was passed in T.S. No. 8/62 Ambika, the adoptive mother of the original plaintiff executed a gift deed in favour of Hiramani Devi, the wife of original plaintiff. The findings in T.S. No. 8/62 do not bind the defendant No. 1 inasmuch as he was neither a party to the suit nor the fact of adoption was decided properly in the said suit.
8. In the year 1960 Benudhar filed a suit for partition against the sons of Kalicharan. Since the original plaintiff did not have any interest over the said properties he was left out in the suit, but the original plaintiff with a mala fide motive filed an application to be impleaded as a party, but before the matter was heard the suit was dismissed for default. The original plaintiff has clandestinely in collusion with the Settlement Authorities might have recorded some lands in his name while defendant No. 1 was in Rourkela. Therefore, he could not know about the settlement of land in respect of village Madhpur. With these averments defendant No. 1 claimed dismissal of the suit.
9. The main ground of attack by defendant No. 1 is that T.S. No. 8/62 filed by the alleged adoptive mother of the original plaintiff was a collusive one and, therefore, it did not bind him. There is no evidence whatsoever led by defendant No. 1 to prove that the suit filed by Ambika was a collusive one. Defendant No. 1 has neither filed any documentary evidence nor adduced any oral evidence in order to prove such fact in issue with regard to collusion. So the trial court after discussing the import of the judgment in T.S. No. 8/62 held that there was no fraud or collusion between Ambika and Ramlal. The original plaintiff executed a mortgage deed in favour of the defendant No. 1 in T.S. No. 8/62, therefore, it necessitated Ambika to seek a declaration that the mortgage deed executed by the original plaintiff was not legal, valid and binding on her. True it is that the findings rendered In T.S. No. 8/62 cannot operate as res judlcata fn a subsequent suit inasmuch as the defendant No. 1 was not a party in T.S. No. 8/62. But as a matter of fact on teeth of severe contest the court had to render a finding that there was no adoption either by Ambika or her husband. Therefore, the self-styled adoption claimed by the original plaintiff was neither legal, nor valid or binding on Ambika, The adoptive mother denied the adoption in T.S. No. 8/62, The adoptive father was not then alive. The natural parents of defendant no. 1 had not been examined to support the plea of adoption fn the former suit. Defendant No. 1 claims a right through his father. When his predecessors in interest never supported the plea of adoption, it is not open for the defendant No. 1 to advance such a plea of adoption. The above suit was contested till this Court by filing an appeal by Ramlal. One of the co-sharers of defendant No. 1 was a party to the suit in T.S. No. 8/62, but he too did not support the plea of adoption. The Subordinate Judge, Keonjhar as well as this Court had, therefore, held that the original plaintiff Sribatcha was not the adopted son of Ambika and Nisakar. The trial Court judgment albeit does not bind the defendant No. 1 as res judicata but the findings arrived at in the former suit that there was an issue regarding the validity of adoption and decided against the original plaintiff can be taken as a piece of evidence. Thus the trial Court in this background rightly held that there was no collusion in the suit filed by Ambika against Ramlal. It does not also stand to reason why Ramlal could collude with Ambika when his interest is adversely affected.
10. The appellant had taken a plea in his statement that the original plaintiff Sribatcha was given in adoption to Nisakar and Ambika. The original plaintiff on the contrary had seriously disputed that he was the adopted son of Nisakar and Ambika. Apart from the findings in the earlier suit in a negative manner that Sribatcha was the adopted son, there was no other document worth while to arrive at a conclusion that Sribatcha was given in adoption to Nisakar, No evidence has been led by the appellant that Sribatcha was the adopted son of Nisakar. It is hardly disputed between the parties that the birth of the original plaintiff had taken place in twice-born class. Therefore, it is obligatory on the person who pleads adoption to establish that apart from giving and taking ceremony there must be a "Datta Homa". It is nonetheless true that the burden lies on a person who claims that there is an adoption so that the line of natural succession can be displaced. Creation of any document by itself would not establish that there was valid adoption. According to defendant No. 1 the adoption had taken place much before the Hindu Adoption & Maintenance Act, 1956 came into force, Mere description in settlement record or in any other contemporaneous document also may not be sufficient to conclusively hold or prove the adoption. Defendant No. 1 examined as D.W. 3 made a categorical admission that apart from Biswanath Sarangl of Gopinathpur other relations were dead. The priest and astrologer were also dead. It has been brought out in cross-examination that while the plaintiff Sribatcha was five years old he was given In adoption. He has not seen the giving and taking ceremony. Biswanath Sarangi has been examined as D.W. 4. From his evidence it was elicited that he has not seen the giving and taking ceremony of adoption of Sribatcha. So on a cumulative study of evidence of P.Ws. 3 and 4, there leaves no room for doubt that defendant No. 1 could not lay any foundation with regard to adoption of Sribatcha to Nisakar. Some documents have been filed to show that the original plaintiff was given in adoption to Nisakar, but those documents had been considered in the earlier suit and after such discussion the Subordinate Judge as well as this Court held that there was no adoption and those documents could not act as a substitute of actual giving and taking ceremony.
11. It is true that in a case of ancient adoption where all other evidence has been obligerated, the Court has to consider the factum of adoption only on the basis of contemporaneous documents and possession of the properties left by the adoptive parents. But in this case defendant No. 1 did not however satisfy that all the evidence were extinct by lapse of time. Rather D.W. 4 was cited as a witness to the adoption, but unfortunately he claimed ignorance of such adoption. Therefore, the trial court in our opinion, had correctly held that defendant No. 1 did not lay any foundation with regard to adoption of Sribatcha to Nisakar.
12. Mere possession of the properties left by Nisakar would not constitute an adoption. In this case Ambika, the wife of Nisakar had executed a deed of gift in favour of the wife of original plaintiff. Therefore, it is normally expected that the wife of original plaintiff must have been in possession by virtue of a deed of gift Exts. 12 and 14 which are judgments of the Subordinate Judge, Keonjhar and also of this Court unequivocally suggested that there was no adoption, which can be otherwise accepted as a piece of evidence negating the plea of adoption advanced by the appellant.
13. The appellant further pleaded that Kalicharan divided his landed properties among his three sons, namely, Naran, Biswanath and Shyamsundar as Sribatcha was given in adoption to Nisakar. On the other hand the plaintiffs claimed that there was no partition. Since there has been a presumption of jointness, the persons who advanced a plea of partition must by clear, cogent and unequivocal evidence establish that there was a prior partition. In this case the appellant had taken a plea of prior partition. Defendant No. 1 was examined as D.W. 3. The plea of prior partition was, however, disbelieved by the Courts below. Not a single piece of oral or documentary evidence was produced before the trial Court. There has been no evidence to suggest that the parties were separately possessing the land after effecting partition. The record-of-rights stands recorded jointly. Had there been any prior partition and allotment of specific share to Naran, Biswanath and defendant No. 1, certainly there could have separate entry in the record-of-rights. Therefore, the trial court had correctly held that the theory of previous partition by Kalicharan in favour of three sons excluding the original plaintiff was untenable.
14. The sale deeds executed by late Biswanath in favour of defendant No. 24 and the sale deed executed in favour of defendant No. 20 have been held to be not genuine. Since they have not filed any independent appeal, therefore, we are not in a position to go in detail with regard to validity of those sale deeds. Similarly defendants 29 and 31 were held not to have prescribed any title by adverse possession. With regard to the share of the plaintiffs, there has been no dispute raised by the appellant.
15. In the ultimate analysis of the facts and circumstances of the case, we are, however, inclined to dismiss the appeal, but in the circumstances, parties are to bear their own costs.
M. Papanna, J.
I agree.