Orissa High Court
Debahari Behera .Dead And Others vs Dhruba Behera on 9 April, 2018
Author: A.K.Rath
Bench: A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
SA No.113 of 1991
From the judgment and decree dated 19.01.1991 and 19.03.1991
respectively passed by Sri A.K.Dutt, learned 1st Addl. District Judge,
Berhampur in T.A No.10/90 (T.A 31/89 GDC) reversing the judgment and
decree dated 13.11.1987 and 25.11.1987 respectively passed by Sri S.S.
Mishra, learned Subordinate Judge, Berhampur in T.S. No.71 of 1983.
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Debahari Behera (dead) & others .... Appellants
Versus
Dhruba Behera .... Respondent
For Appellants ... Mrs. Jyotsnamayee Sahoo, Adv.
For Respondent ... None
JUDGMENT
PRESENT:
THE HONOURABLE DR. JUSTICE A.K.RATH
Date of hearing: 27.03.2018 : Date of judgment: 09.04.2018
Dr. A.K.Rath, J Defendants are the appellants against a reversing
judgment.
2. Plaintiff-respondent instituted the suit for declaration of
title, declaration that the sale deeds dated 2.2.1963 and 25.3.1981
are null and void, recovery of possession in the event he is
dispossessed during pendency of the suit and permanent injunction.
Case of the plaintiff is that he is the natural born son of Dandasi
Behera. His father died on 24.2.1982. Dandasi sold all his ancestral
properties and house to Arakhit Behera maternal uncle of Dandasi
by means of a registered sale deed dated 3.12.1956. Arakhit had no
2
issue. He adopted plaintiff and executed a deed of adoption on
2.11.1957. Arakhit was addicted to liquor. Apprehending that the properties will be squandered away, he executed a nominal sale deed dated 2.2.1963 in respect of Schedule-A properties in favour of his nephew Bika Behera, father of defendant no.1 at the instance of later. No consideration was paid, nor possession was delivered to Bika. While the matter stood thus, Bika executed a "Panchayat Haka Tyaga Patra" (deed of relinquishment) in favour of the plaintiff admitting the adoption of the plaintiff and execution of nominal sale deed. Defendants have no semblance of right, title and interest. They created disturbance over the possession of the plaintiff. In the proceeding under Sec. 145 Cr.P.C between the parties, the defendants 2 and 3 claimed to have purchased Item No.1 of Schedule-B land and defendant no.5 claimed to have purchased Item No.2 of Schedule-B land from defendant no.1 by means of registered sale deeds. Defendant no.1 also claimed that his father Bika purchased Schedule-A land from Arakhit by means of a registered sale deed dated 2.2.1963. The sale deeds being devoid of consideration are void.
3. Defendant no.1 filed a written statement stating, inter alia, that the plaintiff is not the adopted son of Arakhit. The deed of adoption is void and inoperative. The sale deed is genuine and supported by consideration. The plaintiff was not in possession of the suit land. After sale, Bika was in possession of the suit land. Thereafter, defendant no.1 is in possession of the suit land. He is not aware of any deed of relinquishment. The same is tailor-made. He sold the suit land to defendant nos.2,3 and 5 and delivered possession. A part of the suit land has been settled in favour of his father Bika under the provisions of the Orissa Estate Abolition Act ("OEA Act").
34. Defendants 2 to 5 filed a written statement pleading, inter alia, that the suit land belonged to defendant no.1. They purchased a portion of it by means of registered sale deeds for a valid consideration. Possession of the land was delivered to them.
5. On the inter se pleadings of the parties, learned trial court struck eleven issues. Learned trial court came to hold that the plaintiff is not the adopted son of Arakhit. The sale deed executed by Arakhit in favour of Bika was not nominal one. The deed of relinquishment having not been registered cannot over ride the sale deed in favour of Bika. The sale by defendant no.1 in favour of defendant nos.2 to 5 is valid and genuine. Recovery of possession was barred by limitation. Held so, it dismissed the suit. Feeling aggrieved, the plaintiff appealed before the learned District Judge, Berhampur, Ganjam, which was transferred to the learned 1st Addl. District Judge, Berhampur, Ganjam and renumbered as T.A No.10/90 (T.A No.31/89 GDC). Learned appellate court allowed the appeal holding, inter alia, that the plaintiff is the adopted son of Arakhit. The sale deed executed by Arakhit in favour of Bika is nominal one. No title has passed. Plaintiff is the owner in possession of the suit property. It is apt to state here that during pendency of the appeal, defendant no.1 and defendant no.4 died, whereafter their legal heirs have been substituted.
6. The second appeal was admitted on the following substantial questions of law;
"1. Whether the lower appellate court was justified in accepting the plea of adoption ?
2. Whether evidentiary value of Ext.C has been considered in its proper perspective ?
7. Heard Mrs. Jyotsnamayee Sahoo on behalf of Mr. Manoj Kumar Mishra, learned Senior Advocate for the appellants. None appeared for the respondent.
48. Mrs. Sahoo, learned counsel for the appellants submitted that the plaintiff is the adopted son of Arakhit. Arakhit executed a deed of adoption on 2.11.1957 in favour of the plaintiff. Arakhit was addicted to liquor. He executed a nominal sale deed dated 2.2.1963, vide Ext.3, in favour of Bika. The execution of nominal sale deed is fortified with facts that defendant no.1 executed a deed of relinquishment on 4.4.1963 vide Ext.4. Learned trial court, on a threadbare analysis of the evidence on record and pleadings, dismissed the suit, but the learned appellate court reversed the judgment on untenable and unsupportable grounds. She further contended that the part of the suit property has been settled in favour of Bika in OEA Case No.982 of 1980 on 28.8.1981 vide Ext.C. There is no prayer to set aside the order.
9. According to the plaintiff, he is the natural born son of Dandasi. Arakhit is the maternal uncle of Dandasi. Arakhit had no issue. He adopted the plaintiff and executed a deed of adoption dated 2.11.1957 vide Ext.2. The instant case is not a case of ancient adoption. One of the witness to the adoption ceremony was examined by the plaintiff.
10. The apex court in the case of Kishori Lal v. Mt. Chaltibai , AIR 1959 SC 504, held that as an adoption results in changing the course of succession, depriving wives and daughters of their rights and transferring properties to comparative strangers or more remote relations it is necessary that the evidence to support it should be such that it is free from all suspicion of fraud and so consistent and probable as to leave no occasion for doubting its truth.
11. For a valid adoption, the physical act of giving and taking is a sine qua non as held by the apex Court in the case of Madhusudan Das v. Smt. Narayani Bai, AIR 1983 SC 114.
512. In Bauri Dei and others v. Dasarathi Sahu and others, Vol.XLI (1975) CLT 267, this Court held that the creation of documents is not substitute for the fact of giving and taking which must be proved independently de hors any document.
13. 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.
xxx xxx xxx
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."
14. P.W.1 plaintiff stated that Sevak Behera and Kandha Behera were present at the time of adoption ceremony. They have not been examined as witnesses. P.W.1 stated that Gadiga Behera (P.W.2) was present at the time of ceremony. But then, Gadiga Behera (P.W.2) stated that he was not present in the house of Arakhit. Though learned appellate court came to a finding that "Thus I find no independent witness has stated about this giving and taking ceremony supporting the version of P.W.1 the plaintiff", but then it came to an abrupt conclusion that "There was no document of adoption but only a deed acknowledging the fact of adoption which was also found suspicious. But here there is evidence of P.W.1 plus the registered adoption deed 6 and the deed of acknowledgment. So the plaintiff is the adopted son of Arakhit". The judgment suffers from internal inconsistency.
15. Plaintiff failed to prove that there was a giving and taking ceremony. The creation of documents is not substitute for the factum of giving and taking which must be proved independently. Further, in the voter list vide Ext.M, the plaintiff has described as the son of Dandasi. The appellate court fell into patent error in placing reliance on deed of relinquishment. The value of the suit property was more than Rs.100/- as held by the appellate court. The deed of relinquishment vide Ext.4 is not registered one. Though it came to a finding that the oral evidence from both the sides are not convincing, but then it held that the sale executed by Arakhit in favour of Bika is nominal one.
16. A part of the suit property was settled in favour of Bika Behera by the OEA Collector in OEA Case No.982 of 1980 vide Ext.C. The order has attained finality. There is no prayer to set aside the order.
17. In State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth, Naduvil (dead) and others, AIR 1996 SC 906, the apex Court held as follows:
".... In our opinion, 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. 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 and in this case, the only complaint about the initiation of the suo moto proceedings by Board was, that it was not initiated on intimation by the State Land Board about the non- filing of the statement as required by Section 85(7) of the Kerala Land Reforms Act. In our opinion, this is not a case where the infirmity is fundamental. It is unnecessary to consider the matter further.7
18. The inescapable conclusion is that the plaintiff is not the adopted son of Arakhit. The sale deed dated 3.12.1956 executed by Dandasi in favour of Arakhit is legal and valid. The substantial questions of law are answered accordingly.
19. In the wake of the aforesaid, the impugned judgment is set aside. The appeal is allowed. There shall be no order as to costs.
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DR. A.K.RATH, J Orissa High Court, Cuttack.
Dated the 9th April, 2018/Pradeep