The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 351 OF 2015 Biswajit Bose and others Petitioners Mr. Suresh Chandra Mohanty, Advocate …. -versus- Amaresh Sarkar and others …. Opp. Parties Mr. Bibekananda Bhuyan, Advocate (For Opp. Party No.1) CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 15.02.2023 14. 1. This matter is taken up through hybrid mode. 2. The Petitioner in this CMP seeks to assail the order dated 16th September, 2014 (Annexure-4) passed by learned 1st Additional Civil Judge (Senior Division), Cuttack in T.S. No.223 of 1995, whereby an application for analogous hearing of T.S. No.223 of 1995 along with C.S. No.97 of 2005 filed by the Plaintiffs-Petitioners, has been rejected. 3. Mr. Mohanty, learned counsel for the Petitioners submits that the issue involved in both the suits, i.e., T.S. No.223 of 1995 filed by the present Petitioners and C.S. No.97 of 2005 filed by one, Smt. Jyostna Das centers around adoption of Amaresh Sarkar-Defendant No.1 in T.S. No.223 of 1995 by Chandan Bilasini Dasi. It is his submission that T.S. No.223 of 1995 has been filed by the Present Petitioners for declaration of right, title and interest on the plea that the suit land was gifted to their mother on the marriage altar by Chandan Bilasini Dasi. In the said suit a specific plea has been taken that Amaresh Sarkar- Defendant No.1 is not adopted by Chandan Bilasini Dasi. Likewise C.S. No. 97 of 2005 filed by one, Smt. Jyostna Das, Page 1 of 4 // 2 // wherein the adoption of Amaresh Sarkar by Chandan Bilasini Dasi is in question. Hence, an application was filed for analogous hearing of both the suits. But, learned trial Court without realizing that the issue involved in both the suits are same, refused to entertain such application on the ground that parties to the suit are different and relief sought for in both the suits are also different. Hence, he prays for setting aside the impugned order under Annexure-4 and to direct learned trial Court to heard T.S. No.223 of 1995 along with C.S. No.97 of 2005. 4. Mr. Bhuyan, learned counsel for the Opposite Party No.1 submits that adoption of Amaresh Sarkar-Opposite Party No.1 by Chandan Bilasini Dasi is no more res integra. It is his submission that Chandan Bilasini Dasi along with Amaresh Sarkar filed T.S. No.50 of 1966 with a prayer to declare the adoption of Amaresh Sarkar by Chandan Bilasini Dasi to be valid and binding as well as to set aside the sale deed executed in favour of Aftabuddin Khan and others to be null and void. The said suit was dismissed. Assailing the same, Chandan Bilasini Dasi and Amaresh Sarkar preferred F.A. No.16 of 1968 before this Court, which was decreed in their favour. Against the said judgment and decree, A.H.O. No.30 of 1975 was preferred by said Aftabuddin Khan and others and the said A.H.O. was allowed by a Division Bench of this Court. Being aggrieved, Chandan Bilasini Dasi and Amaresh Sarkar preferred Civil Appeal No.1245 of 1977 before the Hon’ble Supreme Court. Said Aftabuddin Khan and others also preferred Civil Appeal No. 2462 of 1977. Both the appeals were heard analogously and were disposed of by a common judgment, which is reported in (1997) 7 SCC 13, wherein it is held as under: Page 2 of 4 // 3 // “5. Looking to the entire evidence which is on record which goes to establish that adoption took place by the ceremony of giving and taking, we hold that there was a valid adoption of the respondent Amaresh Sarkar by the original first-plaintiff Chandan Bilasini Dasi. After the coming into force of the Hindu Adoptions and Maintenance Act of 1956, this adoption was made in accordance with the provisions of Hindu Adoptions and Maintenance Act. 6. On adoption of the respondent Amaresh Sarkar by the widow of the deceased Kalikrishna Sarkar, the adopted son Amaresh Sarkar sevared his ties with his natural family and became a part of the adoptive family. As such, Chandan Bilasini Dasi became his mother and Kalikrishan became his deceased father. Section 12 of the Hindu Adoptions and Maintenance Act clearly provides that an adopted child shall be deemed to be the child of his adoptive father or mother for all purposes with effect from the date of the adoption and from such date all ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family. As a consequence, when a widow adopts a child, the child not merely acquires an adoptive mother but also acquires other relationships adoptive family, unless there is anything to the contrary in the Hindu Adoptions and Maintenance Act.’’ the in 5. He, therefore, submits that the issue of adoption of Amaresh Sarkar by Chandan Bilasini Dasi is no more res integra. Further no property is involved in C.S. No.97 of 2005. Only the adoption of Opposite Party No.1 by Chandan Bilasini Dasi is in question therein. Parties to both the suits are also different. The Plaintiff in C.S. No.97 of 2005, namely, Smt. Jyostna Das is not a party to T.S. No. 223 of 1995. Cause of action for both the suits is also different. Although a plea was raised by the Plaintiffs that Amaresh Sarkar-Defendant No.1 is not the adopted son of Chandan Bilasini Dasi, but the same requires no consideration in view of the aforesaid case law of Hon’ble Supreme Court. Hence, learned trial Court has committed no error in dismissing the petition for analogous hearing of both the suits, as aforesaid. Page 3 of 4 // 4 // 6. Considering the rival contentions of the parties and on perusal of the record, it appears that the adoption of Amaresh Sarkar by Chandan Bilasini Dasi is no more res integra, as has been held in the case of Chandan Bilasini (supra). Thus, the basis, on which the Plaintiffs-Petitioners claim analogous hearing of T.S. No.223 of 1995 along with C.S. No. 97 of 2005 no more survives. It further appears that parties to the suits are also not same. The Plaintiff in C.S. No.97 of 2005, namely, Smt. Jyostna Das is not a party to T.S. No.223 of 1995. In one hand, T.S. No.223 of 1995 is filed for declaration of the right, title and interest and on the other, C.S. No.97 of 2005 has been filed questioning the adoption of Amaresh Sarkar by one Chandan Bilasini Dasi. No property, whatsoever, is involved in C.S. No.97 of 2005. In that view of the matter, learned trial Court has committed no error in dismissing the petition for analogous hearing of both the suits. 7. Accordingly, the CMP being devoid of any merit stands dismissed. 8. Interim order dated 31st July, 2015 passed in M.C. No.335 of 2015 stands vacated. 9. Since the suit is of the year, 1995, learned trial Court should make an endeavour for early disposal of the suit, if necessary by following the procedure under Order XVII Rule 1 C.P.C. Urgent certified copy of this order be granted on proper application. ms (K.R. Mohapatra) Judge Page 4 of 4