The High Court
Case Details
IN THE HIGH COURT OF ORISSA : CUTTACK RSA No.332 of 2016 In the matter of an Appeal under Section-100 of the Code of Civil Procedure assailing the judgment and decree passed by the learned Additional District Judge, Bhubaneswar in RFA No.15 of 2006 in confirming the judgment and decree passed by the learned 2nd Additional Civil Judge (Senior Division), Bhubaneswar in C.S. No.08/98 of 2005-2004. ……… Narendra Swain :::: Appellant -:: VERSUS ::- Bhagabat Basudev Bije & Others :::: Respondents Advocate(s) who appeared in this case by hybrid arrangement (virtual/physical) mode. ----------------------------------------------------------------------------------------- For Appellant
Legal Reasoning
… Mr. B.C. Panda, Advocate For Respondents … -- CORAM : MR. JUSTICE D.DASH ------ --------------------------------------------------------------------------------------- Date of Hearing 14.11.2023 :: Date of Judgment:04.12.2023 --------------------------------------------------------------------------------------- D.Dash,J. The Appellant, by filing this Appeal, under Section 100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’), has assailed the judgment and decree dated passed by the learned Additional District Judge, Bhubaneswar in RFA No.15 of 2006. {{ 2 }} The Appellant as the Plaintiff had filed C.S. No.08/98 of 2005- 2004 in the Court of the 2nd Additional Civil Judge (Senior Division), Bhubaneswar. The suit was filed seeking the relief of declaration of right, title, interest and possession of the Appellant (Plaintiff) over the suit schedule land as the adopted son of Kapila Swain, the original owner of the suit properties arraigning the Respondents as the Defendants therein. It was further asserted that the right, title and interest over the suit property as claimed by the Defendant No.1 on the basis of registered sale deed dated 20.11.1993 executed by Sura Jena, the sister’s son of Kapila Swain is baseless and, therefore, the consequential actions carried out in the record relating to the suit land are also illegal. The suit having been dismissed, the present Appellant (Plaintiff) had carried the Appeal under section 96 of the Code, which too has been dismissed. Hence the instant Second Appeal is at the instance of the Appellant (Plaintiff) who has been non-suited by both the courts below. 2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Trial Court. 3. Plaintiff’s case is that the suit land belonged to Kapila Swain who died on 01.11.1979 and his wife had predeceased him. It is stated that since Kapila and his wife had no son born out of their wedlock, after the death of the wife of Kapila, he requested the Page 2 of 8 {{ 3 }} natural father of the Plaintiff, namely, Dhadu Sahani to give the Plaintiff in adoption. Accepting the proposal of Kapila, Dhadu gave the Plaintiff who is his second son in adoption to Kapila. The adoption was made by performance of giving and taking ceremony in presence of the common relatives and family members on 10.02.1970, the auspicious day of Saraswati Puja. It is stated that the Plaintiff at the time of adoption was around 13 years old and his original name was changed by his adoptive father Kapila from Sridhar Sahani to Narendra Swain. The Plaintiff was brought up and taken care of by Kapila in his family and he stayed with him. On 05.04.1972, Kapila executed a deed acknowledging the adoption of the Plaintiff which had taken place on 10.02.1970. After the death of Kapila, the Plaintiff filed a mutation case on the basis of having succeeded to the property of Kapila as his adopted son. That mutation case stood numbered as Mutation Case No.691 of 1990. It was, however, dismissed since the name of Defendant No.1 was found to have already been substituted in the record of right pursuant to the order passed in Mutation Case No.8854 of 1993 basing upon the sale deed executed by Sura Jena, the sister’s son of Kapila on 20.11.1993 in favour of Defendant No.1. The Plaintiff then carried the Mutation Appeal as also filed the Revision when Appeal failed. Being unsuccessful in those forums, the suit came to be filed. Page 3 of 8 {{ 4 }} 4. The Defendants in their written statement besides taking the plea as to non-joinder of necessary parties; the suit being hit for non-compliance of the provision of Order 1 Rule 8 of the Code have stoutly denied the claim of the Plaintiff to be the adopted son of Kapila Swain. The deed of acknowledgement of adoption as projected is said to be void and a created one which during the lifetime of Kapila had been cancelled by Kapila himself. It is said that Sura Jena and his brother Laxmidhar Jena being the nephews (sister’s son ) of Kapila have succeeded to the properties left by Kapila and they have duly executed the sale deed in favour of the Defendant No.1 transferring the property in suit and, therefore, they state that the Plaintiff has absolutely no right, title and interest over the suit land. 5. The Trial Court on the above rival pleadings has framed the following issues:- “(i) Whether the suit is maintainable? (ii) Whether the suit is bad for non-joinder of necessary party? (iii) Whether the suit is barred by law of limitation? (iv) Whether the suit is hit under Order 1 Rule 8, C.P.C.? (v) Whether the Plaintiff the adopted son of Kapila Swain, thereby he perfected his title over the suit schedule land left by Kapila? Page 4 of 8 {{ 5 }} (vi) To what other relief, the Plaintiff is entitled?” 6. On examination of evidence and their assessment in the touchstone of the rival pleadings, the Trial Court has answered all these issues against the Plaintiff. The Plaintiff thus being non-suited having carried the First Appeal has again been unsuccessful in getting any of these findings set-at-naught. 7. Mr. B.C. Panda, learned counsel for the Appellant (Plaintiff) submitted that the finding of the Courts below that the Plaintiff is not the adopted son of Kapila Swain suffers from the vice of perversity. According to him, on the face of overwhelming evidence on record, both oral and documentary, the Courts below culling out very flimsy reasons, which are answered the said issue against the Plaintiff. He, therefore, urged for admission of this Appeal to answer the above as the substantial question of law. 8. Keeping in view the submission made, I have carefully read the judgments passed by the Courts below. I have perused the plaint and written statement and have gone through the evidence let in by the parties. 9. It is the well settled position of law that when a claim of adoption made by a person faces the challenge, the onus lies on the person who claims adoption to prove the same by leading all such clear, cogent and acceptable evidence in support of adoption Page 5 of 8 {{ 6 }} including the evidence with regard to the factum of giving and taking ceremony. It is equally well settled that giving and taking ceremony is a must for the adoption to be valid and the party who is trying to sustain the adoption is to prove the same by repelling all such suspicious surrounding circumstances, fraud etc., and that should be consistent and probable leaving no room to doubt the truthfulness of the factum of adoption. The above strict rule is because of the reason that acceptance of such a claim of adoption deflects the natural line of succession. As regards the nature of proof, that should be free from suspicion and the documents cannot substitute the proof of formalities by which adoption is required to be established but may only stand to corroborate. 10. The Plaintiff in para-2 of the plaint has pleaded that adoption had taken place on 10.02.1970. But in the entire plaint, there is no pleading with regard to giving the Plaintiff in adoption by his natural parents to Kapila. It is also not pleaded that at the relevant time, the natural mother of the Plaintiff was not competent to join the natural father of the Plaintiff, namely, Dhadu in giving her son, the Plaintiff in adoption to Kapila which is one of the most important suspicious circumstance which has not been repelled as giving of adoption of a child by father alone when mother is also living has to be taken to be without her consent and as such invalid from the inception. Page 6 of 8 {{ 7 }} The deed of acknowledgment of adoption admitted in evidence and marked Ext.3 cannot be taken to be the substitute of the proof of factum of performance of the ceremony of giving and taking in the said adoption. This document at best may provide some corroboration to the evidence as to the giving and taking when that fact is otherwise established through clear, cogent and acceptable evidence in a higher degree. This document again faces serious criticism as to grave suspicion that when the natural parents of the Plaintiff were living on that day of execution of Ext.3, they could have been very well associated with the same which would have provided strength to the claim of the Plaintiff as like a document of adoption carrying presumption as to adoption. The execution of Ext.3 being challenged, the document has also been cancelled by another deed by said Kapila indicating as to under what circumstance that Ext.3 had been taken from him and created. With all these features appearing in evidence without going to further discuss other lot many deficiencies pointed out by the Courts below, with regard to the case/claim of the Plaintiff in the direction of its non-establishment, this Court is not in a position to accept the submission of the learned counsel for the Appellant (Plaintiff) that there arises the substantial question of law for being answered as pointed out above meriting admission of this Appeal. Page 7 of 8 {{ 8 }} 11. Accordingly, the Appeal stands dismissed. No order as to cost. (D. Dash), Judge. Himansu Signature Not Verified Digitally Signed Signed by: HIMANSU SEKHAR DASH Reason: Authentication Location: OHC Date: 03-Jan-2024 12:48:23 Page 8 of 8