Dismissed

Ichha Barik v. Natabar Barik

Orissa HC14 Mar 2019RSA/66/2005

Case brief

AI extract

What is this about?

The High Court of Orissa allowed a second appeal in a title suit involving alleged adoption and land consolidation records. The Court held that the Civil Court has jurisdiction despite Section 51 of the Consolidation Act and dismissed the appeal, finding the lower court's refusal to recognize the adoption was not perverse given the lack of evidence of 'giving and taking' ceremony.

What did the court decide?

Appeal dismissed; lower courts' findings regarding adoption and consolidation record upheld.

Ichha Barik Vs Natabar Barik — Property and Title | Orissa HC (2019)

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HIGH COURT OF ORISSA: CUTTACK

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R . S.A.No.66 of 2005

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From the judgment and decree dated 9.11.2004 & 19.11.2004 passed by Mr.S.K.Dhal, learned District Judge, Cuttack in R.F.A.No.73 of 2003 confirming the judgment and decree dated 13.5.2003 & 16.5.2003 passed by the learned Civil Judge (Sr.Division), Cuttack in Title Suit No.152 of 2001.

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------------Ichha Barik and others …. Appellants Versus Natabar Barik (Dead) through his L.Rs and others …. Respondents For Appellants -- Mr.Bhabani Sankar Panigrahi, Advocate For Respondents-Mr.Niranjan Prasad Patra, Advocate (For R.1)

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J U D G M E N T

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PRESENT:

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THE HONOURABLE DR. JUSTICE A.K.RATH Date of Hearing & Judgment:14.03.2019

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Dr.A.K.RATH, J. Plaintiff is the appellant against a confirming judgment in a suit for declaration of title, entry in the consolidation R.O.R. is wrong, recovery of possession, permanent injunction and damages.

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The following genealogy would show the relationship of the parties.

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Dhobei (dead)
=Rama (Dead)
Bata (dead) Nata Hema (daughter)
=Ichha (Deft.No.1) = Kusa (husband)
(Pltf.No.1)
Maheswar Kanchan
(Pltf-6) (Pltf.7)
Mina Rabi Deba Reena
(Pltf-2) (Pltf-3) (Pltf-4) (Pltf-5)
(died as bachelor)

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The case of the plaintiff is that Nata, defendant no.1 has been adopted to Sridhar Barik of village Mallikapur. Sridhar executed a registered deed of adoption on 4.8.1947, vide Ext.1. After death of Sridhar, he sold some of the properties of his adoptive father by means of a registered sale deed dated 24.9.1960, vide Ext.3. In connivance with the consolidation authorities, he managed to record his name in the consolidation R.O.R. suppressing the fact that he is the adopted son of Sridhar.

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Defendant no.1 entered contest and filed written statement denying the assertions made in the plaint. The case of defendant no.1 is that he is the son of Dobei. He has not been

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adopted to Sridhar. The consolidation authorities have correctly recorded his name along with his brother.

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On the inter se pleadings of the parties, learned trial court framed eleven issues. Parties led evidence, oral and documentary. Learned trial court came to hold that since the consolidation R.O.R. has been published jointly in the name of Nata and Bata, it is presumed that they are the sons of Dobei. Held so, it dismissed the suit. Unsuccessful plaintiff filed R.F.A.No.73 of 2003 before the learned District Judge, Cuttack. Learned District Judge delved deep into the matter and rendered a finding that there was no giving and taking ceremony, which is a mandatory requirement for valid adoption. P.Ws.1, 2 & 5 stated that they had no knowledge with regard to adoption of Nata. There is no evidence on record with regard to giving and taking ceremony. The sale deed and R.O.R. executed by defendant no.1 reveals that Nata and Bata were living jointly with Dobei in 1967. Nata is not the adopted son of Sridhar. The consolidation R.O.R. has been rightly published. Defendant no.1 is a co-sharer. Held so, it dismissed the appeal. It is apt to state here that during pendency of this appeal respondent no.1 died, whereafter his legal heirs have been substituted.

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The Second Appeal was admitted on the following substantial questions of law:

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“1. For that, if someone will go through the pleadings of the parties and judgment passed by both the courts below, it will be found that judgment is totally different from pleadings, the plaintiffs/appellants want to declare their right, title, interest over the suit land by deleting the name of Respondent No.1 as he is not a lawful owner because he has already been adopted on Sridhar Barik and in respect to that there is a

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document, i.e., Registered deed of adoption dated 4.8.1947. In view of the very fact, there was specific pleading regarding adoption. There is specific issue regarding adoption. There is unimplacable mass of documentary evidence from 1947 to 1964 to show that “Nata is the adopted son of Sridhar”. It is not open for the courts below not to give any finding as to whether Nata is the adopted son of Sridhar or not.

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For that this Hon’ble Court will go through the plaint pleadings of the plaintiffs, will see that each and every paragraph of the plaint plaintiff has urged that Natabar has no right, title, interest over his natural father’s property being he is adopted son of Sridhar Barik. But it is very surprise that both the courts have held that there is no specific prayer for declaration of adoption or there is no separate issue to give finding in respect of the same. But it is humbly submitted that “it is the duty of the court to frame issue on controversy of each and every allegation of the parties on pleading. Both the courts below have failed to apply their judicial mind, that the plaintiffs have filed the suit for declaration of right, title and interest on the strength that Defendant No.1 has no right, as he is the adopted son of Sridhar. The plaintiffs have no way wrong in filing of this suit on the above prayer. They have rightly approached to the Civil Judge for the above declaration.

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For that so far as the findings with respect to Section 51 of the Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 is concerned. The appellant humbly begs to submit that the question of someone’s status “was not available to be adjudicated within the domain of consolidation authorities. Hence, the findings of the courts below with respect there to is not legally sustainable.”

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Heard Mr.Bhabani Sankar Panigrahi, learned Advocate on behalf of Mr.Bidyadhar Mishra, learned Senior Advocate for the

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appellant and Mr.Niranjan Prasad Patra, learned Advocate for respondent no.1. None appears for others.

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Mr.Panigrahi, learned Advocate for the appellant submits that Nata is the adopted son of Sridhar. There was giving and taking ceremony. Sridhar executed a deed of adoption on 4.8.1947, vide Ext.1. Thereafter he sold some of the properties of his adoptive father by means of a registered sale deed dated 24.9.1960, vide Ext.3. Learned Courts below have committed a manifest illegality in not deciding the said issue. It is a case of ancient adoption. Direct evidence is not available. The registered deed of adoption dated 4.8.1947, vide Ext.1, would show that Nata is the adopted son of Sridhar. The same has been marked as without objection. Thus, the contents of the documents are presumed to be proved. Defendant no.1 describing as a son of Sridhar sold the property vide Ext.3. Both the courts below have not taken into consideration of the said documents. He further submits that the courts below fell into patent error in holding that the suit is barred under Section 51 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (hereinafter referred to as “the OCH & PFL Act”). Notwithstanding the publication of consolidation R.O.R., the Civil Court has jurisdiction to entertain the suit. He places reliance on the decision of this Court in the case of Rajendra Kumar Routray v. Gourahari Pattnayak, 2017 (II) ILR-CUT602.

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Per contra, Mr.Patra, learned Advocate for respondent no.1 submits that Nata is the son of Dhobei. Both the courts below concurrently held that Nata is not the adopted son of Sridhar. P.Ws.1, 2 & 5 stated that they had no knowledge with regard to

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adoption of Nata to Sridhar. There was no evidence on record with regard to giving and taking ceremony. Registered deed of adoption is not the substitute of giving and taking ceremony. The consolidation authorities have adjudicated the right, title and interest of the parties and, accordingly, R.O.R. has been published in favour of Nata and Bata. The suit in its present form is not maintainable.

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Before delving deep into the matter, it is apt to refer the decision of this Court in the case of Rajendra Kumar Routray. The question arose before this Court as to whether the Civil Court has jurisdiction to entertain the suit in spite of the bar contained in Section 51 of O.C.H. & P.F.L. Act. This Court held :

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“ 7. In Gulzar Khan v. Commissioner of Consolidation and others, 76 (1993) CLT 161, the question arose whether the power conferred by Sec. 37 of the O CH & PFL Act would be available for exercise after a notification has been issued as contemplated by Sec. 41(1) of the Act on the subject that consolidation operations have been closed in the unit, the result of which is that the village or villages forming part of the unit cease to be under consolidation operations. The Full Bench of this Court summarised the following principles.

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“36. We may conclude our views relating to Civil Court’s jurisdiction by stating that the same would be available after closure of consolidation operations only in any one of the following circumstances;

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(i) The cause of action accruing after the closure of the consolidation operations.

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(ii) If the consolidation authorities had taken the decision without complying with the provisions of the Act or had not acted in conformity with the fundamental principle of judicial procedure (which would take within its fold the case of violation of natural justice).

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(iii) Obtaining of order from the hand(s) of consolidation authorities by playing fraud on the party who seeks to approach the Civil Court.”

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In view of the authoritative pronouncement of the decision cited supra, the conclusion irresistible is that the Civil Court has jurisdiction to entertain the suit notwithstanding the bar contained in Section 51 the OCH & PFL Act.

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In the celebrated judgment, the apex Court in the case of Kishori Lal v. Mt. Chaltibai, A.I.R. 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.

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In L. Debi Prasad v. Smt. Tribeni Devi, AIR 1970 SC 1286, the apex Court quoted with approval the earlier decisions of this Court in the case of Jadumani Patra v. Padan Patra, (1968) 34 Cut LT 778 and Jagannath Mohanty, v. Chanchala Bewa, AIR 1973 Orissa 160. The apex Court held:

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“10. In the case of all ancient transactions, it is but natural that positive oral evidence will be lacking. Passage of time gradually wipes out such evidence. Human affairs often have to be judged on the basis of probabilities. Rendering of justice will become impossible if a particular mode of proof is insisted upon under all circumstances. In judging whether an adoption pleaded has been satisfactorily proved or not, we have to bear in mind the lapse of time between the date of the alleged adoption and the date on which the concerned party is required to adduce proof. In the case of an adoption said to have taken place years before the same is questioned, the most important evidence is likely to be that the alleged adoptive father held out the person claiming

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to have been adopted as his son; the latter treated the former as his father and their relations and friends treated them as father and son. There is no predetermined way of proving any fact. A fact is said to have been proved where after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists………”

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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.”

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A Division Bench of this Court in the case of Sauney Majhi and another v. Duli Dei and others, AIR 1985 Orissa 22, has succinctly stated the principles governing ancient adoption. This Court held:

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“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.”

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Reverting to the facts of this case and keeping in view the enunciation of law laid down in the decisions cited supra, this Court finds that the plaintiff asserts that Nata is the natural son of Dobai. He has been adopted to Sridhar. Sridhar executed a registered deed of adoption, vide Ext.1. There was giving and taking

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ceremony. On a threadbare analysis of the evidence on record and pleadings, learned appellate court came to hold that P.Ws.1, 2 & 5 stated that they had no knowledge with regard to adoption of Nata. There was no giving and taking ceremony. Nata is not the adopted son of Sridhar. There is no perversity in the said finding.

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Reliance placed on Exts. 1 & 3 is totally misplaced. This Court in the case of Bauri Dei and others v. Dasarathi Sahu and others, 41 (1975) C.L.T.267 held that creation of documents is no substitute for the fact of giving and taking which must be proved independently de hors any document. The instant case is not a case of ancient adoption. The plaintiff examined witnesses to prove adoption. The witnesses had stated that they had no knowledge with regard to adoption of Nata. The substantial questions of law are answered accordingly.

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The logical sequitur of the analysis made in the preceding paragraphs is that the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. No costs.

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..………..…...………………..

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Dr.A.K.Rath, J.

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Orissa High Court, Cuttack, The 14^th March, 2019/CRB.

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Ichha Barik v. Natabar Barik

Case brief

What is this about?

What did the court decide?

Ichha Barik v. Natabar Barik

Case brief

What is this about?

What did the court decide?

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