SAGAR JENA Vs. KANTHA JENA

JUDGEMENT

(1.) DEFENDANT No. 1 has brought this appeal against the reversing judgment of the lower court below arising out of a suit for declaration of title and for recovery of possession on the basis that defendant No. 1 was not the adopted son of Halu Jena. Dhobe Jena and Halu Jena were two brothers. Halu Jena died in September, 1943 leaving behind a widow Petai Bewa. The plaintiff is son of Dhobe Jena. Another son of Dhobe Jena is defendant No. 3. The present defendant No. 1 is one Sagara Swain who is alleged to be the adopted son of Halu Jena, the adoption being challenged by the present plaintiff. The defence was two-fold - that Halu adopted defendant No. 1 as his son in the year 1915 and further that the present suit is barred by limitation as the case is covered under Article 118 of Limitation Act. The trial Court dismissed the plaintiff's suit finding that defendant No. 1 was adopted by Halu Jena. He further found that the suit is barred by limitation as the plaintiff himself admitted that he had knowledge of adoption in the year 1944, the suit having been brought in 1952. The lower appellate Court however found that adoption had not been proved and that the suit is not barred by limitation. Mr. R.N. Misra appearing on behalf of the defendant-appellant challenged both the findings of the lower Appellate Court. He challenges the finding of the lower appellate court regarding the adoption that it is not in accordance with law as the lower appellate court has not considered the materials properly. (After discussing the evidence, the judgment proceeded :) The final court of fact on a consideration of the circumstances and thorough discussion of the witnesses examined was competent to come to the conclusion which appears to be a correct one. In my view it cannot be assailed in second appeal.

(2.) BUT the more important point taken by Mr. Misra is the question of limitation. Here the significant features are relevant to be stated at the outset. The original defendant No. 2. Petai Bewa, widow of Halu Jena, died during the pendency of the suit. Originally, the suit was brought by the plaintiff as a reversioner and only with a prayer for declaration of title. BUT on the death of Petai Bewa, the plaintiff put in a petition for amendment of the plaint claiming as the full owner of the property on the death of the widow and also prayed for recovery of possession. As the suit stands now, it is substantially one for declaration of the plaintiff's title to the disputed land as full owner and for recovery of possession and the prayer that defendant No. 1 is not the adopted son of Halu Jena is only a subsidiary one. On account of the death of the widow, the nature of the suit has completely changed and in my opinion the suit is not hit by the provisions of Article 118 of the Limitation Act as the principle is well known that a reversioner cannot be compelled, in spite of his knowledge of the alleged adoption, to bring a suit for declaration of title that an alleged adoption is invalid or had never taken place.