TRINATH NAIK ALIAS NAYAK Vs. HEMA BEWA

JUDGEMENT

(1.) This Second Appeal was admitted on 27.3.1992 on the following substantial question of law:

(2.) The suit was filed by one Mandodari Bewa and Trinath Naik, who are mother and son, against the defendant-respondent, inter alia, alleging that the plaintiff no.1 is the wife of Khetri @ Khetra Naik and she lived with her husband as his wife from 1931-32 till 28 th July, 1978, when Khetra Naik died. According to the plaintiff, Khetra and plaintiff no.1 did not have any male issue even after fifteen years of their marriage and, therefore, they adopted the plaintiff no.2 as their son in 1947, when he was about two years old, after observing all rites and customs of adoption. Plaintiff no.2 thereafter lived with the plaintiff no.1 and her husband Khetra. Plaintiffs further alleged that the defendant no.1 was married to one Khadala Maharatha, but she deserted her husband as well as her daughter and lived with one Aji Naik. In 1967, she came to the house of plaintiff no.1, when she has conceived a child and worked there as servant and was allowed to live in the house. Khetra Naik developed an illicit relationship with the defendant no.1, who deserted her first husband Khadala Maharatha. She was thereafter driven out from the house and gave birth to defendant no.2. Defendant nos.1 and 2 came back to the house of the plaintiff and thereafter Khetra Naik died. Out of compassion, they were allowed to work as servants.

(3.) In the meantime, the plaintiffs went to the Tahasildar to mutate the suit scheduled lands in their names. The prayer was allowed. But, subsequently, an objection was raised by the defendants before the Tahasildar and the Tahasildar struckout the name of plaintiff no.2 from the mutated Record of Rights and recorded the suit land in the name of the plaintiff no.1 and the defendants holding that defendant no.1 is the second wife and defendant no.2 is the son of late Khetra Naik. This fact was denied by the plaintiffs. The plaintiffs in the suit sought to declare that the plaintiff no.1 has absolute right, title, interest and possession over Schedule-'A' an 'C' land and has joint right, title, interest and possession over Schedule-'B' land along with the plaintiff no.2 as the sole successor of Khetra Naik. They also sought to declare that the plaintiff no.2 is the adopted son of late Khetra Naik and the plaintiff no.1 and as an ancillary relief, decree for permanent injunction was also sought for.