SAVITRI DEI Vs. BHASKAR BHUYAN

JUDGEMENT

(1.) PLAINTIFF's case may be stated in short. The disputed properties measure 6-28 acres of land with a house standing thereon. These properties belonged to deceased Pratap Bhuyan who left behind his widow Sukuti and a daughter Mali (plaintiff ). Savitri (appellant) is the daughter of Mali who died after the disposal of the suit and before the filing of the First Appeal. Planitiff's case is that after Pratap's death, Sukuti was in possession of the disputed properties and she being a Pardanashin lady got the properties managed through defendant No. 1 who is the agnatic brother of Pratap and married to the sister of Sukuti. Defendant No. 1 filed O. S. No. 631 of 1931-32 against Sukuti for a declaration that he was the adopted son of Pratap and obtained a fraudulent decree. Defendant No. 1 cultivated the suit lands and paid rent on behalf of Sukuti and had retained rent-receipts with him. The present suit was filed in 1964. Sukuti died about 7 years before the institution of the suit, that is, in 1957-58. After her death, plaintiff entrusted the disputed properties to defendant No. 1 for cultivation and management. In 1963 she came to know during the settlement operation that defendant No. 1 fraudulently got himself recorded in respect of the suit lands and had obtained a fraudulent decree in 1931-32. She accordingly prayed for a declaration of title and recovery of possession and for further declaration that defendant No. 1 was not the adopted son of Pratap and that the decree obtained in 1931-32 was fraudulent and was not binding on her. Defendant No. 1 alone contested the suit. His case is that Pratap had no issues for many years after his marriage with Sukuti. He adopted defendant No. 1 after due performance of necessary ceremonies. After adoption, Pratap had two daughters through Sukuti. One of the daughters died and the plaintiff was the other daughter. After Pratap's death, defendant No. 1 has been in possession of the disputed properties as an adopted son in his own right, title and interest and sukuti was entitled to maintenance only. The assertion in the plaint that the suit properties were entrusted to him by Sukuti and after her death by the plaintiff is denied by him. He further asserts that the compromise petition filed by Sukuti in o. S. No. 631/31-32 was genuine and valid and the compromise decree was not tainted with fraud. In 1946 he got himself mutated in respect of all lands of pratap.

(2.) THE learned Subordinate Judge recorded the following findings: (i) Pratap adopted defendant No. 1. (ii) Defendant No. 1 is in possession of the disputed properties in his own right, title and interest and not on behalf of Sukuti and after her death the plaintiff. (iii) The compromise petition (Ext. A) dated 30-3-1932 is genuine and was duly executed by Sukuti. The compromise decree (Ex. C) based on the basis of the compromise petition was not fraudulently obtained and is binding on the plaintiff and that the suit is barred by res judicata. (iv) The suit is barred by limitation. On the aforesaid findings the learned subordinate Judge dismissed the suit. Plaintiff is the appellant.

(3.) MR. S. Misra raises the following contentions: