SADASIBA RATHA Vs. BIMALA DIBYA

JUDGEMENT

(1.) Defendants 1, 2 and 3 are the appellants. The courts below have concurrently decreed plaintiffs' suit for partition of her 1/3 share declaring that the defendant No. 3 is not the adopted son of the plaintiff and her late husband and the entry in the record-of-rights describing defendant No. 3 as the son of Rajkisore is erroneous and the entries recording the names of defendants 6 and 8 as occupancy raiyats are wrong and directing correction of the entries in the record-of-rights showing defendants 2 to 6 and 8 as occupancy raiyats.

(2.) The late husband of the plaintiff and defendants 1 and 2 are brothers. The plaintiff alleges that she is entitled to 1/3 share in the joint family properties. The suit property being estates vested in the State Government and were settled under Sections 6 and 7 of the Orissa Estates Abolition Act with the plaintiff and defendants 1 and 2. Her earlier suit for partition in O. S. No. 15/28 of 1952-1951-1 in respect of the properties which had not vested was disposed of on compromise and the present suit for partition is in respect of the properties which had vested and have been settled. She further alleges that defendants 4 to 8 got their names fraudulently recorded taking advantage of her absence and defendant No. 3 has never been adopted either by her husband or her. The contesting defendants have controverted the plaint allegations and have urged that the defendant No. 3 is the adopted son of the plaintiff and the defendant, No. 5 being in possession for more than 30 years has acquired occupancy right.

(3.) The courts below, having negatived the plea of the defendants that defendant No. 3 is the adopted son of plaintiff have decreed the suit. The said finding is not challenged in this appeal. The only question that has been urged is whether in the facts and circumstances of the case the suit is barred by limitation. The defendants contend that the record-of-rights Ext. B was finally published on 9-12-1966 and the suit filed on 23-12-69 was beyond the period of 3 years prescribed by Article 57 of the Limitation Act. The relevant provision is as follows :-