KANI BEWA Vs. KRUSHNA BEHARA

JUDGEMENT

(1.) THIS is an appeal against the judgment dated 7 -1 -50 of Sri J. Mohanty, District Judge of Ganjam -Nayagarh, remanding the case for disposal on the merits by the trial Court, after having allowed the petition for amendment of the plaint filed on behalf of the plaintiff Krushna Behera. Krushna Behera brought a suit for declaration that he is the next reversioner to deceased Gangadhar, for setting aside the sales effected by Gangadhar's widow Kani Bewa (defendant No. 1) in favour of defendants 3 to 7 and for a declaration that the alleged adoption of defendant No. 2 to defendant No. 1 is not valid and binding on the plaintiff. Plaintiff Krushna Behera's allegations in the plaint are that he is the uterine brother of Gangadhar Behera, the deceased husband of defendant 1; that they became separate by virtue of a registered partition deed dated 9 -5 -23; that after the death of Gangadhar, his widow (defendant 1) being in possession of the properties of Gangadhar, while enjoying widow's estate, in collusion with defendant 2 (who is her brother's son) alleged him as adopted son of late Gangadhar and brought about a few alienations in favour of defendants 3 to 7. In 1944, the present plaintiff had brought a suit in the Munsifs Court for a declaration that the decree obtained by defendant 3 against defendant 1 is not binding on him. During the course of that suit, the present defendant 1 asserted defendant 2 as the adopted son of Gangadhar. The plaintiff came to know this for the first time in that suit that defendant 2 asserted himself as the adopted son of Gangadhar. He withdrew the suit and instituted the present suit on 6 -9 -46.

(2.) THE defence in the present suit mainly is that the suit is not maintainable inasmuch as the present plaintiff is not the next reversioner of late Gangadhar inasmuch as the present pltf. was adopted by Achut, the uncle of late Gangadhar &, as such, the suit is not maintainable. They had further pleaded that the alienations made by defendant 1 were all for legal necessity. The plaintiff, in his deposition in Court, had admitted that, in fact, he had been adopted by Achut Behera, the uncle of the plaintiff and Gangadhar, and that Gangadhar had a sister whose son Halu Behera is still living. The learned trial Court, on this admission of the plaintiff, dismissed the suit on the preliminary issue that the suit is not maintainable inasmuch as the plaintiff is not the next reversioner of Gangadhar, Halu, the sister's son of Gangadhar, being still alive. In appeal against the judgment of the trial Court, a petition for amending the plaint was filed by Krushna Behera the appellant, before the lower appellate Court alleging that Halu Behera, Gangadhar's sister's son, who had deposed in favour of the present defendants, is colluding with the defendants and, as such, he being the next reversioner is entitled to bring the suit. He also prayed for an amendment that Halu Behera be made a party to the suit. The learned lower appellate Court allowed the petition for amendment and the prayer for making Halu Behera a party -defendant in the suit and remanded the case to the trial Court for disposal on the merits having himself found that the suit is maintainable inasmuch as Halu is colluding with the defendants and that Halu is not in such a financial position to bring a suit as the present one. Against the judgment of the lower appellate Court, this Misc. Appeal has been filed by defendants 1 and 2.

(3.) OBVIOUSLY , Krushna Behera, while filing the suit, had made deliberate false statements and also had committed some deliberate suppression of facts. He brought the suit as the next reversioner of Gangadhar Behera representing that he was the uterine brother of Gangadhar; but in his deposition in Court, he admitted that in fact he was adopted by Achut Behera, the uncle. As such, he is not really the uterine brother of Gangadhar. He had deliberately suppressed the fact that Gangadhar had a sister and that the sister's son Halu Behera is still living. This suppression was made clear in the cross -examination of Krushna Behera, He made deliberate false statements in the plaint that plaintiffs 2 and 3 were his sons, while he admitted in his examination that they were his daughter's sons.