KRUSHNA CHANDRA SAHU Vs. PRADIPTA DAS

JUDGEMENT

(1.) This appeal, by defendants 1 and 2, arises out of a suit for declaration of title to and recovery of possession of the suit lands and also for mesne profits.

(2.) The plaintiffs case runs thus: The suit lands originally belonged to one R. K. Chakrabarty, who transferred the same in favour of Gitarani Kundu, widow of late Debendranath Kundu by a registered sale deed dated 24-8-48 (Ext. 2). The plaintiff purchased the same from Gitarani Kundu and her daughter Pusparani Kundu by a sale deed dated 12-2-80 (Ext. 1) for a sum of Rs. 25,000. Defendant No. 1 Krushna Chandra Sahu was engaged as a servant by Debendranath Kundu, the deceased husband of Gitarani, in the year 1960. Debendranath Kundu became addicted to drinking and began to ill-treat Gitarani for which she left for Calcutta in the year 1964 and lived there with her daughter. During her absence, Debendranath became mentally unbalanced and fully dependant upon the help of defendant No. 1. Taking advantage of his ill-health and mental condition defendant No. 1 fraudulently obtained on 23-1-75 a document purporting to be a deed acknowledging adoption of defendant No. 2 as a son. It was alleged that defendant No. 2 is the natural born son of defendant No. 1 and he was never adopted by Debendranath Kundu as a son. The document dated 23-175 (Ext. C-1) was obtained from Debendranath by misrepresentation that he was executing a power-of-attorney in favour of defendant No. I authorising him to look after the settlement proceedings which were then in operation. It was further alleged that the contents of Ext. C-l are written in Oriya and Debendranath Kundu did not know how to read and write Oriya language. The contents were never read over and explained to him nor had he any independent advice to execute the deed. Two to three months after execution of the deed, defendant No. 1 began to misbehave with Debendranath and induced the tenants not to pay the monthly rent of the suit houses to Debendranath. He ultimately drove out Debendranath from his house. In April, 1976 Debendranath went to his daughter's house at Calcutta and lived there with Gitarani and told her that a power-of-attorney had been taken from him by defendant No. 1. Coming to know about this, Gitarani and her daughter came down to Bhubaneswar and learnt that defendant No. l had fraudulently obtained the document Ext. C-l on several false recitals that the suit lands were purchased by Debendranath from R. K- Chakrabarty benami in the name of his wife Gitarani; that Pusparani was an illegitimate child of Gitarani; that defendant No. 1 had provided funds for construction of the house on the suit lands; and that defendant No. 2 was the adopted son of Debendranath. It was alleged that Debendranath was oilman by caste and he could not have adopted defendant No. 2 who is khandait by caste and is the son of a servant of the family. It was further alleged that the consent of Gitarani was never obtained for such adoption. On coming to know the real position, Debendranath filed a suit in the court of the Subordinate Judge, Bhubaneswar seeking a declaration that defendant No. 2 was not his adopted son and that the document (Ext. C-1) was obtained from him by fraud and misrepresentation. After filing the suit, Debendranath fell seriously ill and could not take steps in the suit for which it was dismissed for non-prosecution. Defendant No. 1 was occupying two pucca rooms standing on the suit premises. He also inducted several tenants on the suit premises and misappropriated the rent realised from them. Defendants 3 to 20 were the tenants in occupation of the suit premises by the date of the suit. The plaintiff served a notice on the defendant No. 1 requesting him to give up vacant possession of the suit lands in his favour and to pay damages to the tune of rents realised by him from the tenants after 12-2-1980. Defendant No. 1 sent a reply claiming title to the suit lands for himself and defendant No. 2. Hence, the plaintiff filed the suit for the aforesaid reliefs.

(3.) Defendant No. 1 filed written statement denying the plaint allegation. His contention was that the suit lands were purchased by Debendranath Kundu benami in the name of his wife Gitarani and they lived together for some time in the suit house. But subsequently Gitarani left for Calcutta and lived with another man as his wife. Debendranath was issue-less and he treated defendant No. 1 as a "Snehaputra". He got defendant No. 1 married. Defendant No. 1 sold away his ancestral property and spent the consideration money in constructing some houses on the suit lands. He used to look after the suit lands on behalf of Debendranath. Since Gitarani was not traced and subsequently it was learnt that she was living with another man and had begotten children through him Debendranath decided to adopt defendant No. 2 as a son. So after observing all religious rites he adopted defendant No. 2 and subsequently executed Ext. C-1 acknowledging the adoption. Since Gitarani had deserted Debendranath and was treated to be dead, the question of obtaining her consent for the adoption did not arise. The allegations of fraud and misrepresentation were denied and it was contended that Debendranath executed the document Ext. C-1 out of his own free-will being fully aware of the contents thereof. The plaintiff's sale deed was challenged as nominal and devoid of consideration. The allegation that defendant No. 1 realised house rent from the tenants and appropriated the same was also denied, It was alleged that the suit lands were full of jungles and defendant No. 1 reclaimed the same and while so doing he occupied about Ac. 0.040 of Government land and amalgamated the same with the lands purchased by Debendranath. Constructions on the purchased land and the Government land were raised mostly with the funds provided by defendant No. 1. It was also alleged that Gitarani and Pusparani were never in possession of the suit lands and that defendant No. 2 Jogendranath being the adopted son of Debendranath has been in possession of the suit lands in his own right. It was alternatively pleaded that defendants 1 and 2 have acquired title to the suit lands by adverse possession.