HARI BEHERA Vs. BHAGIRATHI BEHARA

JUDGEMENT

(1.) Plaintiffs are the appellants against a confirming judgment in a suit for declaration that defendant is not their adopted son and no right, title or interest accrue in favour of the defendant on the basis of the deed, Ext. A/2 alleged to have been executed by the plaintiffs acknowledging the adoption and gifting the property in favour of the alleged adopted son.

(2.) PLAINTIFF 's case in brief is, that the defendant is the son of plaintiff No. 1's brother and the plaintiffs were illiterate rustic people only knowing how to put their signatures. As they could not look after their landed property and the settlement operation was on in the area, plaintiff No. 1 wanted to execute a power of attorney in favour of the defendant so that defendant can look after the property in the settlement operation. Plaintiff No. 1 went to the Sub -Registrar's office to execute the power of attorney but the defendant instead of a power of attorney got the deed, Ext. A/2 executed and in the said deed not only an acknowledgement of adoption in favour of the defendant has been made but gift of the property has been trade in favour of the said defendant. When the plaintiffs same to know of the aforesaid fraud practised by the defendant they called upon the defendant to cancel the same and the defendant agreed to cancel and executed a fresh deed of relinquishment in respect of the property in question. But on some protext or other as he did not do so the plaintiffs ultimately considered to file the suit. - -

(3.) ON these pleadings the learned trial Judge framed as many as 8 issues and on issue No. 6 came to hold that the plaintiffs have absolutely failed to establish that the defendant has fraudulently snatched away the deed of adoption -cum -gift from him on 18 -6 -1975 and thus Ext. A/2 is not obtained by way of fraud and the deed if a genuine one. On issue Nos. 1, 2 and 3, the learned trial Court held that the suit having been filed more than three years and three months after the plaintiffs cams to know of the forgery of execution of the deed, Ext. A/2, Section 66 of the Limitation Act applies and the suit is barred by limitation. On issue No. 8, the learned trial Judge held that the adoption deed executed on 10 -6 -1975 is not a fraudulent one and is genuine. With these findings the suit having been dismissed, the plaintiffs carried the matter in appeal. The lower appellate Court on a re -appreciation of the evidence on record reversed the finding on the question of adoption and came to hold that there was no valid adoption of the defendant by plaintiff No. 1, but having held so, without discussing the question of limitation, he held that in view of the point of limitation, the suit fails and accordingly dismissed the appeal and hence the present second appeal.