ASHOKA SA Vs. BIDYADHAR PATRA

JUDGEMENT

(1.) Defendant Nos. 4 and 6 are in appeal against the confirming judgment of the learned subordinate Judge, Anandapur decreeing the respondent No. 1's suit to the effect that Naguni Sa (defendant No. 3 - respondent No. 4) and not Ashoka (defendant No. 4 - appellant No. 1) is the adopted son of Kusei Sa.

(2.) The case of the original plaintiff Bidyadhar (since dead) is that as Kusei Sa and his wife (widow) Arati Dei (defendant No. 2 and since dead) had no issue, they proposed to the plaintiff to give his natural son Maguni in adoption to them. The plaintiff accepted the proposal. Accordingly he and his wife gave Maguni in adoption to Kusei and Arati in accordance with the caste system. There was giving and taking ceremony on the 21st birth day of Maguni. After Maguni was taken in adoption, he continued to remain in the house of Kusei who got him admitted in the school and got educated. Maguni looked after their cultivation. On Kusei's death on 11-10-1981, he performed the funeral ceremony. Towards the end of October, 1981, Maguni claimed a share in the plaintiff's property alleging that defendant No. 5 Yudhistir Sa by influencing Kusei and his first wife Pata got a fraudulent deed of adoption in favour of Ashoka Sa defendant No. 4 (natural son of defendant No. 5 Yudhistir). The suit filed by Maguni to establish his adoption by Kusei was managed to be dismissed with the help of original defendant No. 2 with a view to get share in the plaintiff's property. On these allegations, the plaintiff filed the suit for declaration that Maguni-defendant No. 3 is the legally adopted son of Kusei and Arati Dei (original defendant No. 2) and Ashok Sa (defendant No. 4) is not the legally adopted son of Kusei. Defendant No. 3 filed written statement supporting the plaintiff's case. Defendant Nos. 4 and 5 (present appellants) filed separate written statements denying the adoption of defendant No. 3 by Kusei. According to them, defendant No. 4 Ashoka is the validly adopted son of Kusei.

(3.) The plaintiff examined six witnesses in support of his case-Defendant No. 3 Maguni examined himself as D. W. 1 Defendant Nos. 1, 4, and 5 examined four witnesses on their behalf in support of their stand. Parties filed a number of documents. On the basis of the evidence, the learned Munsif held that defendant No. 3 Maguni and not Ashoka defendant No. 4 was adopted by Kusei as his son. He also held that the suit is neither barred by time nor hit by the principle of resjudicata. Being aggrieved by the said decision, defendant Nos. 4 and 5 (present appellants) filed appeal before the learned Subordinate Judge. A contention was raised on behalf of the appellants before the learned subordinate Judge that as the plaintiff does not seek declaration of his legal status or any right to property, the suit is hit by the provisions of Section 34 of the Specific Relief Act, 1963. Although this point was not taken before the trial court, the learned subordinate Judge allowed the point to be raised and held that since the plaintiff's legal right to his property is affected by declaration of legal status of Maguni, the suit is maintainable to that limited extent. He concurred with the finding of the trial Court that Maguni is the adopted son of Kusei and dismissed the appeal.