HRUDANANDA DIXIT Vs. SMT. KANAKALATA PANDA

JUDGEMENT

(1.) The appellant this appeal challenges the judgment and decree passed by the learned Civil Judge (Sr. Division), Nimapara in Title Appeal No. 14/94 of 2000/1994 confirming the judgment and decree passed by the learned Civil Judge (Junior Division), Nimapara in T.S. No. 230/552 of 1990/1987. The appellant before this court was the defendant in the trial court in the suit which was originally filed by the mother of respondent as the plaintiff. The suit is for declaration that the appellant-defendant is not the adopted son of the plaintiff and as such has no right to intermeddle with the suit property. The same having been decreed the appellant being the unsuccessful defendant had preferred the appeal in the lower appellant court and said appeal having been dismissed, the present appeal have come to be filed. It may be mentioned here that originally the suit having been filed by the mother of the plaintiff and she having died during pendency of the suit in the trial court, the respondent being her legal representative was substituted and she pursued the suit, as also contested the appeal.

(2.) For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to as they have been arraigned in the trial court.

(3.) The case of the plaintiff is that the properties described under Khata No. 260 measuring an area of Ac.1.00 is the self acquired property of Balakrushna Dixit, the husband of the original plaintiff and the father of the substituted plaintiff and said Balakrushna was in possession of the same till his death in January, 1987 and it was also so recorded in his name. There were other properties situated in mouza Kakatpur Mulagarh which were the ancestral properties in the hands of the Balakrushna and those were jointly recorded in his name and in the name of his brother, Muli Dixit. They had amicably separated the same between them. The other ancestral properties in mouza Jeunti stood jointly recorded in the name of Birabhadra Dixit having 8 annas in interest in Muli Dixit having four annas share and also in the name of Balakrushna Dixit having four annas share. It is stated that they were in possession of the properties to some extent each in accordance with their shares. So, on the death of the father of the plaintiff, her mother, the original plaintiff inherited the properties. And after her mother's death, plaintiff alone inherited the entire properties of her father and remained in enjoyment of the same by possessing the said properties. It is stated that the defendant is the sister's son of the father of the plaintiff hailing from same village and he being the nephew of the father of the plaintiff, was being treated as such by all of them. Taking advantage of this relationship, it is stated that he got the deed of adoption executed in his favour in the year 1963. Although, the said deed came into being in the 1963, it is stated that it was never acted upon and the defendant never acquired any right by virtue of the same as the parties are of re-generate class and the defendants being the sister's son of the father of the plaintiff, he could never have been so adopted as prohibited under the Hindu law. It is stated that in fact he was never adopted and was all along known in the society as the son of Dhobei Dixit who is his natural father. The land record prepared in the consolidation operation describing him to be the son of late Balakrushna Dixit, is said to have clothed no right upon the defendant. The plaintiff's father being highly dis-satisfied with such behaviour of the defendant executed a deed of cancellation of said deed of adoption with the knowledge of the defendant. So, in essence the suit has been filed for declaration that the defendant is adopted son of parents of the plaintiff.