SRITELA MAHAKUD Vs. OKIL BEHERA

JUDGEMENT

(1.) This appeal has been filed challenging the judgment and decree passed by the learned Sub-Ordinate Judge, Bargarh in Title Appeal No. 03 of 1990. The respondent No. 1 as the plaintiff had filed the suit for declaration that he is the adopted son of late Bansidhar Behera and Gouri Behera and that the defendant-appellant is not the daughter of said Bansidhar and Gouri. The suit having been dismissed, the plaintiff/respondent had carried an appeal. The appellate court has reversed the finding of the trial court and finally held the plaintiff/respondent to be the adopted son of Bansidhar and Gouri. However, the finding of the trial court that the defendant/appellant is the daughter of Bansidhar and Gouri has been affirmed. Therefore, now unsuccessful defendant has filed this appeal.

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

(3.) The case of the plaintiff is that, he is the natural born son of one Mruntyunjaya Behera. Bansidhar Behera is the cousin brother of Mrutyunjaya and Gouri was his wife. Plaintiff being the second son of Mrutyunjaya was born in the year 1973 in the month of 'Chaitra' on a Monday. Bansidhar and his wife Gouri was issue less. So, there came the request from their side to Mrutyunjaya and his wife Sita to give the plaintiff in adoption to them. The proposal was accepted and accordingly on the 21st day of birth of the plaintiff, in the month of Baisakha on the Purnima which was eventually again a Monday, the giving and taking ceremony took place in presence of relatives, caste men, friends etc. So, it is said that since then the plaintiff remained with Bansidhar and his wife Gouri as their son being treated all along as such. He stayed under the same roof with Bansi and his wife, prosecuted his studies and also cultivated lands of Bansidhar. Adoptive parents Bansidhar and Gouri died in the year 1987. Therefore, it is stated that the defendant having no relationship with Bansidhar, suddenly jumped into the fray by advancing a false claim to grab the landed property of Bansidhar falsely advancing a claim unto herself as his daughter. She filed a mutation case for getting land recorded in her name which came as the first threat to the plaintiff. Subsequently, the threat came when the defendant denied the status of the plaintiff in the said mutation case and projected her status as the daughter of Bansidhar and Gouri as the basis for such recording of the land. So, the plaintiff had to file the suit. The defendant while traversing the plaint averments has gone to deny the factum of adoption of plaintiff by Bansidhar and Gouri with due observance of giving and taking ceremony as pleaded. It is asserted that the plaintiff being the son of Mrutyunjaya was all along residing in his house possessing the land of his father along with his mother and brother. The landed property of Mrutyunjaya are said to have been duly recorded in the name of the plaintiff and others in the consolidation operation. It is said that the Bansidhar was not an issue less, he was having a daughter i.e., the defendant. It is further case of the defendant that after the death of Bansidhar she being the daughter, succeeded to the property of the Bansidhar as she is sole legal heir and possessed the land belonging to Bansidhar and as such and is paying rent for the same. In view of all these, she prayed to non-suit the plaintiff.