JANAKI NAIKANI Vs. NARASINGHA NAIK

JUDGEMENT

(1.) This appeal has been filed challenging the judgment and decree passed by the learned District Judge, Koraput in T.A. No. 29 of 1986 setting aside the judgment and decree passed by learned Sub-ordinate Judge, Jeypore (as it was then) in T.S. No. 73 of 1983. The trial Court had decreed the suit declaring the title of the appellant No. 1 over the suit land and had directed the defendant respondents to deliver vacant possession of the suit property and also to pay damage. The lower appellate Court has allowed the appeal filed by the aggrieved respondents (defendants) and has dismissed the suit reversing the findings of the trial Court and also the result thereof. So, the appellants being the unsuccessful plaintiffs have been filed this appeal. It may be stated here that during pendency of this appeal, appellant No. 1 (plaintiff No. 1) died. The respondent-defendants raised an objection for further progress of the appeal-for its disposal in accordance with law contending that the appellant No. 1 (plaintiff No. 1) having died without leaving any legal representative in whose favour, the right sue survives, the appeal has to abate. The appellant No. 2 on the basis of his status as the adopted son of Kalia and Janaki (appellant No. 1 plaintiff No. 1) urged that the 'right to sue survives in his favour and thus he can very well pursue the appeal further. In such state of affairs, this Court had directed the trial Court to make an inquiry as provided under the proviso to order 22, rule 5 of the Code of Civil Procedure by taking evidence from both the sides and transmit its view. The trial Court in compliance to the said order has arrived at a conclusion after analyzing the evidence both oral and documentary placed by the parties before it, that appellant No. 2 is the adopted son of Kalia and Janaki. Although objection has been raised to the said report, this Court having carefully read the enquiry report submitted by the trial Court finds that upon detail and critical examination of the evidence on record, the trial Court has arrived at the conclusion as regards the status of appellant No. 2 as the adopted son of appellant No. 1 and there remains no such infirmity therein so as to be taken note for the present purpose particularly when its not the requirement of law that for the purpose it is required to be conclusively established as if in a suit. Therefore the report is hereby accepted.

(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 plaintiffs is that the defendants are the sons of Hari Naik whose brother is Kalia. The plaintiff No. 1 is Kalia's widow and the other plaintiff is his adopted son it is stated that in a partition between Hari and Kalia, the homestead bari land under plot No. 267/2 (suit land) over and above the lands under Khata No. 41 of village Bhoyaguda had been allotted in the share of Kalia and he was in possession of the same exclusively on the basis of his right, title and interest. It is stated that after the death of Kalia in the year 1973, the plaintiffs have been in possession of the said land over which some fruit bearing and other trees also stand. It is alleged that as the defendant No. 5 forcibly occupied the suit land, and as there remained the apprehension of breach of peace, a proceeding under Section 144 of the Criminal Procedure Code was initiated in January 1983, the defendant No. 5 removed two blackberry trees standing over the said suit land and that finally led the plaintiff to file the suit for declaration of their right, title and recovery of possession and permanent injunction as also damage. It is further stated for such high handed action of the father of defendant No. 1 and also the defendants, Title Suit No. 20 of 1971 was filed in the Court of Sub-Judge, Jeypore and said suit was decreed with the finding that the partition as per the document dated 03.11.1965 had taken place and Kalia's title and possession over the land allotted to his share had also been found out. The defendants and their predecessors in interest, Hari having filed First Appeal and Second Appeal had not be able to upset the said judgment and decree passed in T.S. No. 20 of 1971.