UKALT MUSMAT Vs. KISHORI SAHU

JUDGEMENT

(1.) DEFENDANT No. 1 is in appeal against the judgment and decree passed by the learned District Judge, dhenkanal in Title Appeal No. 3 of 1981 confirming the judgment and decree of Subordinate Judge, Angul passed in Title Suit no. 1 of 1978-1.

(2.) THE present respondent as plaintiff filed the above noted suit pleading inter alia that the suit Schedule 'a' property belonged to Mahi Sahu, who got it in the family partition. Mahi Sahu had two daughters; Surkita and Ukuli (D-1 ). Surkita died in 1959 leaving a minor son Kishori (plaintiff ). Since mahi and his wife Hema had no son and after the death of Surkita, Kishori was left uncared for, Mahi and Hema adopted Kishori as their son in the year 1966. Mahi died in 1969. Till his death he was in possession of the suit land. After his death, his wife Hema (D. 2) and adopted son Kishori (plaintiff)possessed the suit land jointly. When the mother stood thus, defendant No. 1 in the year 1972 staked her claim over the suit land with a plea that the same had been gifted to her by the father Mahi and in 1973 she (Ukali) forcibly dispossessed the plaintiff from the suit land. The plaintiff, therefore, filed the suit for partition of the properties of Mahi and for allotment of 4/9th share in his favour, 4/9th share in favour of Hema (D-2) and 1/9th share in favour of Ukali (D-1 ). The defendants filed written statement denying the claim of adoption and share of the plaintiff. They pleaded inter alia that mahi never adopted the plaintiff and the plaintiff had no occasion to possess the suit land. They claimed that on 10-1-1963 Mahi gifted away the suit property to defendant no. 1 by virtue of registered deed and defendant No. 1 became the owner in possession of that property. She got the suit lands mutated in her name in the records of right and paid rent regularly. Defendant No. 1 also took a plea that by virtue of her long, open and continuous possession over the suit land; she has acquired title by adverse possession.

(3.) FROM the pleadings of the parties learned trial Court framed as many as ten issues. The plaintiff examined six witnesses including himself, but he did not produce any document. The defendants also examined six witnesses and produced the khatian nos. 125 and 6, the gift deed and rent receipts, which were marked as Exts. A to D series respectively. On consideration of such oral and documentary evidence, learned trial court came to hold that the plaintiff is the adopted son of Mahi, that there had been no gift deed of the suit land in favour of defendant No. 1, that defendant No. 1 has not perfected her title by way of adverse possession. With these findings learned trial court decreed the suit. In appeal, learned lower appellate Court confirmed the said finding of the trial Court. Therefore, this second appeal.