RAMJI MAHTO @ KODO KHIRHAR Vs. MURLIDHAR YADAV

JUDGEMENT

(1.) THIS second appeal, at the instance of the appellant, is directed against the judgment and decree dated 26.9.1987 passed in Title Appeal No. 14 of 1985/1 of 1986, whereby and where - under the learned 7th Additional District Judge, Dumka set aside the judgment and decree dated 27.5.1984 passed in Title Suit No. 11/82.

(2.) THE case of the plaintiff -appellant in brief is that the appellant filed a suit for declaration that the defendant No. 3 Promod Kumar Yadav was never adopted by the plaintiff No. 1 and he is not the adopted son of plaintiff No. 1. Plaintiff No. 1 had landed property at Mauja Gajipur and Mauja Balidhab, P.S. Sraiyahat in the district of Santhal Pargana and she has also inherited the property at Mauja Gajipur from her father together with her sister, who died leaving behind only son Methal Mahto and this plaintiff has also inherited the landed property at Mauja Balidhab from her husband (since deceased). The plaintiff had three daughters, namely Khudni Mahatwain, Chinta Mahatwain and Sugmani Mahatwain and all these daughters are married and have children. This plaintiff has no son and she adopted one of her grandson namely Kodo Khirhar, who is son of her second daughter Chinta Mahatwain. The said adoption took place on 27 Baisakh 1375 B.S. corresponding to 10.5.1968 in presence of the relatives and the respectable persons of the village after performing all the necessary ceremonies of giving and taking and later on she executed a registered deed of adoption at Dumka on 13.6.1968 and she gave a new name of Kodo Khirhar and at present his name is Ramji Mahto and since then Ramji Mahto is the son of this plaintiff and resides at Belidhab and look after the properties of both the villages Belidhab and Gajipur. This plaintiff had inherited the landed property of Gajipur appertaining to J.B. No. 7 measuring 1 acre 98 decimals. This land was jointly cultivated by this plaintiff and her sister Ampi Mahatwain, who died leaving behind Methal Mahato as her only son. Methal Mahto started creating disturbance at the time of distribution of the produce of the Gajipur property. Defendant No. 1, who is a school teacher, offered to make an amicable settlement between them and on 1.3.1982 the came to Dumka Registry office. The defendant No. 1 got this plaintiff put her LTI on a document the contents of which were not known to the plaintiff. Defendant No. 1 assured her that through the said document she never adopted defendant No. 3, who is son of defendant Nos. 1 and 2 and there was no ceremony of giving and taking of defendant No. 3 between plaintiff and defendant Nos. 4 and 2 on 8.1.1982 or on any other date. Later on the plaintiff came to know about the fraud that defendant No. 1 actually got a deed of adoption executed by her which recited that defendant No. 3 was adopted by this plaintiff on 8.1.1982 in presence of the relatives after performing Puja and other ceremonies. All the recitals in the said deed of adoption are false and the execution of this plaintiff was obtained by fraud and misrepresentation keeping her under impression that she was executing a deed of partition. This plaintiff never intended to adopt defendant No. 3 on 8.1.1982 or on any other date because she had already adopted plaintiff No. 2 Kodo Khirhar on 10.5.1968 and had executed a registered deed of adoption with respect to that adoption on 13.6.1968 and defendant No. 1 simply got her execute that deed with a view to grab her land at Gajipur.

(3.) ON the pleadings of the parties several issues were framed and ultimately the learned Court below decreed the suit in favour of the plaintiff and being aggrieved by the judgment and decree the defendants preferred appeal and the appellate Court allowed the appeal and set aside the judgment and decree of the learned Court below and the plaintiff -appellant has filed this second appeal, in which following substantial question of law has been formulated :