SANICHARIA DEVI Vs. BELU THAKUR

JUDGEMENT

(1.) The instant Second Appeal has been preferred being aggrieved and dissatisfied with the judgment and decree dtd. 25/9/2002 (decree signed on 5/10/2002) passed by learned Additional District Judge-III, Dumka in Title Appeal No. 1 of 2000 whereby and whereunder the judgment and decree dtd. 4/12/1999 passed by Civil Judge, Senior Division-I, Dumka in Title Suit No. 20 of 1997 has been reversed and the suit of the plaintiff has been dismissed.

(2.) The factual matrix giving rise to this appeal is that the plaintiff/appellant filed the suit for declaration that adoption deeds No. 90/1973 dtd. 7/2/1973 and 278/1978 dtd. 05/10/1978 purportedly executed by Rani Ostain in favour of defendant No. 1 and 2, respectively to be void, inoperative and not binding upon plaintiff. It is alleged that parties are Hindus and governed by Hindu Law of Succession. It is alleged that plaintiff Okhiya Ostain is sole daughter of Pairu Osta who died in the year 1957 leaving behind his son Saligram Osta and daughter Okhiya Ostain, the plaintiff. After death of Pairu Osta, the plaintiff along with her brother Saligram Osta jointly succeeded and came into possession of the landed property pertaining to Jamabandi No. 28 Mauza Karia and Jamabandi No. 21 Mauza Eksingha and Jamabandi No. 20 Mauza Govindpur. It is further alleged that Saligram Osta died in the year 1964 leaving behind his sole daughter Binda Devi and sole son Neelkanth and his wife Rani Ostain. Neelkanth Osta died in the month of April, 1973 and Binda Devi was married with one Pritam Thakur (proforma defendant No. 5) who also died in the year 1980. Thereafter, Rani Ostain solemnized her second marriage with one Muso Osta of Saraiyahat and also executed a paper dtd. 5/6/1973 in presence of Panchayat Authorities and villagers in respect of said marriage. It is further alleged that Binda Devi also died issueless and her husband Pritam Thakur (proforma defendant No. 5) performed second marriage. Thereafter, being sole surviving heir of Pairu Osta (the recorded tenant) the plaintiff in the capacity of his daughter became exclusive owner and came into possession of the aforesaid landed properties. It is further alleged that since some time past the defendants are making faul sort of false claims. It is further alleged that defendant No. 1 and 2 are claiming to be adoptive son and daughter respectively of Rani Ostain as per impugned adoption deeds which are false and fabricated and such adoption never took place rather in the garb of adoptions, the defendants are adamant to get their names recorded in the present settlement which is in operation. It is further alleged that the plaintiff for the first time came to know about the aforesaid adoption deeds in first week of April, 1996 and with great difficulty obtained certified copies of the adoption deeds and instituted this suit because the false claims of the defendants before the settlement authorities has cast doubt in the right, title and possession of the plaintiff.

(3.) On the other hand, the contesting defendants (first party) in their written statement stated that the name and parentage of defendant No. 1 and 2 who are adopted son and daughter of Rani Ostain has been wrongly mentioned as their original name rather after adoption their name has been changed as Belu Thakur and Kaushalaya Kumari respectively and their natural father's name has also been mentioned instead of adoptive father and mother Rani Ostain and Saligram Thakur. It is further stated that plaintiff has no locus standi to institute the suit which is hopelessly barred by law of limitation also. It is admitted that Pairu Osta had one son and one daughter namely Saligram and Okhiya respectively but it is wrong to say that Pairu died in the year 1957 rather he died in the year 1948. It is denied that after death of Pairu Osta, Okhiya Ostain (plaintiff) succeeded to the properties left by her father jointly with her brother Saligram Osta rather sole son of Pairu Osta Saligram succeeded and inherited the entire property of Pairu Osta. Plaintiff never came into joint possession of the property. It is further alleged that Saligram Osta died in the year 1968 as against 1964 as pleaded by the plaintiff leaving behind his wife Rani Ostain, daughter Binda Devi and son Neelkanth pre-deceased Saligram Osta who was unmarried. It is further stated that Binda Devi was married but died issueless. It is further stated that Rani Ostain never remarried with Muso Osta of Saraiyahat and never executed any alleged paper dtd. 5/6/1973 if any such document are produced the same would be forged, fabricated and manufactured and collusive document with connivance of the Panchayat authority. It is further stated that the plaintiff filed a revenue misc. case No. 34/73-74 before the S.D.O., Dumka which was dismissed by order dtd. 8/4/1974 and the appeal preferred by the plaintiff being revenue misc. appeal No. 277/75-76 was also dismissed. It is further stated that there was another case being Criminal Misc. Case No. 250/1973 in between Rani Ostain and others Vs. Sambhu Ostain and Ors. Including Okhiya Ostain (plaintiff) before the Court of S.D.M., Dumka wherein the plaintiff did not whisper about the alleged paper dtd. 5/6/1973. It is further pleaded that Binda Devi also pre-deceased her father Saligram Osta therefore she could not be the owner of the properties of the Saligram Osta. It is further pleaded that plaintiff never inherited any property of Pairu Osta as such no question arise to become owner of the property left by Pairu Osta or her brother Saligram Osta since Rani Ostain remained sole heir of her husband Saligram Osta and never remarried hence inherited all the properties left by her husband and came into possession exclusively. It is further stated that Binda Devi died in the year 1967 and not in the year 1980 as falsely stated by the plaintiff. Rani Ostain after death of her husband, son and daughter became issueless hence she adopted the first defendant No. 1 by his natural parents and the ceremony of adoption was performed on 6/2/1973 at her residence and defendant No. 1 was given in adoption by his natural father Ram Rao with the consent of his wife Basumati Devi. The ceremony of "giving and taking" was performed in presence of villagers at village Govindpur and relatives of both the parties. The defendant was at that time aged about 6 years only since then the defendant No. 1 was living in the house of Rani Ostain and also constructed a new house over the lands of his adoptive mother. Accordingly, a registered deed of adoption dtd. 6/2/1973 was also registered as deed No. 90/1973 at Dumka, Sub-Registry Office. It is further stated that Rani Ostain having no daughter has also taken the defendant No. 2 in adoption on 16/9/1978 at her residence at village Govindpur in presence of villagers, relatives and other dignitaries performing the ceremony of giving and taking from her natural father and mother and given in the lap of Rani Ostain at the age of two years. Accordingly, adoption deed was executed and registered on 5/10/1978 vide Deed No. 278/1978 at Dumka, Sub-Registry Office and the adopted child was renamed as Kaushalaya Kumari. The plaintiff was aware about the aforesaid adoption deeds from very beginning through revenue misc. cases and the criminal misc. cases at the time of survey settlement operations as such plaintiff has no cause of action which is barred by limitation and fit to be dismissed.