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Sauney Majhi and anr. Vs. Duli Dei and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtOrissa High Court
Decided On
Case NumberFirst Appeal No. 129 of 1974
Judge
Reported inAIR1985Ori22
ActsHindu Law; Evidence Act, 1872 - Sections 3, 50 and 60
AppellantSauney Majhi and anr.
RespondentDuli Dei and ors.
Appellant AdvocateR. Mohanty and ;S. Mohanty, Advs.
Respondent AdvocatePrasant Mohanty, Adv.
DispositionAppeal dismissed
Cases ReferredPanchhanidhi Sahu v. Suka Bewa
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....p.c. misra, j. 1. defendants 1 and 2 are the appellants in this appeal. the suit is for declaration of right, title and interest in respect of the properties described inschedule 'b' of the plaint and for a further declaration that the mutation of the suit lands in favour of defendants nos. 1 and 2 is void and that the sale deeds executed by the defendants as per the list given in schedule 'c of the plaint are void and inoperative transactions and for recovery of possession of the suit lands.the plaintiff was a minor and has sued through her next friend, the maternal grandfather. the suit was filed by her as an indigent person.2. the plaintiff's case is that the suit lands belonged to one gangu majhi who died leaving behind his widow, bhagu bewa, and the only daughter. duli dei and her.....
Judgment:

P.C. Misra, J.

1. Defendants 1 and 2 are the appellants in this appeal. The suit is for declaration of right, title and interest in respect of the properties described inSchedule 'B' of the plaint and for a further declaration that the mutation of the suit lands in favour of defendants Nos. 1 and 2 is void and that the sale deeds executed by the defendants as per the list given in Schedule 'C of the plaint are void and inoperative transactions and for recovery of possession of the suit lands.

The plaintiff was a minor and has sued through her next friend, the maternal grandfather. The suit was filed by her as an indigent person.

2. The plaintiff's case is that the suit lands belonged to one Gangu Majhi who died leaving behind his widow, Bhagu Bewa, and the only daughter. Duli Dei and her husband, Barsa Majhi, both predeceased Bhagu Bewa leaving their only son Piru Majhi, their other son Gangu having died during their lifetime. Piru and his wife both died leaving behind the plaintiff as the only heir and she has been brought up by her maternal grandfather. The genealogy of the family as given in the plaint 'A' schedule is reproduced below :

Gangu Majhi (I)

Bhagu Bewa (wife)

Duli Dei (I) daughter

= Barsa Majhi (husband)

Gangu (II) Piru

Duli Dei (II)

(Plff.)

Note.-- To avoid confusion, we have indicated the original ancestor Gangu Majhi as Gangu (I) and the son of Duli Dei as Gangu (II). Similarly, the daughter of Gangu Majhi has been described as Duli Dei (I) and the plaintiff as Duli Dei (II).

The plaintiff's further case is that after the death of Gangu (I), his widow Bhagu Bewa and son-in-law Barsa Majhi, who was living in the house of Gangu (I), cultivated all the lands left behind by Gangu (I). After the death of Barsa Majhi, his son Piru cultivated the lands along with his grandmother, Bhagu Bewa. After the death of Bhagu Bewa, Piru alonecultivated the suit lands. The plaintiff claims that after the death of Piru, she was taken by her maternal grandfather, Lawa Majhi, and the suit lands were being cultivated and looked after by Lawa Majhi and also by defendant 5 who is a close relation of the plaintiff. According to the plaintiff, her peaceful possession was disturbed and she was dispossessed on 25-2-1968 by defendants 1 to 8. Her case is that defendants 1 and 2 have been laying a false claim that their father late Bansing Majhi was the adopted son of Gangu Majhi (I) and got the suit lands mutated in their names stealthily without the knowledge of the plaintiff or her maternal grandfather It is also alleged that defendants 1 and 2 have effected various transfers in faovur of some of the defendants who in their turn have also executed different sale deeds, the details of which have been given in Schedule 'C' of the plaint. Thus, defendants 3 to 8 are the purchasers of portions of the suit lands.

3. Defendants 1 and 2 filed a joint written statement alleging that as Gangu Majhi (I) and his wife Bhagu Bewa had no male issue, they adopted late Bansing Majhi about 50 years back in accordance with the law and customs of the parties. Their case is that Bansing Majhi remained in the house of Gangu Majhi (I) as his adopted son. They claimed that Duli Dei (I), the daughter of Gangu Majhi (I), was given in marriage to Barsa Majhi and after her marriage, she lived with her husband in village Astapura. Thus, according to defendants 1 and 2, their father Bansing Majhi inherited the suit properties after the death of Gangu Majhi (I) and defendants 1 and 2 stepped into the shoes of their father after his death. They contended that late Duli Dei (I) and her husband Barsa Majhi and their son Piru never stayed in the house of Gangu Majhi (I) and had never possessed the suit lands at any point of time. They have further pleaded that Piru having predeceased Bhagu Bewa, the plaintiff could not have any claim over the lands of late Gangu Majhi (I). Their case is that the mutation of the lands has been allowed after due enquiry in their favour whereafter the villagers of Baidikotha at the instance of defendant 5 combined themselves againstdefendants 1 and 2 and compelled them to execute a sale deed in favour of defendant 5 in respect of a portion of the land of Gangu Majhi (I). The sale deed was not backed by any consideration for which defendants 1 and 2 did not make over possession to defendant 5 and threafter defendant 5 has instigated Lawa Majhi to file the suit to harass defendants 1 and 2.

Defendant 5 did not file any written statement and was, therefore, set ex parte. Defendants 3, 4, 6 and 7 have filed a joint written statement supporting the stand taken by defendants 1 and 2. Defendant 8 has filed a separate written statement in which he has denied to have combined with the other defendants to deprive the plaintiff from her legitimate claim and has stated that defendant No. 5 while taking a loan from him gave a portion of the suit land as security in the capacity of guardian of the plaintiff. But when this defendant came to know that Lawa Majhi was looking after the affairs of the minor plaintiff, defendant 5 cleared up the loan and the sale deed was also returned to him. This defendant supported the claim of the plaintiff to the extent that the plaintiff's father Piru became the absolute owner of the suit properties and possessed the same till his death and the plaintiff has been continuing in possession through her maternal grandfather with the assistance of defendant 5.

4. The learned Subordinate Judge on consideration of the evidence adduced by the parties has come to hold that the pleas taken by defendants 1 and 2 that their father Bansing Majhi was adopted by Gangu Majhi (I) cannot be believed and that the father of defendants 1 and 2 had never possessed the suit lands prior to February, 1968. On the other hand, the learned trial Judge has found that the plaintiff has been able to establish that Bhagu Bewa pre-deceased Piru Majhi and that the plaintiff being the only heir of Piru was in possession of the suit lands through her maternal grandfather and defendant 5 till the year 1968. On these findings, the learned trial Judge has decreed the suit with the costs on contest against defendants 1, 2, 3, 4, 6, 7, 8 and ex parte against defendant 5 and has declared thetitle of the plaintiff in respect of the suit lands and allowed the relief of recovery of possession of the suit lands through Court.

5. The main contention of the appellants in this appeal is that the finding of the learned Subordinate Judge that Bansing Majhi was never adopted by Gangu Majhi (I) is liable to be set aside as, according to them, the evidence on record fully proves the ancient adoption. Their contention is that the learned trial Judge had not kept in mind the guidelines for appreciation of the evidence in the case of an ancient adoption. We would, therefore, now examine the question of adoption before going to the other questions raised by the appellants.

6. The law is fairly settled that the evidence in support of an adoption is sufficient to satisfy the very grave and serious onus that rests upon any person who seeks to displace the natural line of succession by alleging an adoption. The fact of adoption must be proved in the same way as any other fact, but where there is a lapse of long period between the date of adoption and the time when it is being questioned, every allowance for the absence of evidence to prove such fact must be favourably entertained, as after the lapse of a long period, direct evidence to prove adoption may not be available.

The Supreme Court in the case of L. Debi Prasad v. Smt. Tribeni Devi, AIR 1970 SC 1286, observed :-

'In the case of all ancient transactions, it is but natural that positive oral evidence will be lacking. Passage of time gradually wipes out such evidence. Human affairs often have to be judged on the basis of probabilities. Rendering of justice will become impossible if a particular mode of proof is insisted upon under all circumstances. In judging whether an adoption pleaded has been satisfactorily proved or not, we have to bear in mind the lapse of time between the date of the alleged adoption and the date on which the concerned party is required to adduce proof. In the case of an adoption said to have taken place years before the same is questioned, the most important evidence is likely to be that the alleged adoptivefather held out the person claiming to have been adopted as his son; the latter treated the former as his father and their relations and friends treated them as father and son. There is no predetermined way of proving any fact. A fact is said to have been proved where after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. Hence if after taking an overall view of the evidence adduced in the case, we are satisfied that the adoption pleaded is true, we must necessarily proceed on the basis, in the absence of any evidence to the contrary, that it is a valid adoption as well.'

The aforesaid view of the Supreme Court has been followed in a number of cases of this Court and of other High Courts. The aforesaid principle only regulates the mode of proof of the factum of adoption. In the decision in the case of Sri Kanchumarthi Venkata Seetharama Chandra Row v. Kanchumarthi Raju, AIR 1925 PC 201, which has been approved by the Supreme Court in the case of Voleti Venkata Ramarao v. Kesaparagada Bhasararao, AIR 1969 SC 1359, it has been authoritatively said that in the case of an ancient adoption, it stands to reason that after a very long term of years and a variety of transactions of open life and conduct upon the footing that the adoption was a valid act, the burden must rest heavily upon him who challenges its validity. The appellants in this case rely upon the aforesaid principles and have contended that the date of adoption as available from the evidence on record was 1909 and it is not possible to prove the factum of adoption by direct evidence. Thus, according to them the overall view of the evidence on record should lead to the conclusion that there was a valid adoption as alleged by them.

7. The defendants-appellants in this case on whom the initial burden of establishing the alleged adoption lies have examined P.W. 2 to be the person who had witnessed the ceremony of adoption. The law is equally well settled that where direct evidence is available for establishing the ceremony of adoption irrespective of lapseof time, the relaxation permissible in the case of an ancient adoption is not available to be applied. (Vide (1968) 34 Cut LT 778, Jadumani Patra v. Padan Patra and AIR1973 Orissa 160, Jagannath Mohanty, v. Chanchala Bewa). It was not the case of defendants 1 and 2 that all those who were present at the time of adoption of Bansing Majhi were dead and were not available to be examined in the case. As a matter of fact, D. W. 2 has claimed to have witnessed the adoption ceremony. In such circumstances, the rules of evidence applicable to the case of ancient adoption would not, in our opinion, be available. In such cases, the evidence on record has to be scrutinised like any other evidence to find out if the adoption, in fact, had taken place.

8. D. W. 2 has been rightly disbelieved by the trial Court. The age of D.W. 2 has been assessed by the trial Court to be between 65 and 70 years on the date of deposition. He was examined in the year1974 and, therefore, the said witness must be in his infancy at the time of the alleged adoption. He has narrated the story as if the giving and taking ceremony was performed without any previous negotiation between the natural father and the alleged adoptive father of Bansing. There is nothing on the record to indicate the relationship between Sauna, the natural father of Bansing, with Gangu Majhi (I) and the circumstances under which Bansing was selected to be adopted by Gangu Majhi (I). He has failed to give the details of the adoption ceremony and is ignorant about the family affairs of Gangu Majhi (I). He deposed that subsequent to the date of adoption, he had gone to the house of Gangu (I) and had seen Bansing staying in'his house and addressing Gangu Majhi (I) as father and his wife as mother. This statement of D.W. 2 cannot be accepted in view of his evidence in cross-examination to the effect that he went to the village Baidikotha (the village of Gangu Majhi (I)) once only. He has said that Bhuta, Quna, Jaktu and Naya were the other persons present at the time of adoption out of whom Bhukta acted as Dehuri and Jaktu acted as Mukhia. But there is no corroboration of the said facts by any other evidence. The evidence ofD.W. 2 read as a whole would not convince us to believe that he had witnessed the alleged adoption.

Some documents have been relied upon in order to prove that the adoption of Bansing must be presumed to have taken place. Assuming for the sake of argument that the alleged adoption is to be treated as an ancient adoption for the proof of which no direct evidence is available, the circumstances and the conduct of the parties during this long period should be of such nature so as to satisfy the Court that the adoption pleaded is true. Besides D.W. 2, a retired Revenue Supervisor, has been examined as D.W. 1 who has said that he had conducted an enquiry in Mutation case No. 1092 of 1964-65 started on the basis of a petition filed by defendant No. 1 and submitted his report vide Ext. G with the finding that Gahgu Majhi (I) had adopted Bansing Majhi for which he recommended that the lands of Gangu Majhi (1) might be mutated in the names of defendants 1 and 2. In his cross-examination he could not disclose the source of his acquiring the knowledge about the adoption of Bansing Majhi. Ext. G is of the year 1966. According to Ext. G, Gangu Majhi (I) had four daughters and one son out of whom Duli Dei (I) was the eldest one. The said report further says that Duli Dei (I) died after her marriage leaving no issue surviving and her husband is also dead. But admittedly, Duli Dei's son is Piru who survived his mother and the plaintiff is the daughter of Piru. The report of D.W. 1 and his evidence in Court cannot be relied upon to come to a finding that there was an adoption as alleged by defendants 1 and 2. D.W. 3 has claimed that Gangu Majhi (I) was his father's sister's husband and he being a relation had the knowledge of the affairs of the family of Gangu (1). He has asserted that Gangu (I) had adopted Bansing as his son and the last rites of Gangu (1) were performed by Bansing. He has also said that Bansing used to address Gangu (1) as his father and Gangu's wife as his mother. According to the said witness, the last rites of Gangu's wife were also performed by Bansing and defendants 1 and 2 had been possessing the lands of Gangu Majhi (I). Admittedly, this witnessbelongs to a different village and does not claim to have witnessed either the adoption ceremony or the Sudhi ceremony of Gangu Majhi (I) or his wife. In cross-examination, he has admitted that he had been going to the village of Gangu Majhi (I) (Baidikotha) for the last 5 to 6 years. D.W. 2 has not named this witness or his father to be present at the time of adoption. The evidence of D.W. 3 does not satisfy the requirements of Section 50 of the Evidence Act. Under Section 50 of the Evidence Act when the Court has to form an opinion as to the relationship of one person to another, the opinion expressed by conduct as to the existence of such relationship of any person who, as member of the family or otherwise, has special means of knowledge on the subject of that relationship, is a relevant fact. In a decision in the case of Dolgobinda Paricha v. Nimai Charan Misra, AIR 1959 SC 914, the scope and applicability of Sections 50 and 60 of the Evidence Act has been clearly stated. The 'Supreme Court has indicated that if a person fulfils the conditions laid down in the latter part of Section 50, i.e. if he is a person who as a member of the family or otherwise has special means of knowledge on the particular subject of relationship, then what is relevant is his opinion expressed by conduct. 'Opinion' means something more than mere retailing of gossip or of hearsay; it means judgment or belief, i.e. a belief or a conviction resulting from what one thinks on a particular question. The 'belief' or conviction may manifest itself in conduct or behaviour which indicates the existence of the belief or the opinion. What the Section says is that such conduct or outward behaviour as evidence of the opinion held is relevant and, may, therefore, be proved. The conduct or outward behaviour must be proved in the manner laid down in Section 60 of the Evidence Act. The conduct must be of the person who fulfils the essential conditions of Section 50. Thus, the evidence of D.W. 3 which does not satisfy the requirements of Section 50 of the Evidence Act is of little assistance to prove the relationship of Gangu Majhi (I) with Bansing Majhi.

D.W. 4, Lakhan Majhi, has deposed in his examination in-chief that Bansing usedto call Bhagu Bewa as his mother. He stayed with Bhagu in the house of Gangu Majhi (I). He has claimed to have known the affairs of the family as he married one of the daughters of Gangu Majhi (I). In his cross-examination, he has admitted that he married once only and that marriage was with a girl from Patbeda and has further admitted that he does not know anybody of village Baidikotha which is the village of Gangu Majhi (I). His evidence also does not satisfy the requirements of Sections 50 and 60 of the Evidence Act.

The next witness, D.W. 5, is a Rent Collector whose knowledge that Bansing was the adopted son of Gangu Majhi (I) is based on hearsay. He has said that he had heard Bansing addressing Bhagu as 'Maa' but on a close scrutiny of his evidence, the same cannot be relied upon because of his poor knowledge about the affairs of the family of Gangu Majhi (I). His evidence also falls far short of the requirements of Sections 50 and 60 of the Evidence Act.

Besides the aforesaid oral evidence, a few documents have been proved and relied upon by the defendants in support of the alleged adoption which are Exts. E, G. H series, K and L.

Ext. E is the death register in which the death of Bansing Majhi has been noted and he has been described as the adopted son of Gangu (I). In order to Challenge the genuineness of Ext. E, the original death register was called for by the plaintiff, pursuant to which a register purporting to be the death register of Kuliana P.S. having entries from 17-8-1957 to 8-10-1960 was produced by the Head Clerk of the S.P.'s office who was examined as P.W.9, The relevant entries in the said register show that SI. No. 59 dt. 22-3-1959 records the death of Piru Majhi, SI. No. 20 dt. 8-10-1960 relates to the death of Bhagu and Sl. No. 83 relates to the death of Bansing. All these entries are the last entries in three different pages of the said register. The learned trial Judge has found that the said entries have been written in the same ink and by the same hand and are different from the other entries in those pages. Besides, the learned trial Judge has observed that SI. No. 59 against the entry relating to the death of Piru Majhi has been scored through and the total numberof deaths in that page has been overwritten in a different ink. The trial Court has also noted that in serial No. 20 relating to the death of Bhagu Bewa, the figure showing the total female deaths in that page has been overwritten and though this SI. No, 20 is the last entry in that page, the next page starts with SI. No. 40. It has also been observed that in the page in which SI. No. 83 appears, the second digit in all the Sl. Nos. has been erased and has been overwritten in different ink; These circumstances have not been explained during argument in this Court. In our opinion, the aforesaid unusual features appearing in Exts. C, D and E (the aforesaid entries in the death register) cannot be relied upon for any purpose whatsoever, far less to prove that Bansing was the adopted son of Gangu (I). There is yet another feature to doubt the genuineness of the death register containing Exts. C, D and E. The plaintiff filed repeated applications starting from 1969 till the year 1972 to get copies of the entries in the death registers of Maliana P.S. from the years 1957 to 1961. Exts. 6, 7, 8 and 9 are the slips supplied to the plaintiff which prove that she had filed applications for certified copies of those registers. The concerned death register was not received in the District Record Room for which requisition was sent to the Superintendent of Police and on every occasion prior to 1972 the plaintiff was intimated that death registers of the refevant years were not maintained in the Kuliana P.S., Ultimately the plaintiffs grandfather, Lawa Majhi, made an application before the S.P. Mayurbhanj, by registered post (Ext. 16) and it appears to have been received in the S.P.'s office on 11-10-1972. Thereafter some loose sheets purporting to be the registers from the years 1957 to 1960 were sent for consignment to the District Record Room by an A.S.I. of Kuliana P.S., but of the Record Keeper examined in this case as P.W. 2 and the Officer-in-charge of the Record Room refused to accept the said registers as some pages were missing, there was no page certificate and some papers therein were in a torn condition. It is in evidence that the plaintiff was not granted the copies asked for as the 1961 deathregister had not been made available in the police station and the particular entry relating to the death of Bhagu Bewa could not be traced out in the death register sent to the Record Room. But in the month of September, 1972 the defendants produced the certified copies of the entries obtained from the same register relating to the deaths of Bhagu Bewa, Bansing Majhi and Piru Majhi which have been marked Exts. C, D and E. The circumstances under which the certified copies of the said entries were not available to the plaintiff have not been explained which raises a suspicion against the genuineness of those entries. The plaintiff had summoned for production of the Choukidari Hata Chitha Book in which the entries marked Exts. 14 and 15 relating to the deaths of Bhagu Bewa, the widow of Gangu Majhi (I) dt. 1-6-1957 and Piru Majhi, son of Barsa Majhi, dt. I9-4-I961 have been noted. P.W. 1 who was admittedly the Choukidar for the village Baidikotha till the abolition of the Choukidari system has produced the Hata Chitha Book and has deposed that he used to get the deaths and births entered in the Hata Chitha Book and used to take the khata to the police station once in a week. The authorities in the police station used to make necessary entries in their register and return the Hata Chitha Book to P.W. 1 thereafter. Some objections have been raised as to the admissibility of Exts. 14 and 15 relying upon the principle decided in the case of Panchhanidhi Sahu v. Suka Bewa, (1973) 1 Cut WR 797, as P.W. 1 was an illiterate person and was getting the entries made through some other person. In this case one Musla Majhi has been examined as P.W. 4 who has deposed that the entry relating to the death of Bhagu Bewa was made by him in his own hand which is Ext. 14. This witness has also proved the entry in Ext. 15 relating to the death of Piru Majhi written by another choukidari Tax member, Jogeswar Mohanta, who is since dead and with whose handwriting and signature P.W. 4 is acquainted with. The other entries, namely, Exts. 17, 17/a and 17/b of the Choukidari Hata Chitha Book fully tally with the death register produced from the police station whereas the entries in Exts. 14 and 15 do not tally with thecorresponding entries in the said death register. All these circumstances taken together lead us to believe that Ext. E is not a document, the genuineness of which is beyond question or that it can be relied upon to prove the adoption of Bansing Majhi by Gangu Majhi (I).

Reliance has been placed on Ext. G, the report of the Revenue Supervisor, submitted to the Tahsildar in Mutation Case No. 1092 of 1964-65. The Revenue Supervisor has been examined as D.W, 1 who has pleaded ignorance about the source from which he ascertained that. Bansing was the adopted son of Gangu Majhi (I). The date of the report is some time prior to the filing of the suit. We have already discussed the evidence of D.W. 1 and, in our view, his evidence and his report (Ext. G) are of little assistance to prove the alleged adoption of Bansing Majhi.

Ext. K is the order of the Tahasildar in the mutation case which owes its origin to the report of the Revenue Supervisor, i.e. Ext. G. If Ext. G has no evidentiary value to establish the, alleged adoption, Ext. K cannot carry the case of the defendants any further. That apart, irrespective of the enquiry report of the Revenue Supervisor and the order passed in the mutation case, it is incumbent upon the parties to prove the factum of adoption in the suit independently as it is in issue.

The next document is Ext. L which is a report of a Civil Court Commissioner dt. 29-3-1974. It appears from the order-sheet of the trial Court that defendants 1 and 2 prayed for deputation of a survey-knowing Commissioner for measurement of the homestead in which they claimed to be residing. The said application was rejected by the trial Court which order was challenged in revision before this Court and was ultimately allowed. The Commissioner in his report has mentioned that in the record-of-rights plots nos. 214 and 215 stood recorded in the name of Gangu Majhi (I) which has been subsequently corrected in the names of defendants 1 and 2. The said report, if at all looked into for the purpose of finding out as to who was in possession of the aforesaid plots on the date of inspection by the Civil Court Commissioner, would notprove the alleged adoption of Bansing Majhi.

The rent receipts, Ext. H to H/4, have been produced by the defendants for the purpose of establishing that it was they who used to pay the rent fpr the lands of Gangu Majhi (I). But these rent receipts show that the rent has been paid by Bhagu Bewa on behalf of Gangu Majhi (I).

9. Thus, on a careful consideration of the oral and documentary evidence adduced on behalf of the contesting defendants, we have no hesitation in our mind to hold that the story of adoption of Bansing Majhi by Gangu Majhi (I) is not true and has not at all been proved.

10. On the other hand, there are some documents proved on behalf of the plaintiff which cut at the root of the story of adoption. Ext. 10 is the Khatian appertaining to Khata No. 26 of Mouza Dadhiasola wherein Bansing and his brothers have been described as sons of Sauna. This record-of-rights was published in the year 1936. Therefore, if there was adoption of Bansing Majhi in the year 1909 as alleged by the contesting defendants, Bansing Majhi could not have been described as the son of his natural father. In the record-of-rights of 1914 marked as Ext. J, one Khadia Majhi who is said to be the son of Gangu Majhi (I) and died subsequently stood recorded in respect of some lands. If is hightly improbable to think of an adoption by Gangu Majhi (I) if Khadia was alive in the year 1914. Besides these documents, there are some other documents and circumstances which remotely improbabilise the story of adoption. Those circumstances have been discussed in the judgment of the trial Court with which we concur.

11. The learned Subordinate Judge having discussed the evidence on record has come to the conclusion that Piru died four years after the death of Bhagu. The evidence on this point is almost one-sided inasmuch as the defendants have practically led no evidence on this point. Nothing has been placed before us during the course of arguments to come to a different conclusion.

12. The plaintiff in her plaint has stated that she was in peaceful possession of the suit lands through her grandfather Lawa Majhi and was dispossessed in February, 1968 by the defendants whereas defendants Nos. 1 and 2 claimed that their father was in possession of the suit lands after the death of Gangu Majhi (1). We have already indicated that Exts. H to H/4, the rent receipts, produced by the defendants, show that the rent had been paid every year after the death of Gangu Majhi (I) by his widow Bhagu Bewa. Admittedly, there has been no mutation in favour of Bansing Majhi after the death of Gangu Majhi (I). D.Ws. 1, 2, 3, and 4 who have deposed about the possession of the suit lands by Bansing Majhi have admitted in their cross-examination that they did not cultivate any land in village Baidikotha. On the other hand, the plaintiff has examined some competent witnesses mainly P.Ws. 5, 7 and 8 who had lands in village Baidikotha either adjoining or nearabout the suit lands and all of them have spoken of the possession of Bhagu, her son-in-law Barsa Majhi and the possession of Lawa Majhi who is the plaintiff's grandfather tin the year 1968. In view of the aforesaid evidence on record, it is not possible on our part to take a view different from the finding recorded by the learned Subordinate Judge that Bansing Majhi and his sons had never possessed the suit lands. The possession of defendants 1 and 2 of a portion of the homestead as reported by the Commissioner even if believed would not lead to an inference that such possession of the homestead was from the time of the death of Gangu Majhi (1). The plaintiff being a minor, whose interest was being looked after by her grandfather, it is quite possible as alleged in the plaint that the possession of defendants 1 and 2 began in the year 1968 whereafter the suit has been filed.

13. No other point has been urged in this appeal. We find no merit for interference with the judgment of the trial Court. The appeal is accordingly dismissed. In the peculiar facts and circumstances of the case, there would, however, be no order as to costs.

G.B. Patnaik, J.

14. I agree.


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