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Sagar Jena Vs. Kantha Jena and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 53 of 1958
Judge
Reported inAIR1961Ori35; 26(1960)CLT379
ActsLimitation Act, 1908 - Schedule - Article 118
AppellantSagar Jena
RespondentKantha Jena and anr.
Appellant AdvocateR.N. Misra and ;R.S. Sahu, Advs.
Respondent AdvocateP.C. Chatterji, Adv. for Respondent No. 1
DispositionAppeal dismissed
Cases ReferredJanikamma v. Mattareddy
Excerpt:
.....hit by the provisions of article 118 of the limitation act as the principle is well known that a reversioner cannot be compelled, in spite of his knowledge of the alleged adoption, to bring a suit for declaration of title that an alleged adoption is invalid or had never taken plage......title and for recovery of possession on the basis that defendant no. 1 was not the adopted son of halu jena. dhobe jena and halu jena were two brothers. halu jena died in september, 1943 leaving behind a widow petai bewa. the plaintiff is son of dhobe jena. another son of dhobe jena is defendant no. 3. the present defendant no. 1 is one sagara swain who is alleged to be the adopted son of halu jena, the adoption being challenged by the present plaintiff.the defence was two-fold -- that halu adopted defendant no. 1 as his son in the year 1915 and further that the present suit is barred by limitation as the case is covered under article 118 of the limitation act. the trial court dismissed the plaintiff's suit finding that defendant no. 1 was adopted by halu jena. he further found that the.....
Judgment:

S.P. Mohapatra, J.

1. Defendant No. 1 has brought this appeal against the reversing judgment of the lower court below arising out of a suit for declaration of title and for recovery of possession on the basis that defendant No. 1 was not the adopted son of Halu Jena. Dhobe Jena and Halu Jena were two brothers. Halu Jena died in September, 1943 leaving behind a widow Petai Bewa. The plaintiff is son of Dhobe Jena. Another son of Dhobe Jena is defendant No. 3. The present defendant No. 1 is one Sagara Swain who is alleged to be the adopted son of Halu Jena, the adoption being challenged by the present plaintiff.

The defence was two-fold -- that Halu adopted defendant No. 1 as his son in the year 1915 and further that the present suit is barred by limitation as the case is covered under Article 118 of the Limitation Act. The trial Court dismissed the plaintiff's suit finding that defendant No. 1 was adopted by Halu Jena. He further found that the suit is barred by limitation as the plaintiff himself admitted that he had knowledge of adoption in the year 1944, the suit having been brought in 1952.

The lower appellate Court however found thatadoption had not been proved and that the suit is not barred. by limitation. Mr. R.N. Misra appearing on behalf of the defendant-appellant challenged both the findings of the lower Appellate Court. He challenges the finding of the lower appellate court regarding the adoption than it is not in accordance with law as the lower appellate court has not considered the materials properly. (After discussing the evidence, the judgment proceeded:) The final court of fact on a consideration of the circumstances and thorough discussion of the witnesses examined was competent to come to the conclusion which appears to be a correct one. In my view it cannot be assailed in second appeal.

2. But the more important point taken by Mr. Misra is the question of limitation. Here the significant features are relevant to be stated at the outset. The original defendant No. 2, Petai Bewa, widow oF Halu Jena, died during the pendency of the suit. Originally, the suit was brought by the plaintiff as a reversioner and only with a prayer for declaration of title. But on the death of Petai Bewa, the plaintiff put in a petition for amendment of the plaint claiming as the fullowner of the property on the death of the widow and also prayed for recovery of possession.

As the suit stands now, it is substantially one for declaration o .the plaintiff's title to the disputed land as full owner and for recovery of possession and the prayer that defendant No. 1 is not the adopted son of Halu Jena is only a subsidiary one. On account of the death of the widow, the nature of the suit has completely changed and in my opinion the suit is not hit by the provisions of Article 118 of the Limitation Act as the principle is well known that a reversioner cannot be compelled, in spite of his knowledge of the alleged adoption, to bring a suit for declaration of title that an alleged adoption is invalid or had never taken plage.

AS this suit originally stood, there might be some, force in the contention that the case would be governed by Article 118 as when the reversioner chooses to bring the suit and does not wait for his option till the death of the widow he is bound to sue within six years from the date ot his knowledge but now that the widow is dead and the plaintiff after amending the plaint claims absolute rights to the property in his capacity as the next heir and claims for recovery of possession, Article 118 has no application. Mr. Misra has drawn ray attention to a Full Bench decision of the Andhra High Court reported in Janikamma v. Mattareddy, AIR 1956 Andhra 141. Their Lordships enunciated a proposition on a review of several cases on the point to the effect that:

'A reversioner is entitled to ignore an adoption as a nullity and file a suit for possession after the death of the widow. As the declaratory relief is only a discretionary relief, it is at his option whether to seek that relief or not but, it he chooses to file a suit for a declaration that the adoption is not valid, that suit is governed by Art 118. If so much is granted, it follows that he cannot ask for a declaration on the basis of a consequential act ignoring the adoption if, as a matter of fact, the question of the validity ot the adoption is substantially involved in the relief asked for.

To illustrate a suit for a declaration that an Sdienation made by the adopted son is invalid and is, in substance, a suit for a declaration that the adoption is invalid for the alienation by the adopted son was only a consequential act flowing from his right as adopted son. If the suit for a declaration that the adoption is invalid is barred by limitation, the other suit also would equally be barred, for it is the same suit in a different garb.'

In emphatic terms the Chief Justice has laid down :

'To put it differently, it is the substance that matters and not the form in which the plaint is couched. In this view, a suit for a declaration that an act of alienation made by an adopted son is not binding on the plaintiff would be maintainable as the provisions of Section 42, Specific Relief Act are complied with but that suit would be barred by limitation if it is filed more than six years after the date of adoption.

As I have indicated above, the position has undergone a complete change on account of the death of the widow and on account of the amendment having been allowed in the Court below.Now substantially, the suit for declaration of theplaintiff's rights is for recovery of possession indeed. While giving this relief it has got to befound that defendant No. 1 is a mere trespasseras there was no adoption. In this view, therefore,in my opinion the aforesaid Full Bench decisiondoes not cover the present case, the most distinguishing feature being that in that case thewidow was still alive till the decision of theirLordships in the Full Bench. In conclusion, therefore, the appeal fails and is dismissed with costs.


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