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Sadasiba Ratha and ors. Vs. Bimala Dibya and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 280 of 1977
Judge
Reported inAIR1982Ori129
ActsLimitation Act, 1963 - Schedule - Article 57
AppellantSadasiba Ratha and ors.
RespondentBimala Dibya and ors.
Appellant AdvocateR.K. Kar, ;Mira Das and ;R. Mohanty, Advs.
Respondent AdvocateN.C. Mohanty, Adv. (for No. 2), ;B. Patnaik, Adv. (for No. 3), ;R.K. Mohapatra and ;A.N. Misra, Advs. (for No. 1)
DispositionAppeal dismissed
Cases Referred and Padmaluv Achariya v. Fakira Debya
Excerpt:
.....of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v..........limitation act. the relevant provision is as follows :--'57.'57. to obtain a declaration that an alleged adoption is invalid or never, in fact, took place.three years.when the alleged adoption becomes known to the plaintiff.4. the present suit filed by the plaintiff is essentially one for partition. the relief of declaration that defendant no. 3 is not the adopted son, is redundent and a surplusage. a declaration regarding adoption is not necessary to decree the suit for partition though it may be necessary to decide the said question. the consensus of the high courts is that the article applies only to suits where a bare declaration that an adoption is invalid or never, in fact, took place is asked for; it does not apply to a suit for possession of property even though it may be.....
Judgment:

R.C. Patnaik, J.

1. Defendants 1, 2 and 3 are the appellants. The courts below have concurrently decreed plaintiffs' suit for partition of her 1/3 share declaring that the defendant No. 3 is not the adopted son of the plaintiff and her late husband and the entry in the record-of-rights describing defendant No. 3 as the son of Rajkisore is erroneous and the entries recording the names of defendants 6 and 8 as occupancy raiyats are wrong and directing correction of the entries in the record-of-rights showing defendants 2 to 6 and 8 as occupancy raiyats.

2. The late husband of the plaintiff and defendants 1 and 2 are brothers. The plaintiff alleges that she is entitled to 1/3 share in the joint family properties. The suit property being estates vested in the State Government and were settled under Sections 6 and 7 of the Orissa Estates Abolition Act with the plaintiff and defendants 1 and 2. Her earlier suit for partition in O. S. No. 15/28 of 1952-1951-1 in respect of the properties which had not vested was disposed of on compromise and the present suit for partition is in respect of the properties which had vested and have been settled. She further alleges that defendants 4 to 8 got their names fraudulently recorded taking advantage of her absence and defendant No. 3 has never been adopted either by her husband or her. The contesting defendants have controverted the plaint allegations and have urged that the defendant No. 3 is the adopted son of the plaintiff and the defendant, No. 5 being in possession for more than 30 years has acquired occupancy right.

3. The courts below, having negatived the plea of the defendants that defendant No. 3 is the adopted son of plaintiff have decreed the suit. The said finding is not challenged in this appeal. The only question that has been urged is whether in the facts and circumstances of the case the suit is barred by limitation. The defendants contend that the record-of-rights Ext. B was finally published on 9-12-1966 and the suit filed on 23-12-69 was beyond the period of 3 years prescribed by Article 57 of the Limitation Act. The relevant provision is as follows :--

'57.'57. To obtain a declaration that an alleged adoption is invalid or never, in fact, took place.Three years.When the alleged adoption becomes known to the plaintiff.

4. The present suit filed by the plaintiff is essentially one for partition. The relief of declaration that defendant No. 3 is not the adopted son, is redundent and a surplusage. A declaration regarding adoption is not necessary to decree the suit for partition though it may be necessary to decide the said question. The consensus of the High Courts is that the Article applies only to suits where a bare declaration that an adoption is invalid or never, in fact, took place is asked for; it does not apply to a suit for possession of property even though it may be necessary to find that a given adoption is invalid (see Basdeo v. Gopal, ((1886) ILR 8 All 644); Natthu Singh v. Gulab Singh, ((1895) ILR 17 All 167); Radha Dulaiya v. Raahiklal, (1923) ILR 45 All 1): (AIR 1923 All 25); Rama Chandra v. Ranjit, ((1900) ILR 27 Cal 242) and Maharaja v. S. Sundaram, ((1925) ILR 48 Mad 1) : (AIR 1925 Mad 497).

5. The Privy Council accepted this view in the case of Kalyandappa v. Chanbasappa (AIR 1924 PC 137) and Padmaluv Achariya v. Fakira Debya, (AIR 1931 PC 84).

It is not the form of the relief claimed which determines the real character of the suit for the purpose of ascertaining under which Article of the Limitation Act the suit falls. The plaint as a whole is to be examined to see whether it is a declaration properly so-called or whether it is an unnecessary claim and a mere surplusage and the suit is really suit for partition. (See AIR 1951 Madh Bha 40).

The burden is not on the plaintiff to disprove the fact or the validity of the alleged adoption, at all events it is not necessary to obtain a declaration from the Court that the alleged adoption is invalid in law or that it never took place in fact. It would be enough for him to establish his own case by brushing the adoption aside.

However, if it is a suit in substance for a declaration that an adoption is invalid, the mere fact that he ignores the adoption and bases his right on some other act consequential on the adoption will not enable him to escape the period of limitation, for the adoption would be in the way of his getting consequential relief (see Vithoba's case, AIR 1958 Bom 270).

6. Moreover, the defendants have not specifically alleged when the plaintiff had knowledge of the alleged adoption. They have relied on Ext. B, the record-of-rights, and said that the plaintiff must have knowledge from the date of final publication of the record-of-rights. The contention does not appear to be sound. There is no evidence to show on what date the plaintiff first came across the record-of-rights and if at all had knowledge of alleged adoption therefrom. The requirement of Article 57 is a factual requirement and the burden was on the defendants to either allege and prove the date of knowledge or rely on some material on record for the applicability of Article 57 (assuming that the said Article applies). There is no pleading and no issue has been framed and reliance on the only material, the date of publication appearing on the record-of-rights, furnished statutorily, is of little efficacy. The date of final publication has relevance mainly for the purpose of Orissa Survey and Settlement Act. This is not decisive of knowledge of a party without convincing materials otherwise.

7. I am of the opinion that Article 57 has no application and 9-12-1966, the date of final publication of record-of-rights, cannot be held to be the date of knowledge of the plaintiff of the alleged adoption. In the result, the appeal has no merit and is dismissed. No costs.


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