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Khetrabasi Padhan Vs. Bisikeshan Padhan - Court Judgment

LegalCrystal Citation
SubjectCivil;Family
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 171 of 1954
Judge
Reported inAIR1957Ori191; 23(1957)CLT363
ActsHindu Law; Code of Civil Procedure (CPC) , 1908 - Order 2, Rule 2
AppellantKhetrabasi Padhan
RespondentBisikeshan Padhan
Appellant AdvocateB.N. Das, Adv.
Respondent AdvocateS.C. Das and ;P.K. Mohanty, Advs.
DispositionAppeal allowed
Cases ReferredRam Lakshman Jankiji v. Makund Lal Sahu
Excerpt:
.....at the time of the institution of the previous suit the matter of registration being under enquiry, the present plaintiff could not have included that cause of action in the earlier suit......learned additional subordinate judge of berhampur, dated 4-2-54 dismissing his suit. the plaintiff filed a suit for a declaration that the deed of adoption executed by his adoptive father baidyanath padhan in favour of the defendant bishikeshan padhan on 7-3-44 is invalid and inoperative in law. the plaintiff's case was that he was adopted by his late adaptive father baidyanath padhan in or about the year 1908 on the 21st day of his birth. he was given in marriage by his adoptive father and was living with baidyanath ever since his adoption.in or about the year 1934, there was a quarrel between the adoptive father and the plaintiff on account of the present defendant having got certain lands recorded in sis name. since then both the father and the son lived separate in enjoyment of.....
Judgment:

Das, J.

1. This is a plaintiff's appeal against the judgment of the learned Additional Subordinate Judge of Berhampur, dated 4-2-54 dismissing his suit. The plaintiff filed a suit for a declaration that the deed of adoption executed by his adoptive father Baidyanath Padhan in favour of the defendant Bishikeshan Padhan on 7-3-44 is invalid and inoperative in law. The plaintiff's case was that he was adopted by his late adaptive father Baidyanath Padhan in or about the year 1908 on the 21st day of his birth. He was given in marriage by his adoptive father and Was living with Baidyanath ever since his adoption.

In or about the year 1934, there was a quarrel between the adoptive father and the plaintiff on account of the present defendant having got certain lands recorded in Sis name. Since then both the father and the son lived separate in enjoyment of separate parcels of land. In the year 1936-37 Baidyanath filed a petition before the Assistant Dewan of the ex-State of Bauth for permission to adopt the present defendant, for under the Adoption Rules of the State, it was necessary that the previous permission of the Ruler should be obtained before any valid adoption could be effected.

The plaintiff naturally filed an objection to this permission being granted to Baidyanath. On 6-4-37 the Ruler directed the parties to go to Civil Court to get their rights adjudicated. Baidyanath having filed the petition for permission should have gone to the Civil Court for a declaration that the present plaintiff was not his adopted son, and he had the right to take a boy in adoption. He did nothing. On 7-3-44 he executed a deed of adoption in favour of the present defendant and presented it for registration before the Registrar of the ex-State of Baudh.

The plaintiff objected to this registration and the Ruler by his order dated 4-5-44 directed the parties again to file a suit in the Civil Court by 15-7-44. Accordingly, the present plaintiff filed a suit in the State Court on 10/11-7-1944 being O. R No. 2 of 1944-45 for a declaration that he is the adopted son of Baidyanath Padhan, In that suit, both the trial court as well as the court of appeal found the present plaintiff to be the adopted son of Baidyanath Padhan. but dismissed his suit on the ground of limitation, since the suit was not Instituted within six years from the date on which the cause of action arose.

However, the deed of adoption as executed on 7-3-44 was registered on 25-4-45 and Baidyanath died en 12-7-49. The plaintiff thereafter filed the present suit on 25-2-50 for a declaration, as indicated above, that the deed of adoption as executed and registered on 25-5-45 is invalid, and inoperative. The defence of the defendant was that in Miscellaneous case No. 13/60 of 1936-37. the plaintiff was asked to establish his right in Civil Court. The plaintiff filed the previous suit for a declaration which was numbered as O. S. 2 of 1944-45, and he had lost in both the courts. Hence the present suit was barred by the principles of res judicata.

He further averred that there was never any Punchayati wherein the plaintiff was acknowledged as the adopted son or he was given any lands or house in such Punchayati. The plaintiff having filed the earlier suit for a declaration of his adoption and the relief having been denied to him. the present suit has been filed falsely in order to escape the liabilities from certain criminal miscellaneous cases which the defendant had filed due to the plaintiff's having trespassed into the lands belonging to Baidyanath Padhan. It was next averred that the plaintiff's suit was not maintainable, since, even if he had any right, it had already been adjudicated against him.

2. The learned trial judge on a consideration of the evidence, both oral and documentary, came . to the conclusion that the suit was not barred by res judicata and the defendant had failed to prove the factum of adoption. He further came to the conclusion that the plaintiff is the validly adopted son of Baidyanath Padhan and accordingly, decreed the suit. The defendant, against this decision of the trial court, preferred an appeal, and the learned Additional Subordinate Judge confirmed the findings that the suit was not barred by res judicata.

He also concurred with the findings of the learned trial Judge that the plaintiff was the validly adopted son of Baidyanath, and that the defendant had failed to prove the fact of his adoption. He. however, on a consideration of the principles of Order 2 Rule 2, C. P. C., came to the conclusion that the suit is barred by Order 2, Rule 2 and accordingly, allowed the appeal and dismissed the Plaintiff's suit. It is against this decision of the court of appeal below that the plaintiff has pre-ferreri this second appeal.

3. Mr. B. N. Das. learned counsel appearing on behalf of the appellant, contended that there was no material on record for the application of Order 2, Rule 2. C.P.C. to the facts of the present case. His contention was that Order 2, Rule 2 involves a mixed question of fact and law, and hence investigation into certain facts are necessary before the court can apply the principle underlying in Order 2, Rule 2. Further, the defendant had never in his Written statement pleaded the bar under Order 2, Rule 2 nor was any issue raised before the trial court much less any finding has been arrived at by him. Hence, according to his contention the lower appellate court was not correct in coming to the conclusion that the present suit is barred by Order 2, Rule 2. C. P. C.

4. In order to appreciate the point, it would be necessary to state a few facts in detail. Baidyanath first filed a miscellaneous case for permission in the court of the Assist. Devvan of Bauth on 6-1-37. and that case was numbered as 13/60 Of 1936-37. In that proceeding, the parties Were referred to get their right adjudicated in a civil court. Baidyanath being the petitioner in said miscellaneous case, he, in the ordinary course, should have filed the civil suit for a declaration that the present plaintiff was not his adopted son and that he had the right to take a boy in adoption, if he was really serious about the adoption of the defendant.

He took no steps until 1944. On 7-3-44 he presented an application for registering a deed of adoption which he had executed on that date In favour of the defendant. Notice of this application was given to the present plaintiff and he filed his objections on 15-4-44. Accordingly, an order was passed on 4-5-44 directing the plaintiffto file a suit in the Civil Court by 15-7-44. It must be remembered at this stage that neither the order passed in the miscellaneous case, nor the petition of objection filed on the 15th of April, 'nor the order passed on the 4th of May, 1944, is filed in this case.

Accordingly to the directions of the Ruler, the present plaintiff filed the suit on the 10th/11th of July. 1944 (O. S. 2/44-45). In that suit, as I nave indicated above although on a consideration of the oral evidence both the courts in the ex-State of Baudh including the Ruler himself, came to the finding that the present plaintiff was the. adopted son of Baidyanath. still they non-suited him on the ground of limitation. After the death of Baidyanath in 1949. the present plaintiff filed the suit for a declaration that the deed of adoption executed in favour of the defendant is invalid and inoperative. At this stage, it would be pertinent to refer to the text of Order 2. Rule 2 C. P. C. Which runs as follows :

Order 2. '(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.

(2) Where a plaintiff omits to sue in respect of. or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. x x x x x'

Thus, according to the provisions of Order 2, Rule 2,the subsequent suit by the plaintiff would be hitby it. provided the cause of action of the previoussuit and of the subsequent suit are the same. Ifthere are differene causes of action, the plaintiffis still within the jurisdiction to file differentsuits. He can also relinquish a portion of hisclaim arising out of one completed cause of actionin order to bring the suit within the jurisdictionof a particular court But when the plaintiffomits to sue in respect of or intentionally relinquishes any portion of his claim, he shall not, afterwards sue in respect of the portion so omitted orrelinquished. As to the reliefs, the plaintiff maybe entitled to more than one relief in respect ofthe same cause of action, and may sue for all orany of such reliefs, but he cannot bring a suitin respect of the other reliefs arising out of thesame cause of action without the leave of theCourt. Therefore, one has got to see if the causeof action in the previous suit was the same as thecause of action in the present suit. As I haveindicated above, the previous suit. O. S. No. 2 of1944-45 was a suit for declaration that the presentplaintiff is the adopted son of Baidyanath Padhan,whereas the present suit is a suit for a declarationthat the deed of adoption executed by Baidyanathin favour of the defendant is invalid and inoperative. The parties, however, adduced evidence onthe question of adoption and the concurrent findings of both the Courts below are that the plaintiff has been successful in proving the factum ofadoption; whereas the defendant has signally failed to prove that he was the adopted son of Baidyanath.

There may be a deed of adoption properly executed and registered by the adoptive father, but it must conform to the minimum requirements of law. In order to declare an adoption valid, a mere registration of the document would not be sufficient. The fact of actual adoption must be proved by cogent evidence. Mr. B. N. Das, in support of his contention, relied upon a decision of the Privy Council reported in Pavan Reena Saminathan v. Pana Lana Palanianna 41 Ind App 142 (A).

Although that was a case against a judgment of the Supreme Court of Ceylon under Section 34 of the Ceylon Civil Procedure Code, their Lordships of the Privy Council had stated that Section 34 of the Ceylon Civil Procedure Code 1898, is in the same terms as the Indian Code of Civil Procedure, 1908, Order 2. Rule 2. Their Lordships in that case held that although the claims in the two actions arose out of the same transaction, they were in respect of different causes of action, and that, consequently, the second action was not brought contrary to Section 34 of the Code which is equivalent to Order 2, Rule 2, C. P. C. of 1908 and could be maintained.

As stated above, the previous suit was in respect of a declaration of the plaintiff's status whereas the subsequent suit was in respect of a declaration that the deed of adoption was invalid. As according to the Privy Council both the causes of action might have arisen from the same transaction, there were certainly two causes of action, and the subsequent suit cannot be said to be hit by the provisions of Order 2, Rule 2. Reliance was also placed upon a decision reported in Ram Lakshman Jankiji v. Makund Lal Sahu, AIR 1949 Pat 358 (B). In the case Shearer and Reuben, JJ. held that the subsequent suit was not barred as it was based on a cause of action different from that in the earlier suit. The real test therefore is whether the cause of action is the same or different.

5. The causes of action, as I have stated above are distinctly different in both the previous suit as well as in the subsequent suit, for at the time of the institution of the previous suit the matter of registration being under enquiry, the present plaintiff could not have included that cause of action in the earlier suit.

6. Mr. S. C. Das, learned counsel appearing on behalf of the respondent, very fairly conceded that the defence of this bar under Order 2, Rule 2, has not been specifically taken in the written statement : but the defendant has undoubtedly taken a defence that the suit is not maintainable. From that he wanted to infer that the suit is not maintainable under Order 2 Rule 2. Unfortunately for the defendant the application of Order 2, Rule 2, C. P. C. requires some investigation into facts. Mr. B. N. Das took me through the evidence of the defendant who examined himself as D. W. 7. He does not say a word about the cause of action either in the previous suit or in the subsequent suit, nor has he filed any document to prove that the cause of action is the same in order that the provisions of Order 2. Rule 2 may be applicable. Mr. Das has also taken me through the deposition of the plaintiff (P. W. 1) himself. Obviously, he would not breathe a word about it and in fact he has not.

However. Mr. Das contended that the present suit ought to have been held to be barred under Order 2, Rule 2, since it is only one cause of action, that is, whether or not the present plaintiff is the adopted son of Baidyanath, Padhan, When confronted, he frankly conceded that there is nothing in the written statement nor was there any proof before the trial judge, and hence, it cannot now be contended that it arises put of the same cause of action. The cause of action in the present suit arose on the day following the presentation of the deed of adoption for registration, that is. on 3-3-44.

The cause of action in the earlier suit which Was for a mere declaration of the plaintiff's status had arisen on 6-4-37, when it was ordered to get the respective rights of the parties adjudicated in the Civil Court. Hence, there is no doubt that the causes of action in the two suits are differentand the present suit cannot be held to be barred by the principles of Order 2, Rule 2. The learned Subordinate Judge, it appears, completely misdirected himself. No other point was argued at the bar.

7. In the result, the appeal is bound to succeed and the plaintiff's suit must be decreed. Accordingly the judgment of the learned Subordinate Judge is set aside and the appeal is allowed with costs throughout.


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