A suit for partition of property is not barred by limitation under Article 57 of the Limitation Act, 1963, even if it is necessary to find that a given adoption is invalid.

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 Three When the alleged that an alleged adoption is years. adoption becomes invalid or never, in fact, known to the took place. 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 ado