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High Court Of Orissa
K. P. MOHAPATRA
KHAGESWAR NAIK - Appellant
Versus
DOMUNI BEWA - Respondent
First Appeal 153 Of 1975
Decided On : 01/18/1988
HINDU SUCCESSION ACT - SECTION 14(1) - ABSOLUTE INTEREST OF WIDOW - REMARRIAGE - NO DIVESTITURE OF PROPERTY - ADVERSE POSSESSION - NOT PLEADED SPECIFICALLY - EVIDENCE OF POSSESSION - RESPONDENT IN POSSESSION WITHIN 12 YEARS PRIOR TO SUIT - DECREE MODIFIED TO PRELIMINARY DECREE.
Fact of the Case:
The appellant challenged the judgment and decree passed by the Subordinate Judge, Bhawanipatna declaring title of respondent 1 (plaintiff 1) in the suit in respect of immovable property, confirmation of her possession over Sch. B land, directing recovery of possession of Sch. A land and granting mesne profits. The appellant claimed that he had purchased the suit land and was in possession thereof, while the respondents claimed title and possession through Nilamani, the deceased husband of respondent 1.
Finding of the Court:
The court found that respondent 1 was the legally married wife of Nilamani, and that respondent 2 was not his adopted son. The court also found that Nilamani did not reunite with the appellant, and that the appellant did not acquire title in respect of the suit property. The court further found that respondent 1 was in possession of the disputed property within 12 years prior to the institution of the suit.
Issues: 1. Whether respondent 1 was the legally married wife of Nilamani? 2. Whether respondent 2 was the adopted son of Nilamani? 3. Whether Nilamani reunited with the appellant? 4. Whether the appellant acquired title in respect of the suit property? 5. Whether respondent 1 was in possession of the disputed property within 12 years prior to the institution of the suit?
Ratio Decidendi: 1. The court held that respondent 1 was the legally married wife of Nilamani based on the evidence of witnesses who testified that they were married according to social custom and lived together as husband and wife. The court also relied on the presumption of marriage and against concubinage when a man and a woman have cohabited continuously for a number of years. 2. The court held that respondent 2 was not the adopted son of Nilamani based on the evidence of witnesses who testified that he was the son of Trilochan, Nilamani's brother. 3. The court held that Nilamani did not reunite with the appellant based on the evidence of witnesses who testified that Nilamani lived separately from the appellant after the partition of the joint family property. 4. The court held that the appellant did not acquire title in respect of the suit property based on the evidence of witnesses who testified that Nilamani had sold the suit property to the appellant to meet the expenses of his treatment. 5. The court held that respondent 1 was in possession of the disputed property within 12 years prior to the institution of the suit based on the evidence of witnesses who testified that she had been cultivating the land after the death of Nilamani.
Final Decision: The appeal was dismissed subject to the claim of a share by the appellant if any, which shall be determined in a separate suit as indicated above. The decree passed by the learned Subordinate Judge was modified to the extent that it shall be a preliminary decree which shall give effect to the findings and conclusions recorded above.
K. P. MOHAPATRA, J.
( 1 ) THE appellant who was the sole defendant in the court below has assailed the judgment and decree passed by the learned Subordinate Judge, Bhawanipatna declaring title of respondent 1 (plaintiff 1) in the suit in respect of immovable property described in schs. A and B of the plaint, confirmation of her possession over Sch. B land, directing recovery of possession of Sch. A land and granting mesne profits @ Rs. 326/per year beginning from the year 1972.
( 2 ) THE respondents jointly instituted the suit. Their case, in brief, is that Keshab had three sons namely Trilochan, Khageswar and Nilamani. Khageswar is the defendant-appellant. Respondent 2 is the natural born son of Trilochan and respondent 1 was the legally married wife of Nilamani. The three brothers named above effected partition of joint family property inherited from their father Keshab. In the said partition 19. 06 acres of cultivable land described in the Sch. A and 0. 23 acres of homestead land consisting of a house described in Sch. B of the plaint excluding some other lands which had been transferred fell to the share of Nilamani. As he had no children of his own, Nilamani adopted respondent 2 as his son, but died very early in the year 1960. After his death, the suit property was inherited by respondents and they were in peaceful possession thereof. In October, 1972 however the appellant threatened them with dispossession and so respondent 2 initiated a proceeding under S. 145 of the Cri. P. C. in which the appellant took the plea that he had purchased the suit land and was in possession thereof. The Executive Magistrate by order dt. 24-9-1973 declared appellant's possession and directed delivery of possession to him. That is how the respondents instituted the suit claiming reliefs for title, confirmation of possession, recovery of possession and mesne profits.
( 3 ) THE appellant in his written statement stated that respondent 1 was not the legally married wife of Nilamani, but was his concubine. He did not also adopt respondent 2 as his son who was the only son of Trilochan. Nilamani died in the year 1959-60 leaving behind the suit property and his widow mother. After his death, respondent 1 married one Daya Sunari of Lakhapadar and lived with him as his second wife for about two years and then came away to live with her parents. Thereafter, she married one Prabhakar Payasingh and since then has been living with him as his legally married wife in village Kandel. It is further averred that there was in fact, a partition amongst three brothers, but as Nilamani was of tender age, he re-united with the appellant and continued to live jointly with him till his death, whereafter, his widow mother continued to live with him jointly till she died in the year 1969. While alive, for the purpose of his treatment, Nilamani had sold lands in favour of the appellant by two sale-deeds dt. 11-2-1959 and 19-2-1959 to meet the expenses of his treatment. Thus he was in exclusive and continuous possession of the suit property since 1959-60 and has acquired title in respect thereof. The Executive Magistrate was correct in declaring his possession in the proceeding under S. 145 of the Cri. P. C. Therefore, the respondents are neither entitled to declaration of title, possession nor mesne profits.
( 4 ) THE learned Subordinate Judge held that respondent 1 was the legally married wife of Nilamani, Respondent 2 was not his adopted son, Nilamani did not re-unite to live jointly with the appellant who did not acquire title-in respect of the suit property. On the other hand, respondent 1 being the widow of Nilamani has title and possession over the suit land. Having found as above, the learned Judge declared title of respondent 1 in respect of the suit property and granted consequential reliefs of confirmation of possession, recovery of possession and mesne profits.
( 5 ) MR. K. N. Jena, learned counsel appearing for the appellant, urged that respondent 1 w
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