The suit for declaration of right, title and interest, confirmation of possession and in alternative recovery of possession is maintainable even if the plaintiff is not in possession of the suit property.

JUDGMENT :

A.K. RATH, J.

1. Defendant No. 1 is the appellant against a confirming judgment.

2. Respondent No. 1 as plaintiff instituted the suit for declaration of right, title and interest, confirmation of possession and in alternative recovery of possession in the event she has been dispossessed during pendency of the suit and permanent injunction. The case of the plaintiff is that Manbodh Urmal had a daughter, namely, Ahalya. Ahalya married to Lochan Buda. Lochan stayed in the house of Manbodh as illatom son-in-law. Gura, the plaintiff, and Sumitra, daughters were born out of their wedlock. Ahalya left the village and her whereabouts was not known. Sumitra died issueless. The suit schedule land was recorded in the name of Ahalya. After Ahalya left the village, the plaintiff and her father remain in possession of the land. At present, she is in possession of the land. They used to pay rent. After death of Lochan, the plaintiff remained in possession of the same. The defendant No. 1 made a claim over the suit schedule land. Thereafter she came to know that the defendant No. 1 claiming to be the adopted son of Manbodh mutated the land in his favour. No notice was issued to her or her father.

3. Defendant No. 1, pursuant to issuance of summons, entered appearance and filed written statement denying the assertions made in the plaint. The case of the defendant No. 1 is that Ahalya was the illegitimate child of Manbodh. The whereabouts of Ahalya was not known and she was presumed to be dead. She had no children. The plaintiff was not the daughter of Ahalya. The specific case of the defendant No. 1 is that Manbodh was a widower. He married to her mother. After marriage, he remained in the house of Manbodh as his foster child. Manbodh adopted him as his son about 60 years back. The kisam of the land was choukidari jagiri. The land was never in possession of Ahalya. The same was mutated in his name in Mutation Case No. 216 of 2000. He is in possession of the land since the death of Manbodh. He has also perfected title by way of adverse possession. In the remarks column against plot nos. 331 and 333, the note of forcible possession of Sadhuram Oram and Chamari Oram has been reflected. Similarly, a quarter of forest guard situated over plot no. 279. Since the aforesaid persons are not parties to the suit, the suit was bad for non-joinder of necessary parties.

4. After amendment, Rajaram Oram, Kailash Oram and defendant nos. 3 to 6 have been impleaded. In spite of service of summons, defendant nos. 2 to 6 have chosen not to contest the suit and as such set ex-parte.

5. On the interse pleadings of the parties, learned trial court framed eight issues, out of which, issue nos. 5 and 8 are pivotal issues. They are:

"(V) Whether the plaintiff being the sole legal heir of Manbodh has got absolute right, title and interest over the suit property?

(VIII) Whether the defendant No. 1 is the adopted son of Manbodh having interest over suit property?"

6. To substantiate the case, the plaintiff had examined four witnesses and on her behalf four documents had been exhibited. The defendant No. 1 had examined two witnesses and on his behalf five documents had been exhibited.

7. Learned trial court came to hold that the defendant No. 1 failed to prove that he is the adopted son of Manbodh and accordingly answered issue No. 8 in negative against the defendant No. 1. It further held that the plaintiff has successfully established that she is the sole legal heir of Manbodh. She has right, title and interest over the suit schedule land. She is in possession of the same and accordingly answered the issue No. 5 in favour of the plaintiff. Held so, learned trial court dismissed the suit.

8. Assailing the judgment and decree passed by the learned trial court, defendant No. 1 filed appeal before the learned District Judge, Sundargarh. The same was transferred to the court of the learned Additional District Judge, Sundargarh and renumbered as R.F.A. No. 09/17 of 2010-14. D