FAKIR NATH Vs. KRUSHNACHANDRA NATH AND

JUDGEMENT

(1.) THIS appeal has been filed by Defendant No. 1 against the judgment dated 20 -9 -50 of Sri A. Misra, Subordinate Judge of Kenojhar confirming the decision of the trial Court. The Plaintiff's suit is one for declaration of his title on the basis that he is the adopted son of Gopi and for conformation of possession or in the alternative for recovery of possession. One Bauri Nath had four sons, Ainthu, Chaitan, Gopi and Fakir. After the death of Bauri, Ainthu separated from the other three brothers and enjoyed his four annas share separately. Thereafter Fakir (Defendant No. 1) separated and possessed his four annas interest separately since 1335. Chaitan and Gopi remained joint. Chaitan died leaving his two daughters Naba and Lata. Natabar first married Naba and after he death of Naba be also married Lata. The Plaintiff is the natural born son of Natabar and Lata. According to the Plaintiff, be was adopted by Gopi in the year 1945. Defendants 2 and 3 are the sons of Ainthu (deceased). Chaitan died in 1854 and Gopi died only a year after. The Defendants having got their names mutated in respect of the disputed properties threatened to dispossess the Plaintiff. So the present suit has been brought.

(2.) THE defence is that in fact the Plaintiff as never adopted by Gopi who died issueless and unmarried and Chaitan died leaving no male -issue nor any widow. As all the four brothers, that is the sons of Bauri, were joint, the interests of Chaitan and Gopi have passed unto Defendants 1, 2 and 3 by way of survivorship.

(3.) ON the question of adoption, on a thorough examination of oral and documentary evidence adduced on behalf of both parties and taking into consideration a few circumstances the learned lower appellate Court has held, in confirming the finding of the trial Court, that in, fact the Plaintiff was duly adopted by Gopi. Three witnesses were examined on behalf of the Plaintiff to prove actual giving and taking ceremony. P.W. 2 is the astrologer who prepared the horoscope of the child. P.W. 4 is also another witness characterised as independent by the Courts below to prove giving and taking. P.W. 3 is the natural father of the Plaintiff. The case of the Plaintiff is' that the actual giving and taking took place on the 21st day after the birth of the child, that is, the Plaintiff, The Courts below have accepted their evidence as reliable. They have strengthened their judgment by relying upon a very important piece of document (Ext. 1), the registered deed of adoption executed by deceased Gopi on 5 -6 -47. P.W. 1 who is the identifier of Gopi before the registering Officer has proved the document and has also signed the document as identifier, He has stated that Gopi executed the document in a sober state of health and mind at the time and executed it after the contents were read over and explained to him. Indeed, Gopi was blind at the time of the execution of the document. But the Courts below have found the document to be genuine and that Gopi executed it after he was folly aware of the content thereof. The factum of adoption therefore having been concurrently found the true by the Courts below on an elaborate, discussion of both oral and documentary evidence, there is no point of law on which the finding can be challenged.