SARAT CHANDRA PATNAIK Vs. BAIDYANATH PATNAIK

JUDGEMENT

(1.) This appeal arises out of a suit for confirmation of possession of certain land which the plaintiff claimed as reversionary heir of one Batabrishna Patnaik. Defendant 1 had set up a claim to have been adopted by Batakrishna Patnaik and in his capacity of adopted son he-had executed a deed conveying a small piece of property to defendant 2. The trial Court found that defendant 1 had not been adopted by Batakrishna Patnaik and that he had no title to make the conveyance to defendant 2. The plaintiff's suit was decreed.

(2.) Defendant 1 appealed from the decree but defendant 2 did not. The property conveyed to defendant 2 was valued at Rupees 124-4-0 while the rest of; the property forming the estate of Batakrishna Patnaik was valued at Rs. 1216. Defendant 1 in his memorandum of appeal prayed that the, plaintiff's suit might be dismissed in toto but he valued his appeal at Rs. 1216 and he did not join defendant 2 as a respondent.

(3.) When the appeal came on for hearing, an objection was taken before the Subordinate Judge that as defendant 2 had not appealed from the Munsif's decree that decree had become final as between the plaintiff and the defendants in the suit and. therefore the finding of; the Munsif that" defendant 1 was not the adopted son was res judicata determining this question of fact in the appeal before the Subordinate Judge. The appellant offered to amend his memorandum of appeal by increasing the valuation and paying the difference of the court-fee and also by adding defendant 2 as a respondent but the Subordinate Judge did not permit this and the appeal was dismissed.