FATIK ROUTH, SON OF SRIPATI ROUTH, RESIDENT OF VILLAGE SUNDARBARI, P.O. Vs. THAKUR ROUTH, SON OF LATE RUNA ROUTH

JUDGEMENT

(1.) The main question involved in the present appeal is,

(2.) At the outset, I notice that an issue on the question of adoption of Thakur Routh was not framed by the trial court. The case pleaded by the original plaintiff namely, Tunu Routhain who instituted the suit for decree for partition of her share was that Schedule-A and Schedule-B properties were jointly recorded in the name of Maga Routh and Runa Routh. The plaintiff Tunu Routhain was one of the legal heirs and successors of Maga Routhain who died leaving behind his widow Dabu Bala and daughter Tunu Routhain. The mother of the plaintiff also died before institution of the suit. During their lifetime Maga Routh and Runa Routh possessed the suit properties according to their convenience however, without any partition by metes and bounds and after their death the plaintiff and the defendants also entered into joint possession of the suit properties. The facts pleaded by the defendants was that Maga Routh died about 25 years ago leaving behind his widow Dabu Bala and daughter Tunu Routhain and the adopted son namely, Thakur Routh defendant no. 1. It was further pleaded by the defendants that on 12.07.1958 Thakur Routh was adopted by Maga Routh and a Deed of Adoption was registered in the year, 1958 and thereafter, he started living with Maga Routh and after the death of Maga Routh, Thakur Routh came in joint possession over the suit property along with the plaintiff. It appears that during the trial the defendants led some evidence on the point of adoption of Thakur Routh by Maga Routh and the trial court returned a finding that the defendants failed to establish that the defendant no. 1 Thakur Routh was the adopted son of Maga Routh. The suit was decreed vide judgment and order dated 28.06.2010. The defendants preferred Title Appeal No. 06 of 2010 challenging the aforesaid order passed in Title (Partition) Suit No. 18 of 1999.

(3.) Before the Appellate Court a contention was raised on behalf of the appellants that ignoring the evidence produced on record, the trial court failed to frame an issue on the question of adoption and thus, the judgment in Title (partition) Suit No. 18 of 1999 has been rendered unsustainable. As noticed above, the lower Appellate Court holding that no issue on the question of adoption was framed by the trial court, set aside order dated 28.06.2010 in Title (Partition) Suit No. 18 of 1999.