Research › Search › Judgment

Orissa High Court · body

2016 DIGILAW 1009 (ORI)

Khadali Sahu v. Malli Sahuani

2016-11-01

D.DASH

body2016
JUDGMENT : The appellant in this appeal has challenged the judgment and decree passed by the learned Civil Judge (Sr. Division), Bhanjanagar in Title Suit No.23 of 1987. This appellant as the plaintiff had filed the suit for partition of the suit properties claiming his 2/3rd share with allotment of 1/6th share to defendant nos.2 and 3 and for further declaration that the registered deed of gift executed by defendant no.1 on 22.10.1982 in favour of defendant no.2 and the registered sale deed executed by defendant no.1 in favour of defendant no.3 on 26.08.1986 as null and void. The suit has been dismissed. 2. For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the trial court. 3. Plaintiff’s case is that he is the natural born son of Magata and Mahadei who is the sister of defendant no.1. The defendant no.1 and his wife, namely again Mahadei had no issue of their own. So, they expressed their desire to the natural parents of the plaintiff to take the plaintiff in adoption and accordingly requested them to give the plaintiff in adoption to them. The request was accepted by the natural parents of the plaintiff. The plaintiff, who was then seven years old was taken in adoption by performance of necessary ceremony in the house of the defendant no.1 in the year 1940 on the auspicious day of Sripanchami. The natural parents of the plaintiff physically handed over the plaintiff to the defendant no.1 and his wife Mahadei who took him in adoption. This was done in presence of relatives and other villagers. It is stated that since that time onwards, the plaintiff resided in the house of defendant no.1 as his adopted son. When the matter stood thus, the wife of defendant no.1, namely, Mahadei fell ill and remained confined to bed for a long time. So, in order to avoid the difficulty in managing the household affairs, the defendant no.1 again married defendant no.2. Out of the said wedlock, defendant no.3 was born. Thereafter, Mahadei gradually recovered from his illness. However, despite all these later developments, the plaintiff continued to stay in the house with the adoptive parents as before and also with the defendant nos.2 and 3 under one roof in the joint family. Out of the said wedlock, defendant no.3 was born. Thereafter, Mahadei gradually recovered from his illness. However, despite all these later developments, the plaintiff continued to stay in the house with the adoptive parents as before and also with the defendant nos.2 and 3 under one roof in the joint family. It is said that the parties are Hindus and governed by Mitakshara School of Hindu Law. It is the further case of the plaintiff that in the year 1955, the defendant no.1 got him married and performed his marriage ceremony as his adoptive father. Thereafter since there was an increase in the members of the family, the defendant no.1 faced financial difficulty. For this reason to tide over the difficulty, the plaintiff left for Rourkela in the year 1958 to earn his livelihood and there he worked as a temporary employee. In the year 1963, his service became permanent and then he took his wife and children to his working place at Rourkela where they resided. The defendant no.3 being grown up was given in marriage by defendant no.1 and the plaintiff. She thereafter stayed with her husband in her marital home. It is stated that the plaintiff was regularly sending money to defendant no.1 and with the help of the said money as also utilizing the surplus income of the joint family properties, the defendant no.1 began to purchase the landed properties in his own name. Nonetheless, such properties were treated as the joint family properties for all purpose from the very beginning. On 18.03.1968, the defendant no.1 out of his own volition executed a deed of acknowledgement of adoption of the plaintiff by admitting the factum of adoption stating it to have taken place on the auspicious Sripanchami day of the year 1940. Mahadei, the adoptive mother of the plaintiff passed away in the month of March, 1986. The plaintiff and his family members then came to the village to perform the Sudhi Kriyas and after that again left for Rourkela. It is alleged that the defendant no.2 taking advantage of the old age of defendant no.1 exercising undue influence brought defendant nos.3 and her husband to their house on the pretext of taking his care. Thus, defendant nos.3, her husband and children came to reside in the house of defendant no.1. It is alleged that the defendant no.2 taking advantage of the old age of defendant no.1 exercising undue influence brought defendant nos.3 and her husband to their house on the pretext of taking his care. Thus, defendant nos.3, her husband and children came to reside in the house of defendant no.1. It is during this period of stay, the defendant nos.2 and 3 polluted the mind of defendant no.1 and created a registered Will in favour of defendant no.3 in respect of the properties of defendant no.1. The defendant no.1 then was also further misguided and prevailed upon to cancel the deed of acknowledgement of adoption of the plaintiff by executing another deed of cancellation. On 17.07.1986, by exercise of undue influence, the defendant no.1 was made to execute a gift deed in favour of the defendant no.3. It is next alleged that the defendant no.4, who was a field servant under defendant no.1 working since childhood and as such was having considerable influence upon defendant no.1, joined hands with defendant nos.2 and 3 in that mission in obtaining those documents from defendant no.1. Mahadei, the first wife of defendant no.1 had her separate properties. She prior to her death and to the knowledge of defendant no.1 had executed Will in respect of her properties bequeathing those in favour of the plaintiff’s wife wherein the defendant no.1 had stood as an attesting witness. These properties however are not the subject matter of the suit. On 01.08.1986, when the plaintiff came to know about the deed of cancellation of the deed of acknowledgment of adoption executed by defendant no.1, the deep rooted conspiracy hatched against him was unearthed that it was to deprive him of the properties as the adopted son of defendant no.1 So, he filed the suit. 4. The defendant nos.1 to 3 have averred that the plaintiff was never adopted by defendant no.1 and his wife Mahadei at any time. However, they admit the plaintiff to be the son of defendant no.1’s sister. It is stated that since the plaintiff was not having any paternal property in his native village, he was dependent upon the defendant no.1 and was rendering assistance to him for the cultivation of lands. Therefore, he was coming frequently and staying with the defendant no.1 as also remaining in the management of cultivable properties of the defendant no.1. It is stated that since the plaintiff was not having any paternal property in his native village, he was dependent upon the defendant no.1 and was rendering assistance to him for the cultivation of lands. Therefore, he was coming frequently and staying with the defendant no.1 as also remaining in the management of cultivable properties of the defendant no.1. It is also stated that either defendant no.1 or his wife Mahadei had never given out to others as also in the society in any manner or by show of any such conduct that defendant no.1 was their son. They also denied about the ceremony of adoption to have ever taken place on the Sripanchami day of the year 1940. It is alleged that the plaintiff during his visit influenced Mahadei that he wanted a document for being armed with to effectively manage the property in case of necessity. With that misrepresentation, he obtained a document from defendant no. 1 which was registered being styled as a deed of acknowledgment of adoption. It is stated that the defendant no.1 was not at all aware of such nature of the deed and about the description of the plaintiff as made therein as his adopted son. It is stated that the plaintiff was then about 45 years although mentioned therein as 35 years. For the second marriage of the defendant no. 1 with defendant no.2, his first wife Mahadei was unhappy and had developed little soft corner towards the plaintiff who is alleged to have taken advantage of the same at a later point of time by getting a Will from Mahadei created in favour of his wife showing bequeath of Mahadei’s properties, which was held by defendant no.1 in benami in the name of Mahadei. It is next stated that defendant no.1 was very young and his father was alive and was in management of the family properties. So, at that age, it cannot be even be conceived that they had lost all the hope of begetting a child giving rise to the need of adopting a son or even directing any thinking in that light. The defendant no.1 has also denied to have received any money from the plaintiff. Thus, it is pleaded that the plaintiff has absolutely no manner of right, title, interest and possession over the suit property and he was never a member of the joint family. The defendant no.1 has also denied to have received any money from the plaintiff. Thus, it is pleaded that the plaintiff has absolutely no manner of right, title, interest and possession over the suit property and he was never a member of the joint family. In this way, has no locus to seek partition by filing the suit. The so-called Will purported to have been executed by Mahadei in favour of Sita, the plaintiff’s wife is said to be a fraudulent one. 5. With the above rival case, the trial court has framed the following issues:- (i) Whether the plaintiff has any cause of action to file the present suit? (ii) Whether the plaintiff is the adopted son of the deceased defendant no.1-Arjuna Sahu ? (iii) Whether the gift deed dated 22.10.82 executed by defendant no.1 in favour of the defendant no.4 is avoid and inoperative? (iv) Whether the plaintiff has any manner of right, title, interest and possession over the suit properties? (v) Whether the registered gift deed No.4607 dated 22.10.82 and regd. Gift deed no.3395 dated 26.8.86 are void and inoperative? (vi) Whether the plaintiff is entitled to the reliefs sought for ? 6. First of all, taking up the most important issue which goes to the root and touches the foundation of the suit as laid and for the reliefs claimed, upon analysis of evidence in the touchstone of the pleadings at its level further stating the settled position of law holding the field particularly as to the burden of proof lying on the plaintiff, at last the answer to it has been:- “The plaintiff has signally failed to prove that he is the adopted son of the deceased defendant no.1-Arjuna Sahu. Hence Issue No.2 is answers in the negative” Next going to find out answer to issue no. 3, it has been held:- “6. Issue No.3:-In this case neither party has adduced evidence to show that the gift deed dated 22.10.82 executed by defendant no.1 in favour of the defendant no.4 is void in any manner. Ext.7 is the certified copy of the registered gift deed executed by defendant no.1 in favour of the defendant no.4. In the written statement, the defendant no.1 has admitted that he gifted lands to the defendant no.4 by registered gift deed on his own accord because the defendant no.4 was his trusted servant. Ext.7 is the certified copy of the registered gift deed executed by defendant no.1 in favour of the defendant no.4. In the written statement, the defendant no.1 has admitted that he gifted lands to the defendant no.4 by registered gift deed on his own accord because the defendant no.4 was his trusted servant. The plaintiff has not adduced any evidence to show that the registered gift deed, Ext. 7 is void in any manner. Hence there is no reason to conclude that the registered gift deed in favour of the defendant no.4 is void and inoperative in any way. Hence Issue No.3 is answered in the negative.” With the above findings, the answers to the other issues no. 1, 4, 5 and 6 have followed against the plaintiff. 7. The unsuccessful plaintiff now assails the above findings of the trial court. The grounds of challenge are mainly that the finding on issue no. 2 is not only against the weight of evidence both oral and documentary on record being not duly appreciated in their proper prospective but also by not correctly applying the settled law covering the subject. 8. Learned counsel for the appellant in course of hearing has placed the evidence giving much stress upon the same in contending that the available evidence when viewed with all the circumstances as were then prevailing and other factors as those emerge out of evidence as also the open and long conduct of the parties would clearly lead to answer the issue no. 2 in favour of the plaintiff. A petition under Order-41, Rule 27 has also been filed from the side of the appellant to adduce additional evidence which has been numbered as Misc. Case No.5 of 2015. It may be stated here that said evidence which are sought to be adduced as additional evidence is one registered sale deed dated 27.09.1968 whereby the plaintiff has purchased some property from one Laxmi Narayan Patnaik; few old letters purported to have been written by the defendant no.1 to the plaintiff and some money order receipts. The objection has been filed by the respondent. This matter will be considered in course of discussion to follow. 9. Learned counsel for the respondents submits all in favour of the finding recorded by the trial court. The objection has been filed by the respondent. This matter will be considered in course of discussion to follow. 9. Learned counsel for the respondents submits all in favour of the finding recorded by the trial court. His further submission is that here the plaintiff has not set up a case of ancient adoption as he has led direct evidence on the factum of adoption. So, the burden of proof of the very factum of adoption with those ceremonies which are the mandatory requirements of law as also prevalent under the caste and custom of the parties lies upon the plaintiff. Thus, the plaintiff having failed to discharge the same by leading evidence of that nature and character, free from any such blemish for recording a finding of his adoption by defendant no.1 and his wife Mahadei, has been rightly non-suited. It is also his submission that when the factum of adoption has not been proved, other evidence showing some circumstances and conduct are of no value and inconsequential as those would have then stood to corroborate but can’t form the foundation. In this connection, he has also placed the oral evidence together with some other features emanating from evidence showing the improbabilities. It is also his submission that the finding on the other issue, i.e., issue no.3 recorded by the trial court is not at all a flawed one and the suit has rightly been dismissed. The respondents have also filed a petition under Order-41, Rule-27 of the Code which has been numbered as Misc. Case No. 82 of 2016 to adduce additional evidence such as one death certificate of Gandhi Swain, the son of plaintiff, Khadali Swain and the legal heir certificate of said Gandhi Swain. These are for the purpose of showing that the surname of Khadali, the plaintiff as also his sons continued as ‘Swain’ and not ‘Sahu’ which ought to have been in view of the adoption of Khadali as claimed to have been made by Arjun Sahu. What I find these facts of showing the surname as ‘Swain’ is not disputed on facts but have been to some extent explained which would be discussed in course of discussion to follow. This matter would be taken up and dealt at appropriate stage. 10. What I find these facts of showing the surname as ‘Swain’ is not disputed on facts but have been to some extent explained which would be discussed in course of discussion to follow. This matter would be taken up and dealt at appropriate stage. 10. In this appeal the crucial issue that arises is as to whether the plaintiff was adopted by the defendant no.1 and his first wife Mahadei. Therefore, keeping the rival submission as above in mind, the evidence needs examination in the touch stone of the rival pleadings to come to judge the sustainability of the finding of the trial court on that issue. 11. The settled position of law is that since an adoption results in changing the course of natural succession, depriving other heirs of their rights and transferring properties or interest therein to comparative strangers or more remote relations, it is necessary that the evidence to support it should be such that it should be free from all suspicion or fraud and must be consistent and probable as to leave no occasion for doubting its truth. (Sri Kishori Lal Vrs. Mst. Chaltibai, AIR 1959 SC 504 ). Thus one who stakes any claim by virtue of adoption takes upon himself, the burden of establishing that there had been the valid adoption deflecting the ordinary cause of succession as well as the legality based upon the fact of giving and taking. The document of acknowledgement of adoption with said recitals are not themselves sufficient to constitute legal adoption in the absence of evidence of about actual giving and taking. The object of the corporeal giving and receiving in adoption is obviously to secure due publicity. To achieve this object, it is essential to have a formal ceremony. Although no particular form is prescribed for the ceremony yet the law requires that natural parents shall hand over the adoptive child and adoptive parents shall receive the child. The nature of ceremony however may vary depending upon the circumstances of each case. To achieve this object, it is essential to have a formal ceremony. Although no particular form is prescribed for the ceremony yet the law requires that natural parents shall hand over the adoptive child and adoptive parents shall receive the child. The nature of ceremony however may vary depending upon the circumstances of each case. The law is fairly settled that only where a case of an ancient adoption is set up and it is seen that there has been lapse of long period between the adoption and the time when it is questioned, every allowance for the absence of evidence to prove such fact must be favourably entertained as after long lapse of period, direct evidence to prove adoption may not be available. 12. It has been held in case of L. Debi Prasad Vrs. Smt. Triveni Devi; AIR 1970 SC 1286 :- In the case of all ancient transactions, it is but natural that positive oral evidence will be looking passage of time gradually wipes out such evidence. Human affairs often have to be judged on the basis of probabilities. Rendering of justice will become impossible of a particular made of proof is insisted upon under all circumstances. In judging where an adoption pleaded has been satisfactorily proved or not, we have to bear in mind the lapse of time between the date of alleged adoption and the date on which the concerned party is required to adduce proof. In the case of adoption is said to have taken place years before the same is questioned, the most important evidence is likely to be that the alleged adoptive father held out the person claiming to have been adopted as his son; the latter treated the former as his father and their relations and friends treated them as father and son. There is no predetermined way of proving any fact. A fact is said to have been proved where after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case to act upon the supposition that it exists. Hence, if after taking an overall view of the evidence adduced in the case, we are satisfied that the adoption is true, we must necessarily proceed on the basis, in the evidence to the contrary that it is a valid adoption. Hence, if after taking an overall view of the evidence adduced in the case, we are satisfied that the adoption is true, we must necessarily proceed on the basis, in the evidence to the contrary that it is a valid adoption. The above view has been followed in a number of cases of this Court as also other Courts. The mode of proof of the factum of adoption is guided by the above principles and regulated accordingly. In case of Sri Kanchumarthi V. S.C. Row Vrs. Kanchumarthi Raju; AIR 1925 PC 201 , approved by the Apex Court in case of Voleti Venkata Ramarao Vrs. Kesaparagada Bhaskararao; AIR 1969 SC 1359 , it has been held authoritatively that in the case of an ancient adoption, it stands to reason that after very long term of years and a variety of transactions of open life and conduct upon the footing that the adoption was a valid act, the burden must rest heavily upon him who challenges its validity. 13. The law is equally well settled that where direct evidence is available for establishing the ceremony of adoption irrespective of lapse of time, the relaxation permissible in case of an ancient adoption is not available. The cases of Jadumani Vrs. Padan; (1968) 34 CLT 778, and Jagannath Vrs. Chanchala AIR 1973 Orissa 160 have been referred to. 14. In case of Sitaram Nai Vrs. Purnamal Souar; AIR 1985 Orissa 171, the Division Bench of this Court have held as under:- “A conspectus of number of authorities unequivocally lays down the rule that a person who claims title on the basis of adoption must prove the adoption and it has to be established that the essential ceremony of giving and taking did take place. That burden however shifts to the person who challenges the adoption to disprove the adoption when an account of long lapse of years, direct evidence of giving and taking have disappeared. But if direct evidence is available, then the burden would not shift and the person who claims title on the basis of adoption must discharge that burden. That apart, we have examined the evidence adduced on behalf of the defendants carefully and in our opinion, even the defendants have not been able to establish that there has been a variety of transactions of open life and conduct upon the footing of the adoption of defendant no. 2. That apart, we have examined the evidence adduced on behalf of the defendants carefully and in our opinion, even the defendants have not been able to establish that there has been a variety of transactions of open life and conduct upon the footing of the adoption of defendant no. 2. Under section 50 of the Evidence Act, the essential requirements are:-(i) there must be a case where the court has to form an opinion as to the relationship of one person to another; (ii) in such a case, the opinion expressed by conduct as to the existence of such relationship is a relevant fact; (iii) but the person whose opinion expressed by conduct is relevant, he must be a person who as a member of the family or otherwise, has special means of knowledge on the particular subject of relationship (Dolagobind Paricha Vrs. Nimai Charan Mishra; AIR 1959 SC 914 ) What is relevant is the opinion expressed by conduct and opinion means something more than mere relating of gossip or of hearsay; it means judgment or belief, that is, a belief or conviction resulting from what one thinks on a particular question. Section does not make evidence of mere general reputation admissible as proof of relationship. It is the conduct or onward behaviour which must be proved in the manner laid down in section 60 of the Evidence Act. 15. Keeping the above settled positions in mind, let us now go to scrutinise first, the oral evidence coming from the lips of the witnesses examined by the plaintiff. It may be kept in view that the plaintiff is the son of the sister of the defendant no. 1 and as such his nephew. Therefore, his visit to the house of the defendant no. 1 and stay as also being provided with some help by the defendant no. 1 as such are nothing special to be taken note of. The plaintiff has stated that he had been adopted by Arjun and Mahadei when he was four to five years old and has gone to further say even to the extent that Arjun and Mahadei had requested his natural father for the purpose. These are quite improbable. 1 as such are nothing special to be taken note of. The plaintiff has stated that he had been adopted by Arjun and Mahadei when he was four to five years old and has gone to further say even to the extent that Arjun and Mahadei had requested his natural father for the purpose. These are quite improbable. Assuming for a moment that being over anxious it has been so said, at the cost of repeatation, it may be stated that the relevant pleading as regards adoption is at para-2 of the plaint. The day, month and year have been stated i.e. the Sripanchami Day of the year 1940. It has also been stated that there was the giving and taking ceremony in presence of the friends, relatives and villages. So, from that day plaintiff remained in the house of defendant no.1, the so called adoptive father and Mahadei, the adoptive mother. The reason for the same is said that as after some years of marriage, they did not beget any child they went for it. The age of the plaintiff then is said to be seven years. When we examine the evidence, it is seen that he himself has ventured to take that grave risk of depending upon his memory which he could have otherwise easily avoided. The plaintiff nowhere has stated that the none of those relations present then are alive and as such the evidence from their lips are no more available. He has stated that when he was around 18 years, Mahadei fell ill and so defendant no. 1 went for second marriage and within one year therefrom, the defendant no. 3 was born. It is there in the evidence that in the year 1958, the plaintiff left for Rourkela to seek service and by that time, he was married which had taken place in the year 1955. The deed of acknowledgement of adoption is of the year 1968 and it is said that defendant no. 1 wanted to keep it in writing for the sake of evidence and so did it. The deed of acknowledgement of adoption is of the year 1968 and it is said that defendant no. 1 wanted to keep it in writing for the sake of evidence and so did it. But there remains no explanation as to why after the gap of long 28 years there occasioned the need of executing this deed of acknowledgement and when no evidence surfaces that at that time there had arisen any such reason even to doubt that the status of the plaintiff as such might face challenge or that it was so brewing. One important fact be noted that as per plaint case Mahadei died in the year 1986. 16. The suit has been filed in the year 1987, wherein the plaintiff has shown the age of the so called adoptive father, defendant no. 1 to be 89 years. Then plaintiff had proved the document i.e., deed of acknowledgement of adoption upon which he very much relies in support of his case. The certified copy of the same is marked as Ext. 1, accepting the explanation that the original has been taken by the defendants. In the said deed of the year 1968, Arjun’s age has been mentioned as 60 years. So from that if we compute back to the year 1940, when the adoption is said to have taken place, the age of Arjun, the defendant no. 1 at the time of taking plaintiff in the so called adoption comes to 32 years. The plaintiff has avoided to state the approximate age of the defendant no. 1 in his evidence. However he in his evidence has admitted the age of the so called adoptive mother Mahadei to be 23 years at the time of adoption. So, a couple at such young age would be losing all the hope of begetting a child and deciding to adopt does not stand to reason and is extremely difficult to believe and rather it leaves ample room to raise the eye-brows on truthfulness of the version as regards their decision to adopt and to accordingly go ahead. 17. So far as the ceremony of the giving and taking is concerned, the plaintiff himself is the lone witness. He does not name a single relation or well wisher although he states that such persons were present. 17. So far as the ceremony of the giving and taking is concerned, the plaintiff himself is the lone witness. He does not name a single relation or well wisher although he states that such persons were present. He has not named the priest; and even does not say as to where the ceremony of giving and taking took place. If we read the entire evidence of P.W. 1, he has not even stated as regards the long conduct of the parties and all other details with reference to the same except stating that he did the Sudhi Kriya and was residing which are not of such great significance on the face of his erstwhile relationship. The other witness has no direct knowledge. He is a tenant under the plaintiff. He simply says that he had heard about the adoption. He is also silent as to what are the special features which had been marked for a long time giving rise to a strong inference in his mind on that score. It stands almost admitted that the surname of the defendant no. 1 has remained as ‘Swain’ which is another suspicious feature touching the claim of his adoption that it should have been normally ‘Sahu’ in that event. Then surname is said to have been changed long after by an affidavit but then also it is not stated as to in which year. The children of defendant no. 1 also carry surname ‘Swain’; there is no explanation on this score. Service records of the plaintiff admittedly stand with said surname ‘Swain’ and most importantly with the father’s name as Magata, the natural father. The plaintiff has also avoided in his evidence to tell the truth about the surname of his children that they have been mentioning. He rather states to have no knowledge as to what surname his children are writing which reflects his intention to avoid on that aspect knowing it to be a circumstance contrary to his case of adoption as set up. Plaintiff has six sons and two daughters. The case of the plaintiff is that his eldest son Gandhi and another were born in the village and that too in the house of defendant no. 1. The plaintiff states to have not mentioned during admission of the children in the schools, their surname as ‘Sahu’. These are all the oral evidence. Plaintiff has six sons and two daughters. The case of the plaintiff is that his eldest son Gandhi and another were born in the village and that too in the house of defendant no. 1. The plaintiff states to have not mentioned during admission of the children in the schools, their surname as ‘Sahu’. These are all the oral evidence. That apart no other evidence has been adduced on behalf of the plaintiff as regards variety of transactions of open life and conduct upon the footing of the adoption. No person either as a relation or otherwise having special means of knowledge on the particular subject of relationship has been examined. If we come to the documentary evidence when it has been admitted by the plaintiff that Ext. 1 was executed as per desire of the defendant no. 1 and his wife Mahadei, the adoptive parents, Mahadei is not a party to the document and there remains no explanation for the same. Some letters have been proved from the side of the plaintiff and now other letters as well as some money order receipts are sought to be adduced as additional evidence so as to provide support to the claim of adoption. But merely basing upon those let us say even accepting those as placed to conclusively record a finding on adoption is not permissible in law when the position of the evidence as regards adoption remains as aforesaid. 18. Thus on overall analysis of evidence, I am not in a position to arrive at a conclusion to record the finding on issue no.2 holding the plaintiff to be the adopted son of defendant no.1 and Mahadei. When such stands the finding that the plaintiff has failed to prove the adoption by leading clear, consistence and acceptable evidence as regards the performance of ceremony of adoption by giving and taking and continuing to stay in the house of defendant no.1 being his adopted son since 1940 onwards, I do not think that even if the documents which have been sought to be as additional evidence are admitted in evidence as such and taken to have been proved, those would come to the aid of the plaintiff in answering this issue in his favour. The Misc. Case No. 5 of 2015 filed by the appellant stands accordingly disposed of. In view of above, the Misc. The Misc. Case No. 5 of 2015 filed by the appellant stands accordingly disposed of. In view of above, the Misc. Case No. 82 of 2016 of filed by the respondents does no more survive for consideration and stands disposed of accordingly. 19. Next coming to issue no.3 as stated at paragraph-6 judgment of the trial court which have been already quoted; with the above finding that the plaintiff is not the adopted son of defendant no.1 and Mahadei, the consequential answer comes that he is having no right over the property, and as such has no right to challenge the gift and sale deed executed by defendant no.1. In view of aforesaid, the suit at the instance of the plaintiff as laid for the reliefs claimed is held not maintainable in law. The findings of the trial court; accordingly standing affirmed, thus leads this Court to confirm of the final order of dismissal of the suit. 20. The appeal is accordingly dismissed. However, in the facts and circumstances without cost throughout.