JUDGMENT : 1. This appeal has been filed against the judgment and decree passed by the learned Addl. District Judge, Nayagarh in RFA No. 19/5 of 2002. The appellant as the plaintiff had filed the suit for partition of the properties described in the schedule of the plaint claiming his half share over the same with other consequential reliefs. The suit having been dismissed, he had preferred an appeal under Section 96 of the Code of Civil Procedure. The same being heard by the learned Addl. District Judge, Nayagarh also stood dismissed. Therefore, the present appeal under Section 100 of the Code has been filed. 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 one Bhagirathi had two sons namely, Dama and Pura. Madhab is the son of Dama whereas Paramananda is the son of Pura. Madhab died leaving behind his son Digambar and Paramananda died leaving behind his son Kanhu. Kanhu’s branch is represented by his grandson Suka, the defendant no,1 and Tilottama, the daughter-in-law (son’s wife), the defendant no.2. Digambar’s daughter is Sashi who is defendant no. 3. The plaintiff claims to be the adopted son of Digambar. It is stated that Karunakar died in the year 1986 and Digambar died in the year 1989. Madhab and Pura were living in a joint family till their death. Thereafter, Digambar and Kanhu continued as such. Likewise after the death of Digambar; Kanhu and his son Karunakar, the plaintiff being adopted son of Digambar and the defendants continued to live in a joint family and the ancestral property including the suit land stood jointly recorded. It is stated that sometime thereafter the plaintiff and defendants separated their cultivable lands and as such they have also alienated the land in their possession as of their share whereas the suit properties are said to have never been partitioned by metes and bounds, the reason being that the same is the homestead land, although the parties have been possessing the same separately in portions as per convenience as finds noted in the record of right. The defendant no. 1 is said to be possessing more lands having further let out a portion of the house standing over the suit land on rent. The defendant no. 1 is said to be possessing more lands having further let out a portion of the house standing over the suit land on rent. Digambar during his lifetime is said to have sold some land in favour of defendant no. 3 who in turn is said to have executed a deed of relinquishment of her right over the rest of the joint family property. It is stated that in course of time, the plaintiff demanded for partition of the suit land by metes and bounds which was not paid any heed to by defendants being in an advantageous position. Therefore, he filed the suit. The defendants in their written statement challenged the status of the plaintiff as the adopted son of Digambar who is said to be the son of the brother of Digambar’s wife. However, it is stated that he was staying in the house of Digambar and was studying in High School. So, he being a stranger his locus standi to claim partition of the property is seriously disputed. It is also stated that there was a complete partition of the land and other lands between Digambar and Kanhu sometime in the year 1956 and accordingly they possessed separate portions of land as of their shares. Defendant no. 3 was initially not made a party to the suit. However, later when she was arraigned in the suit as one of the defendants, she has come to file the written statement in the same vein as that of defendant nos. 1 and 2. 4. On such rival pleadings, the trial court framed nine issues. Coming to the crucial issues with regard to the status of the plaintiff as the adopted son of Digambar as claimed by him and as such his locus standi to file the suit for partition, upon examination of evidence both oral and documentary, finding has been returned against the plaintiff that he has failed to prove that he is the adopted son of Digambar. Next, on examination of evidence, it has been held that there was a complete partition of the suit land as also other lands by metes and bounds between Digambar and Kanhu. So with these findings, the suit has been dismissed. 5. Before the lower appellate court, both these above findings were challenged. Next, on examination of evidence, it has been held that there was a complete partition of the suit land as also other lands by metes and bounds between Digambar and Kanhu. So with these findings, the suit has been dismissed. 5. Before the lower appellate court, both these above findings were challenged. As mandated under the law, the lower appellate court then sat over to examine the sustainability of the above findings. In searching for the answer, it is seen that upon independent analysis of evidence and their evaluation as regards the status of the plaintiff, the same answer has been recorded as it was so rendered by the trial court against the plaintiff as regards the failure on his part to prove his status as the adopted son of Digambar. Elaborate discussion of evidence having been made, it has finally been said that the plaintiff being a stranger to the family has no locus to claim partition of the suit homestead land. On the question of prior partition of the suit land and other land between Digambar and Karunakar, the lower appellate court has concurred with the finding of the trial court by drawing necessary presumption as available under the law from the manner of recording of the suit land as also other lands. 6. In the above state of affair, the unsuccessful plaintiff having lost in both the forums has now filed this second appeal. 7. The appeal has been admitted on the following substantial question of law:- “Whether the courts below are justified in saying that the plaintiff was not the adopted son of Digambar on the face of the documentary evidence such as Ext. 1, the registered deed of adoption containing admission of defendant no.3?” 8. Learned counsel for the appellant submits that both the courts below have fallen in error by not saying that the burden of proof upon the plaintiff to establish the case of adoption stood discharged in view of the admitted case that the plaintiff was residing in the house of Digambar all along since his childhood days as his son together viewing the fact that the adoptive father Digambar had executed the deed of acknowledgement of adoption by stating clearly the factum of adoption of the plaintiff by him when the plaintiff was five years old and when in that document defendant no. 3, the only daughter of Digambar is also a signatory. In view of above, it is contended that the courts below ought to have then gone to examine whether the onus shifting thereby to the defendants how far has been discharged in negating the value of evidence in support of the adoption. It is further contented that here the adoption having taken place long back, the plaintiff has adduced evidence as those are available to establish the factum of adoption with all other evidence to corroborate the same and according to him, those have not been properly weighed and assessed. The conclusion arrived at is thus said to be erroneous. So, he submits that the answer to the substantial question of law is required to be rendered in favour of the plaintiffs claim of adoption and his locus standi to file the suit thus ought to have been held in the affirmative. 9. Learned counsel for the respondents supporting the finding of the trial court as affirmed by the lower appellate court contends that the plaintiff having led direct evidence to establish the factum of adoption cannot again bank upon the theory of ancient adoption and take advantage of it in the matter of being relieved of the burden of proof. It is his contention that on examination of the evidence as piloted by the plaintiff, the courts below have committed no mistake in holding that the burden of proof as regards establishment of case of adoption of the plaintiff by Digambar has not been discharged and in that view of the matter, the courts below have rightly refrained from saying that the onus of proof has shifted to the defendants. He further submits that the courts below for the purpose of deciding the crucial issue of adoption have made detail analysis of evidence on record and there remains absolutely no infirmity there in the matter of appreciation of evidence. So even if another view is possible to be taken, even then unless there remains any legal flaw with the conclusion of the courts below on the factual aspect and it is found that they have committed any wrong by either considering inadmissible evidence for the purpose or by ignoring to take into account any material evidence, in giving due weightage to the same, the concurrent finding of fact is not liable to be interfered with in this second appeal. 10. The plaintiff’s natural father is Madan who is Digambara’s brother-in-law (wife’s brother). The plaintiff’s case is that he is the adopted son of Digambar and as such he claims the partition. The position of law is too well settled that when a case of adoption is projected by a person and is denied by the other, the burden of proof rests upon him who pleads adoption to satisfy the court in proving the factum of adoption as also the recognition in that way all through and in that matter appreciation of evidence stands at a little higher pedestal as in such matter of controversy, acceptance of a claim of adoption deflects the natural course of succession. The rule as above has its departure of course in case of ancient adoption where it is not possible for the party to tender any direct evidence on the factum of adoption and in that case if he proves to the satisfaction of the court by leading evidence in the light of Section 50 of the Evidence Act that he has been enjoying the status as adoption son having the relationship as such as also other circumstances, the onus shifts to the challenger to show in the negative by proving the adverse circumstances. 11. The plaintiff in the suit of the year 1994 has said to be 48 years old and it is his case that he was adopted by Digamber. A plain and simple case is laid that since Digamber had a daughter, he adopted the plaintiff who is the son of his wife’s brother. As regards the ceremony of giving and taking nothing is pleaded and even there remains no pleadings that the natural parents of plaintiff had given the plaintiff in adoption when also the year of adoption has not been pleaded nor the age of the plaintiff as that time. It is thus even not possible to know and the court is kept in dark on that point as to whether it is a case of ancient adoption so as to derive even inference that the plaintiff in spite of all possible effort has not been able to get the direct evidence being no more available. The pleadings being deficient on those scores, the plaintiff has gone to examine a field servant who claims to have been working under Digamber and Kanhu. The pleadings being deficient on those scores, the plaintiff has gone to examine a field servant who claims to have been working under Digamber and Kanhu. He has not breathed a word as to how even the plaintiff and Digamber used to address each other and as regards their living as father and son. His bald evidence is that the plaintiff is the son of Digamber. It makes no sense for the purpose and does not come to the aid of the plaintiff. The witness has also fairly admitted to be ignorant as to when Digamber brought the plaintiff in adoption. The other witness P.W. 2 just says that being a neighbour he knew that the plaintiff was adopted by Digamber. His evidence does not satisfy the basic tests of Section 50 of the Evidence Act meriting the admission and thus putting a stop there without leading to provide any such result favouring adoption upon further appreciation of evidence. His cross-examination has further destroyed his evidence in-chief when he has stated to be not knowing as to from which village the plaintiff came. When at a later stage P.W. 6 has stated the year of adoption to be 1955, the courts below have gone for further critical examination of his evidence. Now oral evidence when has been found to be wholly in sufficient to establish the case of the adoption of the plaintiff by Digamber, this Court does not find the said conclusion to be in any way as the outcome of improper appreciation of evidence much less to say that the same suffers from the vice of perversity. Much is said about the documentary evidence in support of adoption as have been projected for acceptance of the case of adoption and as such the claim of the status of the plaintiff as the adopted son of Digamber. The documentary evidence are Exts. 6, 7 and 9. Ext. 1 is a deed of acknowledgement of adoption which has come into being in the year 1973. The document is conspicuously silent about the year of adoption although the age of the plaintiff has been stated therein to be five years at that time of adoption. Performance of any such specific ceremony is not indicated therein and in a general manner it is stated that as per the prevailing custom everything were done. The document is conspicuously silent about the year of adoption although the age of the plaintiff has been stated therein to be five years at that time of adoption. Performance of any such specific ceremony is not indicated therein and in a general manner it is stated that as per the prevailing custom everything were done. The deed has been executed when the plaintiff was aged about 22 years. There remains absolutely no explanation as to why after about 17 years such a deed stood as the requirement and what was the necessity when evidence is wholly lacking on the score of any apprehension of challenge either from the conduct of any of the family member or from the side of the daughter of Digamber in the direction of challenging the status of the plaintiff as the adopted son and his right as such. Moreover, when it is not stated that the daughter was not having the cordial relationship with the plaintiff as Digamber in or about the year 1973, it does not stand to reason as to why she was not made a signatory to the document so as to put a full stop to the controversy forever in bringing peace and amity in family and happiness as it was not certainly going to act to the total deprivation of daughter. Ext. 7 is a sale deed executed by defendant no. 1 and plaintiff jointly. It is said that since the plaintiff has been described there as the son of Digamber, the defendant no. 1 is bound by it. In the matter of said description of the father’s name of one of the co-executant, the same cannot bind the other co-executant as regards that as the very status of the co-executant. With further description connecting the plaintiff with the land is in question. This is a piece of corroborative evidence and that itself cannot form the basis of finding of adoption when the factum of adoption is not established. Ext. 9, is a deed of gift executed by Digamber. The plaintiff is an attesting witness to it and he has described his status as the son of Digamber. This itself cannot be taken as the admission of Digamber. The deed of gift contains no such clear recital as regards the factum of adoption of the plaintiff by Digambar. Ext. 9, is a deed of gift executed by Digamber. The plaintiff is an attesting witness to it and he has described his status as the son of Digamber. This itself cannot be taken as the admission of Digamber. The deed of gift contains no such clear recital as regards the factum of adoption of the plaintiff by Digambar. Moreover, no hit even has been given to these documents in the pleading and those were proved during the trial coming to be challenged by the defendants. The original documents have neither proved nor any step has been taken for production of the same. Therefore, the lower appellate court has refused to accept those as the secondary evidence so as to be admissible and thus has altogether excluded Exts. 7 and 9 from consideration. On the other hand, the witnesses examined on behalf of the defendants have denied the status of the plaintiff as adopted son of Digamber, although they admitted that only for the purpose of education he was staying with Digamber in his house. The courts below are found to have examined critically the evidence both oral and documentary as tendered by the parties. The appreciation of evidence is found to have been made being alive to the settled position of law governing the field. In the premises as above, this Court finds no such infirmity with the findings which have been finally recorded by the courts below. Aforesaid discussion and reasons, accordingly provide the answer to the substantial questions of law which run against appellant. 12. Resultantly, the appeal stands dismissed. In the facts and circumstances, there is however no order as to cost.