JUDGMENT This appeal has been filed by the unsuccessful defendants challenging the judgment and decree dated 10.05.2002 and 28.06.2002 respectively, passed by the learned 2nd Additional Civil Judge (Sr. Division), Cuttack in Title Suit No. 522 of 1996. The respondent No.1 as the plaintiff has filed the suit for partition of the property described in Schedule-A of the plaint; for a declaration that the sale-deeds executed by the original appellant no. 1 and 2 (defendant No. 1 and 2) in favour of other respondents (defendant no. 3 to 12) are invalid and for restraining those defendants from interfering with the peaceful possession of the suit land. 2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the trial Court. 3. The plaintiff’s case is that the suit land described in Schedule-A of the plaint and other properties belonged to late Dhruba Charan Swain who died in the year 1992, leaving behind the widow defendant No. 1 and the plaintiff as the only daughter. It is further stated that after the death of Dhruba, the plaintiff was looking after the cultivation carried over those lands of her father Dhruba with the help of her husband. The plaintiff further states that the said properties have never been partitioned by metes and bounds, either during the lifetime of Dhruba or after his death with the land standing recorded in the settlement and consolidation operation in the name of Dhruba, the father of the plaintiff. It is stated that the defendant No. 2 has no manner of right, title and interest over the suit land and he is not the son of Dhruba Charan Swain. The plaintiff asserts that one Ananta Swain of village Gopalpur is the father of defendant No.2. It is stated that being a neighbour, the defendant No. 2 used to visit the house of Dhruba, where the defendant No. 1 was residing alone after the death of Dhruba, although this plaintiff was occasionally visiting and during that period, taking advantage of the absence of the plaintiff, he has got some properties fraudulently sold to outsiders, better described in Schedule-B of the plaint, projecting himself to be the son of Dhruba Charan Swain. It is further stated that defendant no. It is further stated that defendant no. 1 being an illiterate pardanasin lady having been persuaded by defendant No. 2 affixed her thumb impressions on those sale-deeds. It is further stated that those sale-deeds have been created by the defendant no. 2 by way of misrepresentation and he had got fraudulently sold those lands to defendant No. 3 to 12. It is also stated that defendant No. 1 due to old age had lost her mental balance and was made to affix her thumb impressions on the deeds without knowing the contents of the same and also the nature. So, all those sale-deeds bearing nos. 2091 to 2100 (10 nos.) dated 03.05.1996 purported to have been executed by defendant No. 1 and 2 in favour of defendant No. 3 to 12 are said to be void and to have conferred no title upon the purchasers. It is also stated that the defendant No. 1 had never been paid with any consideration in respect of any such sale transaction and the plaintiff has not received any consideration towards her share. So, the plaintiff has filed the suit for partition of Schedule-A properties with the declaration that the registered sale-deeds bearing Nos. 2091 to 2100 dated 03.05.1996 purported to have been executed by the defendant Nos. 1 and 2 in favour of defendant Nos. 3 to 12 as invalid and thus to have not conferred title on the defendant nos. 3 to 12 in respect of the land covered thereunder. The plaintiff has also prayed to permanently injunct the purchaser-defendant Nos. 3 to 12 from interfering with her peaceful possession of the suit land. 4. The defendant Nos. 1 and 2 filing the joint written statement at the outset have raised the question of locustandie of the plaintiff to file the suit stating inter alia that she is not the daughter of Dhruba Swain and to be the daughter of Uttam Swain, who happens to be the brother of Dhruba. It is stated that the father, brother and sister of the plaintiff, are leaving and finding the defendant No. 1 to be an old lady and defendant No. 2 to be the only son, the plaintiff is trying to lay hands on the properties of Dhruba. It is their case that Dhruba died in the year 1992 leaving behind his widow defendant no. 1 and the only son defendant No. 2. It is their case that Dhruba died in the year 1992 leaving behind his widow defendant no. 1 and the only son defendant No. 2. It is also stated that neither the plaintiff nor her husband have ever looked after the cultivation over the suit lands and they had absolutely no occasion to do so. It is further stated that defendant No. 2 is not the son of Ananta as has been averred at by the plaintiff. They assert that no such person namely Ananta is there in village Gopalpur. It is also the case of the defendant Nos. 1 and 2 that they have been residing together all along till now as mother and son and for their necessity, they have sold the Schedule-B properties to the defendant Nos. 3 to 12 which they are competent to do so being the lawful owners. They state that the plaintiff is a stranger to the family. It is also stated that though the defendant No. 1 is an illiterate old lady, she has executed all those sale-deeds consciously and she with her son have rightfully sold the land of Schedule-B to other defendants for valuable consideration. It is stated that defendant No. 1 had never lost her mental balance and had affixed her thumb marks on the sale-deeds in question knowing the contents, as also the nature. The defendant nos. 1 and 2 further assert all those sale-deeds to be valid, binding and supported by payment of consideration. They state that they have duly sold the land to the defendant nos. 3 to 12 on receipt of valuable consideration and have delivered possession of those lands to those purchasers who are now in possession of their respective purchased lands. It is stated that the plaintiff has never enjoyed the property either directly or indirectly nor has received any benefit out of the same which she is not entitled to get. 5. The defendant Nos. 3 to 12 have asserted to have duly purchased the land under Schedule-B from the defendant nos. 1 and 2 who are the owners on payment of valuable consideration and they have also stated to have taken the physical possession on their purchased land being so delivered by the defendant Nos. 1 and 2 and to be continuing as such. 3 to 12 have asserted to have duly purchased the land under Schedule-B from the defendant nos. 1 and 2 who are the owners on payment of valuable consideration and they have also stated to have taken the physical possession on their purchased land being so delivered by the defendant Nos. 1 and 2 and to be continuing as such. They state that all those sale-deeds are valid and binding for the purpose and the plaintiff’s challenge is said to be having no foundation. They also state that the plaintiff has no right over the property as she is not the daughter of Dhruba and therefore she can’t impeach the sale-deeds executed by the defendant nos. 1 and 2 in favour of all these defendants. 6. The trial Court with the above rival pleadings has framed as many as seven issues, which are:- (i). Whether the suit is maintainable under law? (ii). Whether the plaintiff has got any cause of action to file the suit? (iii). Whether the plaintiff and defendant No. 2 are sons and daughter of deceased Dhruba Charan Swain? (iv). Whether the plaintiff has got any right, title, interest over the suit property being the successor of Dhruba Charan Swain? (v). Whether the suit property has been partitioned between them in metes and bounds? (vi). Whether the sale deed executed by defendant No. 2 is declared null and void? (vii) To what other reliefs the plaintiff is on titled to? 7. As it appears, the entire fate of the suit is dependant upon the findings on issue nos. 3 and 4. The answer to these two issues concerns with the status of the plaintiff and defendant no. 2 with their relationship with Dhruba Charan Swain, if any and consequentially, their right, title and interest over the property in question. The trial Court has therefore rightly taken those two issues together for decision. It has answered in this way that the plaintiff is the daughter of Dhurba, and the defendant No. 2 is the son of Dhurba. The trial Court has found the plaintiff and defendant No. 2 to be having equal right over the property in question and accordingly has directed for allotment of half share to the plaintiff and equal share to the defendant No. 2 followed by drawal of preliminary decree for partition in accordance with that. 8. The trial Court has found the plaintiff and defendant No. 2 to be having equal right over the property in question and accordingly has directed for allotment of half share to the plaintiff and equal share to the defendant No. 2 followed by drawal of preliminary decree for partition in accordance with that. 8. It is pertinent to mention here that the plaintiff has not questioned the finding that the defendant No.2 is the son of Dhruba and consequential allotment of share to said defendant No. 2. She has neither filed any appeal nor cross-appeal/cross-objection on receipt of notice of hearing of the present appeal filed by the defendant No. 1 and 2. 9. Learned counsel for the appellants submits that the finding of the trial Court that the plaintiff is the daughter of Dhruba is not at all the result of just and proper appreciation of evidence upon due examination and proper analysis of evidence, both oral and documentary. According to him, the trial Court ought to have held that the plaintiff has failed to prove her relationship with Dhruba as his daughter. In this connection, he has invited the attention of this Court to the relevant portions of the judgment which would be referred to in course of discussion to follow. While going to judge the sustainability of the answers given under issue Nos. 3 and 4, he submits that the trial Court even on its own saying could not have favoured the plaintiff with the finding that she is the daughter of Dhruba. He next submits that the trial Court has rightly found that the defendant No. 2 is the son of Dhruba which has not been called in question by the plaintiff either before or after receipt of notice of hearing of this appeal. In this connection, he submits that the trial Court has not taken into account the version of the widow of Dhruba denying the status of the plaintiff to be her daughter through Dhruba and admitting the status of the defendant no. 2 as their son and that being very important piece of evidence, has been given no weightage when in the eye of law, the same carries heavy weight and gives a fatal blow to the case of the plaintiff. 2 as their son and that being very important piece of evidence, has been given no weightage when in the eye of law, the same carries heavy weight and gives a fatal blow to the case of the plaintiff. Placing the evidence of the witnesses examined on behalf of the parties, he also submits that there being no material on record to discredit the testimony of D.W.1 who is none other than the defendant No. 1, the widow of Dhruba, the same gives the fatal stroke upon the case of the plaintiff. So when D.W. 1 had deposed on oath that the plaintiff is not her daughter and the defendant no. 2 to be her son which has received further corroboration from the evidence of P.W. 3, 4 and 5 who are none other than the sister, father and brother of the plaintiff respectively, the finding of the trial Court that the plaintiff is the daughter of Dhruba is wholly unjustified and can’t be allowed to stand. He also submits that the trial Court has invented a third case for the plaintiff that even though she is not the natural born daughter of the Dhruba, she has been accepted and recognized as such stretching over a long period of time and in that view of the matter has held the plaintiff to be the daughter of Dhruba and defendant no. 1 which is unsustainable. It is further submitted that Ext. 1 ought not to have been taken as the conclusive proof of the plaintiff’s status as the daughter of Dhruba. He submits that the conclusion arrived at by the trial Court are quite in conflict with one another and also in conflict with the ultimate finding. He next submits that the documentary evidence such as Exts. 3,4, B & C also support the case of the defendant No. 1 and 2 that they are the two successors to have inherited the property of Dhurba and none-else have any right over the same. He thus submits that the finding of the trial Court on issue nos. 3 and 4 are liable to be set aside and consequentially the plaintiff’s suit has to be dismissed. 10. Learned counsel for the respondent No. 1 although submits that the discussion of evidence, their analysis and examination as has been made by the trial Court to finally record the finding on issue nos. 3 and 4 are liable to be set aside and consequentially the plaintiff’s suit has to be dismissed. 10. Learned counsel for the respondent No. 1 although submits that the discussion of evidence, their analysis and examination as has been made by the trial Court to finally record the finding on issue nos. 3 and 4 appear to have not been made properly yet no fault can be found with the ultimate answer if the evidence on record is critically examined in the touchstone of the pleadings and the settled principles of law. Placing the evidence on record, he contends that upon their proper analysis, the finding has to be that the plaintiff is the daughter of Dhurba Charan Swain; defendant No. 2 is not his son and as such has no right over the property of Dhurba. He, therefore, urges for affirmation of the finding recorded by the trial Court on issue nos. 3 and 4 and confirmation of the judgment and decree under challenge in this appeal. The fate of this appeal rests on the answer to issue No. 3 and 4. So, now in view of the rival submissions, this Court is called upon to analyze the evidence let in by the parties, so as to arrive at the conclusion on that score which would go to judge the sustainability of the findings of the trial Court impacting the ultimate result of the lis which would be dependant upon the same. The above exercise here in this appeal has to be rigorous and independently made more so for the reason that the discussion of evidence and their examination so as to arrive at a conclusion as has been done by the trial Court are of no help and rather gives rise to the confusion in every respect. 11. Before taking up the exercise as above, this Court at this stage, feels need to place some portions of the judgment under challenge for the purpose of appreciation as to how the findings impugned herein have been arrived at. 11. Before taking up the exercise as above, this Court at this stage, feels need to place some portions of the judgment under challenge for the purpose of appreciation as to how the findings impugned herein have been arrived at. Those are as follows:- “xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx It is the emphatic version of P.W. 1 that though Plaintiff is the natural born daughter of Uttam Swain, but she has been adopted to the family of deceased Dhruba and she has been addressed or considered as a daughter of Dhruba since the day of adoption by the general public, which purely satisfy the essential ingredients to constitute Section 50 of the Indian Evidence Act. This aspect seems to have not been challenged or severally assailed by the plaintiff, nor the veracity of P.W.1 has been put in by shadow of doubt. The only trump card lies on the hand of the plaintiff is the School Leaving Certificate marked Ext. 1, which shows the plaintiff to be the daughter of Dhruba Charan Swain. Corroborative place of evidence that could not counteract the preliminary evidence bringing forth from the evidence of above witnesses. Except the plaintiff no other witness has been brought to the Court to unfold the fact regarding the status as a daughter from the very beginning of her birth, till she got married in the family of Dhruba Swain. If somebody claims to be the natural born son or daughter, onus lies on him to prove through cogent evidence regarding each stages passed through by him in the family claims to be his own. If her family members including father, sister and brother denies her status as a daughter in the family of Dhruba Swain, duty encumbered on her to prove through otherwise witnesses who have had witnesses her birth, her observance of birth ceremony as well as marriage ceremony; in the family of Dhruba Swain. Nothing has been indicated specifically that deceased Dhruba Charan Swain got her marriage with Gajendra showing her to be his own daughter. It is specifically evidenced through some witnesses that nobody any occasion of witnessing marriage ceremony in as much as it was performed as Tola Kania. Nothing has been indicated specifically that deceased Dhruba Charan Swain got her marriage with Gajendra showing her to be his own daughter. It is specifically evidenced through some witnesses that nobody any occasion of witnessing marriage ceremony in as much as it was performed as Tola Kania. In absence of any positive evidence, it can be cumulatively deduced that the plaintiff is not the natural born daughter of Dhruba Charan Swain, but the daughter of Uttam Swain, the brother of Dhruba Charan Swain. The crux of the matter as to under which circumstances the plaintiff has been figured as a daughter in the family of Dhruba Charan Swain. Though defendant No. 1 denies the plaintiff to be her daughter, but never denied her to be the daughter of Dhruba Charan Swain in any specific from. Nothing has been brought forth or elicited from the mouth of D.W. 1 that her husband on any occasion has never adopted or treated plaintiff as his daughter. “xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx The defendants…. to bring him to the Court, necessitated the Court to expunge his evidence. Had he been continued as a witness in the Court, the real truth could have been devilled regarding the parentage of the plaintiff, her educational career and otherwise ancillary related thereto. No explanation is forthcoming to reasons assigned for his non-examination who is considered as a material witness. His withholding as a witness creates shadow of doubt as regards the propriety led by the defendants specifically in the matter of the plaintiff. His examination would have led the Court to testify the propriety genuineness of the document marked as Ext. 1. In this connection, the evidence of D.W. 3 is more relevant and interesting to find out the real truth. In her evidence under para-5, it is specifically evidenced that though his father Uttam Swain got her admitted in the School, but the father of Nirmala got herself admitted in the school. This evidence is a centre point to determine the real situation that crops up to ascertain the real thing. If somebody was engaged as guardian for admitting the plaintiff in the School other than Uttam Swain, the evidence produced by the plaintiff marked Ext. 1, can be attached with much significance in light of the evidence adduced by P.W. 1. This evidence is a centre point to determine the real situation that crops up to ascertain the real thing. If somebody was engaged as guardian for admitting the plaintiff in the School other than Uttam Swain, the evidence produced by the plaintiff marked Ext. 1, can be attached with much significance in light of the evidence adduced by P.W. 1. This situation gives ;rise to a presumption that though Nirmala is not natural born daughter of deceased Dhruba Charan Swain, but she has been taken as a daughter of the family of deceased Dhruba Charan Swain either at the instance of Dhruba Charan Swain which might not have been brought to the notice of D.W. 1. “xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx The fact that the plaintiff was addressed as a daughter in the public as well as official capacity as very much conclusive. She may not be legally adopted in due observance of the produce, but she being regularly treated as a daughter in the family of Dhruba Charan Swain satisfies the provision constitute in Section 50 of the Indian Evidence Act. A bare reading to the above portions of the judgment clearly go to show that the trial Court has not found the plaintiff to be the natural born daughter of Dhruba Charan Swain or that she is the adopted daughter of Dhruba and defendant No. 1 by recording a clear finding that the evidence let in by the parties on being duly appreciated justify any of the above. It has not conclusively held that this plaintiff has been duly adopted by Dhurba as his daughter and that to, in the absence of any such evidence proving the requirements to the satisfaction of the Court through clear, cogent and acceptable evidence and the trial Court has held the plaintiff’s status as the daughter of Dhruba as it has found from the evidence that she has been regularly treated as a daughter in the family of Dhruba. 12. The plaintiff’s case is that, she is the daughter of Dhruba which ordinarily means the natural born daughter and in the absence of any further pleading, it can’t be stretched to the extent to say that her claim is that she is the adopted daughter. 12. The plaintiff’s case is that, she is the daughter of Dhruba which ordinarily means the natural born daughter and in the absence of any further pleading, it can’t be stretched to the extent to say that her claim is that she is the adopted daughter. If one refers to the plaint, there is no whisper that she being not the natural born daughter of Dhruba, was subsequently so admitted by Dhurba and his wife the defendant No. 1. It is needless to say that the plaintiff in order to get the relief in the suit as prayed for has to be found to be the daughter of Dhruba so as to be entitled to a share in the property left by Dhruba. The defendant No. 1 and 2 having denied the plaintiff’s status as the adopted daughter, the plaintiff has taken no such stand in the plaint by even making any such amendment in specifically explaining herself either to be natural born daughter or adopted daughter of Dhruba and defendant No. 1. Undoubtedly, the burden of proof lies upon the plaintiff to establish the said fact that she is the daughter of Dhruba. This is the position mainly in view of the fact that the widow of Dhruba i.e. defendant No. 1 has pleaded in denial plaintiff’s status as their daughter. In this suit, the plaintiff has to stand on her own and she cannot take advantage of the weakness of the case of the defence. 13. The plaintiff in the suit has examined in total six witnesses including herself, examined as P.W. 6. P.W. 1, Tulasi Bisoi, who has been examined as the first witness by the plaintiff, has stated on oath that the plaintiff is the natural daughter of Uttam Swain and she had been adopted as a daughter by Dhruba Swain. It is also her evidence that Uttam is the brother of Dhruba and he had given the plaintiff in marriage with Gajendra Khuntia. It is her evidence that the defendant No. 2 is not the adopted son of Dhruba. When she states to have seen the real adoption ceremony of the plaintiff she is denying to be having any relationship with the parties or even in frequent visiting terms to their houses. Her evidence is on the score that the plaintiff was addressing Dhruba as father and his wife as mother. When she states to have seen the real adoption ceremony of the plaintiff she is denying to be having any relationship with the parties or even in frequent visiting terms to their houses. Her evidence is on the score that the plaintiff was addressing Dhruba as father and his wife as mother. This witness however has not stated to be in frequent visiting terms to the house of Dhruba for any such reason having some special reason so as to derive the special knowledge as regards the inter se conduct of the members that family and their inter se behavior and dealings. Her evidence is that the adoption had taken place when the plaintiff was 16/17 years of age whereas it has been further stated that the plaintiff married at the age of 17 years and after three months of marriage, she again came back to the house of Dhruba. She, however, has not stated the approximate year of adoption and nor as to how many years prior to her deposition, the adoption had taken place as also what were the ceremonies performed therein and any such further details to be within her knowledge and memory. She has expressed her ignorance so regards those important facts as to the so called adoption. P.W.2 who is the son of the sister of plaintiff’s father has stated the plaintiff to be the daughter of Dhruba. She has however stated that Dhruba and defendant No. 1 were blessed with a daughter i.e. the plaintiff and she is not the daughter of Uttam. So when P.W. 1 describes the plaintiff to be the adopted daughter of Dhruba the evidence of P.W. 2 is to the effect that she is the natural born daughter of Dhruba. P.W. 3 is a witness who has also come forward to the state that Nirmala is the only daughter of Dhruba and Sulochana, the defendant No. 1. The husband of the plaintiff has been examined as P.W. 4, who has stated that the plaintiff is the natural born daughter of Dhruba and Sulochana, the defendant No. 1. The plaintiff as P.W. 6 has deposed that defendant No. 1 is her mother and Dhruba is her father. This being the oral evidence from the side of the plaintiff, the evidence of D.W. 1 is very important as she is the defendant No. 1, widow of Dhruba. The plaintiff as P.W. 6 has deposed that defendant No. 1 is her mother and Dhruba is her father. This being the oral evidence from the side of the plaintiff, the evidence of D.W. 1 is very important as she is the defendant No. 1, widow of Dhruba. She has described the plaintiff to be the daughter of Uttam Swain. She has assertively stated that the defendant No. 2 is their son. Importantly, she has admitted to have sold the property inherited by her to other defendants who are parties to this suit as the purchasers. It appears that her evidence has not been shaken nor any such material has been brought out from her lips to raise doubt on her testimony on that material aspect of the case. Again another important witness is D.W. 2 who is the sister of Sulochana, the defendant no.1. It is her evidence that Dhruba has one son who is the defendant no.2 and he had no daughter. Another sister of Nirmala is D.W. 3 who has also stated in the same vain. A co-villager has been examined as D.W. 6. His evidence is to the effect that Dhruba and Sulochana have one son who is defendant No. 2. It may be stated at this stage that Uttam, the brother of Dhruba though was alive; his evidence is not placed for being read having been ultimately expunged. The documentary evidence from the side of the plaintiff is the transfer certificate from the school which has been admitted in evidence and marked as Ext. 1 which finds description of the plaintiff as the daughter of Dhruba. As against this, another school transfer certificate under Ext. B however shows the plaintiff to have been described as the daughter of Uttam therein. From the side of the defendants, another document has been proved; one transfer certificate of the defendant No. 2; showing Dhruba as his father and Voter Identity Card revealing the same state. The evidence as above discussed, in my considered view do not lead me to conclude that the plaintiff has discharged the burden of proof by establishing her case that she is the daughter of Dhruba and defendant No. 1. The finding of the trial Court that she has been accepted and acknowledged as such by all is also not acceptable on the face of the evidence as above discussed. The finding of the trial Court that she has been accepted and acknowledged as such by all is also not acceptable on the face of the evidence as above discussed. No such evidence has been let in to show the series of long standing conduct between the parties as regards the relationship of parents and daughter between Dhruba and defendant No. 1 on one hand and the plaintiff on the other, for drawal of strong inference from the same as regards the approach of Dhruba and defendants no. 1 towards plaintiff and vice versa as to what common relations and the society were showing in response in the matter and the recognition of such status of the plaintiff and her relationship with Dhruba and defendant No. 1. No witness has come to depose that they had the occasion to watch the conduct of Dhruba and defendant No. 1 and the plaintiff as well as the defendant No. 2 from close quarters in view of their any such special relationship with Dhruba and defendant No. 1 favouring a case of treatment by Dhruba and defendant No. 1 towards the plaintiff. No evidence in the light of the provision enshrined in Section 50 of the Evidence Act has been tendered by the plaintiff. Moreover, as against the claim of the plaintiff to be the natural born daughter of Dhruba and the evidence to whatever extent has been laid by the plaintiff are also contradictory. It rather clearly runs against the judicial conscience that a mother (defendant No. 1) carrying a child in her womb for the period till birth would come to depose against the said child denying the relationship as such with her and that too in a Hindu family coming from such general background. In view of the evidence on record the finding of the trial Court that the plaintiff is the daughter of Dhruba and defendant No. 1, is not found to have been so recorded on proper appreciation of evidence in the back drop of pleading as also keeping in view the settled position of law holding the field which is thus hereby set aside. The finding that this Court herein records, is that the plaintiff has failed to prove that she is the daughter of Dhruba and defendant no. 1 so as to maintain the suit for partition as laid and for the reliefs claimed. The finding that this Court herein records, is that the plaintiff has failed to prove that she is the daughter of Dhruba and defendant no. 1 so as to maintain the suit for partition as laid and for the reliefs claimed. The trial Court thus has found to have erred both on fact and law in passing the preliminary decree for partition in the suit filed by the plaintiff. 14. For the aforesaid discussion and reasons, the appeal stands allowed and the plaintiff’s suit stands dismissed. The parties are to bear their respective cost of litigation throughout. Ordered accordingly.