A. Pasayat, J. - (1.)In a suit for partition, plea of adoption was the pivotal issue, and that plea having been not accepted by the courts below, defendant No. 1 has filed this appeal under Sec. 100, Cr. P.C. 1908 (in short, the Code).
(2.)Originally Bhramarbar Dutta and his son Subash Chandra Dutta had filed the suit. After the death of Bhramarbar, his widow Radhamani Dutta had been substituted. The plaintiffs filed the suit for partition of their half share of Schedule 'A' (Sarad), and Schedule B (homestead) properties. According to them, Uchhab was the common ancestor of Bhagabat, and Aintha. Bhagabat had two sons namely, Bhramarbar, the original plaintiff, and Pandari. Bhramarbar had two sons, namely, Pabitra and Subash. Panduri had a daughter namely Niasha (defendant No. 1). Plaintiffs case, in short, is that the suit properties were joint family properties, although they stood recorded in the name of Bhagabat and Aintha is the current settlement by amicable partition, the western half which relates to the suit properties fall to the share of Bhagbhat, and the eastern half to the share of Adhikari. Schedule A' properties were recorded in the name of Bhagabat. He was the exclusive owner in possession of the said properties. After the death of Bhagabat, the properties were inherited by Bhramarbar and Pandari, each having eight annas share and defendant No. 1 has eight annas share in the suit properties. Since Niasha (defendant No. 1) did not agree to the partition, the suit was filed. Niasha filed written statement indicating that the suit properties belonged to Bhagabat Dutta, which were inherited by Pandari since Bhramarbar was adopted by Aintha Dutta, and Bhramarbar was given the name Adhikari. Uchhab, the common ancestor, had two sons, namely, Aintha and Bhagabat, and there was partition between them, and accordingly names of Bhagabat and Aintha were recorded in the current settlement. Pandari as the sole survivor of Bhagabat, and Adhikari as sole surviver of Aintha are possessing their respective properties. Adhikari left two sons namely Pabitra and Subash, and Pandari left the only daughter Niasha, The house which was shown in the voters list in the name of Baramarhar is possessed by his two sons, and the house which was recorded in the name of Pandari is possessed by Niasha (defendant No. 1). Pabitra is not the adopted son of Aintha who died long before the birth of Pabitra. After the death of Aintha his son Bhramarbar was paying the rent through Bhagabat to the landlord. The plaintiffs have no interest in the suit properties. Pandari executed and registered a gift deed dated 21-8-1970 in favour of defendant No. 1 with regard to Schedule A properties, and since then defendant No. 1 is in possession of the same. She has perfected her title over Schedule A properties by adverse possession, being in possession since 1970 on the strength of gift deed. On 21-8-1970 Pandari also sold Schedule B properties to his wife Aintha Dei, who was in possession of the same till her death in 1983, and after her death Niasha (defendant No. 1) as her only heir is in possession of the same. The undisbursed property of Pandari as detailed in Schedule 'C' of the written statement is claimed to be owned and possessed by Niasha (defendant No. 1). Pandari has also acquired title by adverse possession over the suit properties left by Bhagabat by ousting the plaintiffs from the same. The learned Subordinate Judge found that Bhramarbar was not the adopted son of Aintha, and he is not known in the alias name of Adhikari. Reliance was placed on Exts. 5 and 7 series and sale deeds along with oral evidence. It was held that possession of Pandari was not adverse and transfer by Pandari to defendant No. 1, and his wife was invalid. Accordingly, the plaintiffs suit was decreed, in appeal it was concluded that Bhramarbar was not the adopted son of Aintha and was not called as Adhikari. Other issues were not challenged in the first appellate court.
(3.)In support of the appeal, it was submitted by Mr. Deepak Misra, learned counsel for appellant that evidence on record has not been analysed in its proper perspective. According to him, the parcha and rent receipts which have been received in evidence, clearly show that the conclusion of the courts below are erroneous. The stand of respondents on the other hand is that on evaluation of intrinsic value of the documents, findings of fact have been recorded that the claim of adoption is not tenable. It is further submitted that considering limited scope for interference, this appeal under Sec. 100 of the Code is to be dismissed.