Birendra Kumar, J.

1. Heard the parties.

2. By the impugned order dated 30.11.2010 passed in Succession Case No. 34 of 2005, the learned Fast Tract Court-1st , Bhagalpur has refused to grant succession certificate in favour of the appellant mainly for the reason that appellant failed to prove that he is adopted son of Late Ganesh Poddar for whose property succession certificate was sought for.

3. The case of the applicant before the learned court below was that applicant-Shobhakant Kumar @ Poddar was adopted son of Late Ganesh Poddar vide registered adoption deed dated 22.10.1975 vide Ext. 1. The adoption was made by Shobhagayabati Devi, wife of Ganesh Poddar along with Ganesh Poddar. After death of Ganesh Poddar and his wife, the appellant claims to be a sole owner of his movable and immovable property.

4. Respondent No. 5 and 6 Pritam Kumar Deepak and Prahlad Poddar contested the claim of the appellant on the ground that appellant was never adopted by Late Ganesh Poddar or his wife who were issueless nor the appellant has disclosed the factum of adoption in his three earlier applications brought for grant of succession certificate in respect of the property of Late Ganesh Poddar which were dismissed for default. They further asserted that last rites were performed by nephew of Late Ganesh Poddar and not by the applicant.

5. The learned court below framed following five issues for consideration:-

(i) Whether the application as framed is maintainable?

(ii) Whether the opposite party no. 5 and 6 have locus standi to oppose the application?

(iii) Whether the applicant is duly and legally adopted son of the deceased father (Late Ganesh Poddar)?

(iv) Whether the application under reference is barred by law of limitation or otherwise?

(v) Whether the applicant is entitled to the succession certificate as asked for?

6. Learned court below considered and decided issue no. (iii) and (v) jointly and held that the appellant was not adopted son of Late Ganesh Poddar nor he is entitled for any relief.

7. The finding is based on the reason that the appellant had not stated in his earlier applications brought for issuance of succession certificate that he is adopted son of Late Ganesh Poddar. The learned court below further noticed that there is no evidence on the record to suggest as to on what date the adoption ceremony was performed. Who was the priest? Who were present at the time of adoption? Merely a certificate is no evidence of adoption.

8. Learned counsel for the appellant has challenged the finding of the learned court below as completely erroneous one arising out of misreading of evidence on the record and of the law. Learned counsel has drawn attention of the Court to the first case brought by the appellant for succession certificate which was registered as Succession Case No. 48 of 2000. The petition is marked as Ext. E which was dismissed for non-payment of court fee on 30.07.2003 vide order at Annexure-18. The appellant had stated in the petition that he is son of Late Ganesh Poddar. The second application was Succession Certificate Case No. 58 of 2001 marked as Ext. F which was dismissed for non-prosecution on 24.02.2003 vide order at Annexure-18A. In that application also, appellant stated that he is son of Late Ganesh Poddar. The third application was Succession Case No. 18 of 2003 at Ext. G which was dismissed for non-prosecution on 29.04.2004. In that application also, the appellant stated that he is son of Late Ganesh Poddar. Learned counsel submits that Section 12 of the Hindu Adoptions and Maintenance Act, 1956 says that an adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family. As such, there was no need to make statement that the appellant is adopted son o