JUDGMENT :

(Goutam Bhaduri, J.)

1. This appeal is against the judgment and decree dated 30/03/2022 passed by the Judge, Family Court, Balodabazar, in civil suit No.89/2021 whereby the declaratory suit filed by the appellant through next friend was dismissed.

2. The facts of this case, in brief, are that the minor Raunak Yadu, aged about 15 years, represented through his next friend Gulab Yadu, filed a suit for declaration that he was born on 02/12/2006 out of relation between Homeshwar Yadu and Sunita Yadu, who was married. According to the plaintiff, the father of Raunak Yadu namely; Late Homeshwar Yadu was working in Police department. He died in harness on 27/08/2020. The plaintiff claimed that he is the legal heir and in the service book too name of Sunita Yadu, as wife and in her absence name of Raunak Yadu the son (plaintiff) was recorded. The plaintiff sought for compassionate appointment in the department after death of his father and he was directed by the department to produce the necessary certificate of proof so that his appointment can be materialized. In the backdrop of such cause of action, civil suit was filed for declaration as it necessary papers were required by the department. The plaintiff claimed that he was born out of the wedlock of Sunita and Homeshwar and declaration to this effect be issued.

3. In such declaratory suit, public at large and Sunita Verma were arrayed as defendants. Plaintiff further stated that after death of his father Homeshwar Yadu he was in the custody of his uncle namely; Gulab Yadu (bade pitaji), who is elder brother of late Homeshwar Yadu. During course of trial, Gulab Yadu was examined and Sunita Verma, the mother who was defendant No. 2 was also examined.

4. The learned trial Court dismissed the suit on the ground that no cause of action has accrued in favour of the plaintiff as to seeking compassionate appointment in the Police department, the plaintiff was directed to obtain succession certificate. The Court observed that since the issue of succession certificate is not within the domain of the Family Court and further held that there is no evidence to the fact that minor Raunak Yadu was born out of relation between Homeshwar Yadu and Sunita Verma and since the relation has been accepted by the plaintiff witness Gulab Yadu, no relief can be granted to this effect as no dispute exists.

5. Learned counsel for the appellant would submit that the plaintiff has examined the witness to show that Raunak Yadu was born out of the wedlock of Homeshwar Yadu (since deceased) and Sunita Verma. It is stated the mother also testified the fact that child was born out of her marriage with Homeshwar Yadu, therefore, those evidence being unrebutted, there was no occasion before the learned trial Court to disregard the same. He would further submit that the birth certificate was also produced as Ex. P/2, which shows the name of the mother and father and in absence of rebuttal of the same, it would be admissible in evidence. Accordingly, the declaratory decree should have been passed in favour of the plaintiff.

6. Learned counsel appearing for the respondent No.2/Sunita Verma would submit that the statement would show that the child was born out of their relation and those facts were not rebutted. However, she would submit that there has been a separation in between the parties i.e. Homeshwar Yadu and Sunita Verma and the child was in custody of the brother of the husband, therefore, a separate proceeding is pending in a custody battle before the trial Court.

7. We have heard learned counsel for the parties, perused the evidence and the record.

8. The minor came through his next friend claiming a declaratory relief that he be declared as legitimate son of Homeshwar Yadu and Sunita Verma. Sunita Verma was examined being the mother. The brother of Homeshwar Yadu Gulab Yadu stated that on 27/08/2020 Homeshwar Yadu died and Raunak Yadu is his nephew. He affirms the fact that minor Raunak Yadu is son