This appeal has been preferred by defendant - appellant.

2. The plaintiffs had filed Title Partition Suit No. 4 of 1999 claiming their 1/3rd share in the suit property.

3. The case of the plaintiffs was that Bhual Ram and Ram Naresh Ram were the own brothers. The plaintiff no.1Sudeshwar Prasad Pandit was the son of Ram Naresh Ram. When the said plaintiff no.1 was aged about one year, Ram Naresh Ram died leaving behind his elder brother - Bhual Ram. After the death of father - Ram Naresh Ram, the plaintiffs' mother became sick and her health deteriorated day by day due to sorrow and grief, after the demise of her husband.

4. When the plaintiff no.1 was aged about two years, Bhual Ram was issueless. The said Bhual Ram approached the widow of Ram Naresh Ram, namely, Indra Devi, natural mother of plaintiff no.1Sudeshwar Prasad Pandit and had expressed his desire to take the plaintiff no. 1 in adoption as his son. Indra Devi agreed to the said proposal. The said Bhual Ram, thereafter, adopted the plaintiff no.1 after observing and performing all the religious and customary rites of adoption including giving and taking ceremony. The same was followed by Puja and the feast in presence of the relatives and the family friends. Since thereafter the plaintiff no.1 was - treated as son of Bhual Ram. He was brought up under the care and protection of adoptive parents. After about six months, natural mother of plaintiff no. 1 expired. After about two years, the adoptive parents were blessed with a son. Two sons and three daughters were born subsequently. The plaintiff no. 1 - Sudeshwar Prasad Pandit was treated as eldest son of Bhual Ram. Bhual Ram purchased land measuring 10 kathas of plot no. 6164 (new) corresponding to plot no. 153 (old), Thana No. 1642 appertaining to khata no. 1 of village - Ulidih, .Mango Dimna Road andhad constructed a house consisting of 23 pucca rooms including time shop room. He also constructed a Well. 5 kathas of vacant land is still lying in the back side of the constructed house. The parties have also got some immovable property at their native place. Bhual Ram subsequently died leaving behind three sons and three daughters including plaintiff no.1. After the death of Bhual Ram, the defendant - appellant maliciously and forcibly tried to drive out the plaintiffs from the suit property. The dispute led to a proceeding under Section 144 Cr.P.C. and other criminal case. In view of the said dispute, the plaintiffs requested the defendant to partition the suit property. But his request was not heeded upon by the respondents. The plaintiffs, thereafter, filed the suit. The plaintiffs are entitled to get 1/3rd share in the suit property.

5. The defendant contested the suit and, inter alia, denied and disputed the plaintiffs' claim of adoption by Bhual Ram. It has been stated that plaintiff no. 1 is the son of late Ram Naresh Ram. He has no share in the property of late Bhual Ram. The claim of adoption is false and fabricated. Bhual Ram left behind his sons and daughters. The plaintiff no. 1Sudeshwar is not the legal heir or successor of Bhual Ram. During life time of Bhual Ram, the sons and daughters were separated. They have separate mess and residence. There is no unity of title and possession. The suit for partition is not maintainable and is liable to be dismissed.

6. The defendant nos. 2 & 4 filed separate written statement and supported the claim of plaintiff no. 1- Sudeshwar Prasad Pandit. They admitted that plaintiff no. 1 is the adopted son of their father late Bhual Ram. He was brought up by their father as his son. Plaintiff No.1 is one of the brothers of the defendants and all of them have been living jointly. The plaintiffs and the defendant have jointly inherited the suit property and each have got 1/6th share in the suit property.

7. On the basis of the said claims in pleadings, learned trial court framed several issues and one specific issue was framed as to whether plaintiff no. 1Sudeshwar Prasad Pa