JUDGMENT :

ANJAY KUMAR DWIVEDI, J.

1. Heard Mr. Rajiva Sharma, learned senior counsel assisted by Mr. Ritesh Kumar, learned counsel for the appellants and Mr. Gaurav Abhishek, learned counsel for the respondents.

2. This second appeal has been filed being aggrieved and dissatisfied with judgment dated 28.05.2002 passed in Title Appeal No. 04 of 1999 by the learned District Judge, Dumka allowing the appeal and setting aside the judgment dated 31.03.1999 passed in Title Suit No. 28/1995 by the learned Subordinate Judge-I, Dumka.

3. The appellants/plaintiffs have instituted suit for declaration that the defendant no. 1 is not the adopted son of Ramni Tatwain and that the registered deed of adoption No. 194/1989 is void abinitio, in operative and fit to be cancelled. Apart from that relief for cost has been sought. The said suit was numbered as Title Suit No. 28 of 1995 which was decided by judgment dated 31.03.1999 and decree signed on 13.04.1999 whereby the suit was decreed in favour of the appellants/plaintiffs. Aggrieved with that the respondents/defendants preferred Title Appeal No. 04 of 1999 which was decided on 28.05.2002 whereby the learned appellate court allowed the title appeal with costs and reversed the judgment dated 31.03.1999/decree signed on 13.04.1999 by the learned trial court. Aggrieved with that the appellants/plaintiffs have filed the present second appeal.

4. The case of the plaintiffs/appellants is that Debi Tatwa had two sons Sahru Mehtar and Kishan Mehtar. Sahru had five sons, namely, Bishni Bhim, Surju, Kailu and Bhupati. Plaintiff no. 2 Karelee is the wife of Bhisu Mahto who is dead now. Bhim Bhupati and Surju died issueless. Kailu had two daughter Pateli Debi and Ramnee Debi. Plaintiff no. 1 is son of Patali. Ramni died issueless. According to plaintiff, Kishan Mehtar died before Settlement leaving his widow Rebati who has been recorded in respect of Kishan Mehtar's property appertaining to Jamabandi No. 31.Name of Sahru Mahtar was recorded with respect to Jamabandi no. 34. After the death of Rebati, Saharu, being the surviving brother of Kishan, inherited this lands of jamabandi no. 31. Further case is that Ramni died issueless on 6.8.95. Though last rites and shradh of Ramnee was performed by plaintiff no. 1, yet, on the said date, (6-8-95) these defendants wanted to cremate the dead body of Ramnee on the plea of adoption and produced a deed of adoption bearing no. 194/89 alleged to have been executed by Late Ramnee. The plaintiffs have questioned the factum of adoption and denied the validity of deed. They alleged that defendant no. 2 (Basuki Mandal ) is man of dubious character, sophisticated and influential Mahajan of the village who had greedy eye over sophisticated the property of Ramni and with that intent he frequently visited the house of Ramnee and gained confidence and projected himself and her well wishers and assured to help and protect her interest as Ramnee had some dispute with her sister’s son in the share and enjoyment of produce out of the property inherited from her father Late Kailu Tatwa. It is apprehended that defendant no. 2 practised undue influence and fraud on Ramnee with a view to get L.T.I. purporting to execute adoption by alleging that she had adopted defen-dant no. 1 as son on 7-5-82. As a matter of fact, no ceremony of giving and taking took place. The defendants are by castes Gwala and according to local custom, Ramnee could not even contemplated to adopt a child of different caste. The story of adoption is false and fabricated. It is then alleged that defendant no. 1 was aged about 17 years on 7-5-82 and he has not been transferred from the family of natural parents to the family of adoptive mother. In the aforesaid circumstances, the present suit was filed for declaration hereinabove specified.

5. The case of respondents/defendants is that the claim by filing one set of W.S. they denied to have practiced fraud upon Ramnee Tatwain in the manner suggested by the plaintiff