The burden of proof lies on the party asserting the fact of adoption, and the evidence must be clear and convincing.

Judgement

G.K. MISRA, C.J. :- The following genealogy as appended to the plaint would show the relationship amongst the plaintiff, defendants 1 to 3 and defendants 4 to 8.

Dinabhandhu and Minei were brothers. Puni Bewa (D-3) is the widow of Hari. Defendant 1, plaintiff and defendant 2 are the sons of defendant 3. Defendants 4 to 8 belong to the branch of Minei. Admittedly the Branches of Dinabandhu and Minei are separate in status.

Plaintiff filed the suit for partition claiming one-sixth share in Schedule B properties consisting of 15.29 acres asserting that they are the joint properties of the two branches of Dinabandhu and Minei. He claimed one-third share in Schedule C properties measuring 3.38 acres alleging that they are the self-acquired properties of the plaintiff and defendants 1 to 3 acquired out of joint family funds and joint effort and exertion of the members irrespective of their being recorded in the names of different members of the family. Schedule D properties are movables in which the plaintiff claims one-third share. Thus in the prayer for partition, plaintiff did not state that his mother, defendant 3, is entitled to a share also.

2. Defendants 1 to 3 filed a joint written statement on the following averments.

Plaintiff was adopted by deceased Govind Chandra Sahu in 1932. He was living in the family of his adoptive father and had no connection with the family of defendants 1 to 3. There has been en amicable partition by metes, and bounds between the branches of Hari and Minei. The properties under lots 5 to 8 of Schedule C and those under lots 16 and 18 of Schedule B are the separate and self-acquired Stridhan property of Sita Dei, wife of defendant 1, who is not a party to the suit, and neither the plaintiff nor the defendants 1 to 3, have any right title or interest over the same. The properties covered under lots 1 to 3 of Sen. C are the self-acquired properties of defendants 1 and 2 which they purchased on 6-7-1958 out of their own separate earnings and not out of their joint family funds, and properties under lot No. 4 of Schedule C belong to Magu Sahu and others. Even if plaintiff's own allegation is accepted, plaintiff IB entitled to one-eighth share in Schedule B and one-fourth share in Schedule C properties.

3. The learned Subordinate Judge on an examination of the evidence on record held that the plaintiff was the adopted son of Govind Chandra Sahu and he was not in possession of any portion of the suit land since his childhood. He accordingly dismissed the plaintiff's suit.

4. In appeal our learned brother B.K. Ray, held that plaintiff was not the adopted son of Govind Chandra Sahu. He accordingly allowed the appeal and decreed the plaintiffs suit for partition granting one-sixth share in Schedule B and one-third share in Schedules C and D of the plaint. Defendants 1 to 3 are the appellants challenging this appellate decree.

5. Mr. Sinha, for the appellants, raised two contentions, (i) The finding of the learned Single Judge that plaintiff was not adopted by the late Govind Chandra Sahu is erroneous on facts and in law: and (ii) even assuming that the finding on adoption is correct the further finding giving one-sixth share in Schedule B and one third share in Schedules C and D to the plaintiff is not correct.

6. The second finding cannot be sustained on the very face of it, and Mr. Mohanty concedes the position. If partition is to be allowed, each of plaintiff and defendants 1 to 3 would be entitled to one-eighth share of Schedule B properties and one-fourth share in Schedules C and D properties, as in a partition amongst the sons, the mother is also entitled to a share equal to that of a son.

7. The main question for consideration in this appeal is whether plaintiff was adopted by Govind Chandra Sabu in 1932.

Before examining the question of adoption. It would be appropriate to clarify the scope of Jurisdiction and power in a Letters Patient Appeal against the judgement of a single Judge deciding a Firs