The burden of proof to establish adoption is on the plaintiffs.

JUDGMENT: The plaintiffs are appellants. The appeal is directed against the judgment of the learned Subordinate Judge. Dhenkanal, in a suit for partition of the properties described in Schedule A to D of the plaint. Relief of declaration of exclusive title in regard to a house standing on plot No. 2797 was also asked for. The plaintiffs also prayed for permanent injunction against the defendant No. 1.

2. The parties are relations and their relationship is as shown below.

The plaintiffs claimed that Gurubari had been adopted out of the family since his childhood and he was actually enjoying the properties of Dama Rana, the adoptive father. Thus Gurubari had no share in the family properties, and in the properties of Kapila the plaintiffs have become owners and are entitled to their respective shares on division. The defendant No. 1 demanded a share and created disturbance in the plaintiff's possession. Some of the properties were purchased jointly by Guranga and the defendant No. 1 and some others have been purchased by Gauranga. Gurubari and Dama together. That is why a partition became necessary and separate schedules have been given in the plaint.

3. The defendants 1 and 2 filed a joint written statement. The genealogy was admitted but the adoption of Gurubari by Dama was disputed. A previous amicable partition by metes and bounds was also pleaded. The defendant No. 3 who is the widow of Dama filed a separate written statement and denied the adoption of the defendant No. 1 by Dama.

4. The learned trial Judge came to find that the plaintiffs had failed to establish the plea of adoption. He next took up the question of previous partition and held that there was no partition as alleged by the defendants. In the writ ten statement certain properties had been shown to be joint family properties liable for partition. The trial court held that these properties as described in the schedule to the written statement were partible and included them in the hotchpot. Accordingly the preliminary decree that had been passed directed that the plaintiffs would be entitled to one-fourth share in the properties in schedules A to D and half share in the properties described in the schedule E as also the property appearing in the schedule of the written statement. He indicated the shares of the respective defendants in the various items of property as well. The plaintiffs are in appeal being aggrieved on two scores (i) negativing the claim of adoption and their claim to a higher share and (ii) the direction that the properties in the schedule to the written statement are partible.

5. Thus, the two questions which arise for determination in this appeal are in regard to the adoption of Gurubari by Dama and partibility of the properties in the schedule of the written statement.

6. The burden to establish the adoption is squarely on the plaintiffs and as has been laid down by their Lordships of the Supreme Court in the case of Kishori Lal v. Mt. Chaltibai. AIR 1959 SC 504 that burden is heavy. The written statement is significantly silent as to the exact date of adoption. In paragraph 2 of the plaint it has been stated:

"That the defendant No. 1 having been taken in adoption by Dama Rana from his childhood as stated in the previous paragraph has lost all his interest in the property left by Kapila Jena as he became a member of the adoptive father's family by adoption."

P. Ws. 1. 4 and 7 are said to be witnesses of giving and taking. P. W. 1 who was the Sarabarakar of the village has claimed that the adoption of the defendant No. 1 took place about 20 years prior to his giving evidence in Court. It takes us to 1945-46. The defendant No. 1 has been said to be about 12 or 13 years at the time of adoption. P. W. 4 claims the adoption to have taken place about the year 1943 or 1944. While P. W. 1 has made a significant statement:

"The adoption was held after the merger of Dhenkanal with the State of Orissa i. e. roughly about 2 or 3 years after the merger (meani