The central legal point established in the judgment is the necessity for evidence of adoption to be free from suspicion of fraud, the burden of proof to dispel suspicion, and the requirement for an actual giving and taking ceremony.

JUDGMENT :

A.K. Rath, J.

This appeal is by the defendant nos. 1, 6 to 8 against the reversing judgment.

2. Plaintiff-respondent no.1 instituted the suit for partition. Case of the plaintiff was that Narendra Sekhar Deo was the common ancestor of the parties. He died leaving behind his three sons Chhatrapati, Sreepati and Balmakund. Chhatrapati died issueless. Sreepati died leaving behind his son Shibshankar-defendant no.1. Balmakund died leaving behind his son Jagannath-plaintiff. There was no partition between the parties by metes and bounds. After death of Chhatrapati, plaintiff and defendant no.1 inherited the suit land. Defendant no.1 made an attempt to forcibly occupy the entire suit land taking a plea that he is the adopted son of Chhatrapati. Specific case of the plaintiff was that defendant no.1 is not the adopted son of Chhatrapati. There was no giving and taking ceremony. The defendant no.1 has sold some portion of the land to defendant no.12. With this factual scenario, he instituted the suit seeking the reliefs mentioned supra.

3. Defendant no.1 filed a written statement denying the assertions made in the plaint. Case of the defendant no.1 was that Chhatrapati had no issue. Chhatrapati adopted him. Chhatrapati executed a deed of adoption on 13.9.1978. He is in possession of the suit land as the adoptive son of Chhatrapati. Other defendants filed a written statement pleading, inter alia, that defendant no.1 is the adopted son of Chhatrapati.

4. Stemming on the pleadings of the parties, learned trial court struck six issues. Parties led evidence. Learned trial court dismissed the suit holding, inter alia, that the defendant no.1 is the adopted son of Chhatrapati. Chhatrapati was separated from other two brothers. The suit land fell to his share. The same was recorded exclusively in his name. Plaintiff has no manner of right, title and interest over the same. Being aggrieved, plaintiff filed T.A. No.9 of 1995 before the learned District Judge, Sundargarh. The appellate court came to hold that defendant no.1 is not the adopted son of Chhatrapati. Held so, it allowed the appeal.

5. The second appeal was admitted on the substantial questions of law enumerated in Ground Nos.M(a), (c), (d) and (e). The same are –

“(a) The suit was not maintainable in view of the fact that there was no prayer in the suit to declare that the defendant no.1 was not the adopted child of late Chhatrapati Sekhar Deo.

(c) The suit is bad for non-joinder of necessary parties. All co-sharers (by possible inheritance) had not been impleaded in the suit.

(d) The deed of adoption Ext.A/1 is legal and acceptable. So allowing the appeal on that ground is bad.

(e) Ext.F cannot regate the adoption of defendant no.1 by Chhatrapati.”

6. Heard learned counsel for the parties.

7. Learned counsel for the appellants submits that defendant no.1 is the adopted son of Chhatrapati. When he was five years old, Chhatrapati adopted him. Chhatrapati had executed a deed acknowledging adoption vide Ext.A/1. There was giving and taking ceremony in presence of relatives and friends. Learned appellate court, on a vivid analysis of the evidence on record and pleadings, held that defendant no.1 is not the adopted son of Chhatrapati. But then, learned appellate court up set the same on untenable and unsupportable grounds. He further submits that after adoption, defendant no.1 resided in the house of Chhatrapati. He was looking after him during old age. Defendant no.1 also conducted obsequies of his adoptive father.

8. Per contra, learned counsel for the respondent no.1 submits that the defendant no.1 is not the adopted son of Chhatrapati. There is no pleading or proof with regard to giving and taking ceremony. Learned appellate court, on an analysis of the evidence on record, negatived the plea of adoption. There is no perversity or illegality in the said finding.

9. The apex court in the case of Kishori Lal v. Mt. Chaltibai, AIR 1959 SC 504, held that as an adoption results in changing the