The validity of adoption requires clear, cogent evidence of factum, including actual giving and taking; mere documentation is insufficient without proof of the legal requirements.

JUDGMENT :

D.Dash, J.

1. The Appellant, in this Appeal under Section 100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’), has assailed the judgment and decree 28.07.2000 and 09.08.2000 respectively passed by the learned Additional District Judge, Jeypore in T.A. No.3 of 1995.

By the same, the Appeal filed by the original Respondent No.1 under section 96 of the Code in challenging the judgment and decree dated 06.09.1993 and 14.09.1993 respectively passed by the learned Subordinate Judge, Jeypore in T.S No.54 of 1990, has been allowed. The Trial Court, having dismissed the suit filed by the original Respondent No.1, as the Plaintiff and thereby non-suiting him; the First Appellate Court has decreed the suit declaring the right, title, interest of the original Respondent No.1 (Plaintiff) over the suit land and directing the present Appellant and Respondent No.1, the Defendant Nos.1 & 2 respectively before the Trial Court to restore possession of the suit land to the original Respondent No.1 (Plaintiff).

Be it stated here that the original Respondent No.1 (Plaintiff), having died during pendency of the suit, his legal representatives have come on record on being substituted and they are the Respondent Nos.1(a) to 1(b).

2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Trial Court.

3. Plaintiff’s Case:-

The parties are Bhotra by caste and as such, they are the members of the Scheduled Tribe Community. They being Hindus the traditional Hindu Law applies to them and they are governed by Mitaskhara School of Hindu Law. The provisions of Hindu Succession Act and other such enactments are not applicable to them.

4. It is stated that the land in suit exclusively belonged to one Sanadhara Banua @ Bhotra. Said Sanadhara died eleven to twelve years before the institution of the suit in the year 1990. He had only two daughters, namely, Defendant Nos.1 & 2. The Defendant No.3 is the son of Defendant No.2. The Plaintiff has provided the genealogy showing the relationship amongst the parties and that is given hereunder:-

It is stated that during the life time of Parau, Sanu, Padlama and Brunda, they had partitioned their properties in metes and bounds and possessed their respective shares separately. Since Sanadhara had no male issue and his daughters had grown up, he decided to adopt the Plaintiff. Such a decision of adoption was taken in the year 1949. The Plaintiff then was a boy of 7 to 8 years old. The Plaintiff was adopted by Sanadhara and lived in his house with all the relationship with Sanadhar as father and son. It is further stated that the adoption was with the consent of the adoptive mother and natural parents. The Plaintiff, in course of time, got married and it was performed by that Sanadhar. On 14.04.1949, Sanadhar had executed a deed of acknowledgement of adoption of the Plaintiff. Much prior to the execution of the deed of adoption, late Sanadhara had gifted portions of his landed properties to his daughters, which had been recorded in their name in the Current Holding Nos.66 & 74. Daughters have been in Cultivating possession of those lands gifted to them. The Defendants have no right, title, interest and possession of the suit land. The Plaintiff, since the attainment of age of discretion, was cultivating the suit land to the exclusion of the Defendants. However, being instigated by some pers