IN THE HIGH COURT OF JUDICATURE AT PATNA S.A. No.32 of 2006 1 (a). Vinod Kumar S/o Late Parmeshwar Sah, 2 (b). Manju Kumari D/o Late Parmeshwar Sah Resident of Mohalla-Imambari, Town and District-Darbhanga. …..Defendants-Respondents-Appellants. V e r s u s Saraswati Devi wife of Sri Harinandan Sah Resident of Mohalla-Imambari, Town and District – Darbhanga, present residing at village-Loharpatti, P.S. Jaleshwar, District Motihari, Nepal. ……Plaintiff-Appellant-Respondent. For the appellants : M/s Yugal Kishore, Sr.Advocate and Dineshwar Tiwary, Advocate. For the respondent : Mr. Rana Bhupendra Narayan Singh and Mrs. Babita Kumari, Advocates. ----------- 10/ 09.02.2009 Heard learned counsel for the appellants and learned counsel for the respondent. 2. This second appeal has been filed by the sole defendant- respondent-appellant challenging the judgment and decree of the learned court of appeal below. 3. The matter arises out of Title Suit No. 241 of 1986, which was filed by the sole plaintiff-appellant-respondent for ejectment of the defendant from the suit premises on the ground that the defendant was a licensee and was refusing to vacate the suit premises on the request of the plaintiff. 4. The said suit was dismissed on contest with cost by the learned Subordinate Judge-III, Darbhanga vide his judgment and decree dated 21.03.1998. The said judgment and decree of the trial court was challenged by the plaintiff in Title Appeal No. 21 of 1998, 2 which was allowed by the learned Additional District Judge-cum- Fast Track Court No.I, Darbhanga on contest with cost setting aside the judgment and decree of the trial court and decreeing the suit and claim of the plaintiff vide his judgment and decree dated 15.12.2005. The said judgment and decree of the learned court of appeal below is under challenge in the instant second appeal. 5. Admittedly, the suit premises belonged to Sri Jadu Sah the father of the plaintiff, who left behind only two daughters and the claim of the plaintiff was that there was a partition between the plaintiff, her sister and the nephew of Jadu Sah, namely Srichand Sah, who was the father of the defendant and in that partition the suit property fell into the share of the plaintiff by a registered Taksimnama dated 29.05.1965 (Ext.2). It was also claimed by the plaintiff that she was residing in the suit premises but she had to shift temporarily to Loharpatti to live with her husband and hence on her request, the defendant, who was her close relative, came in possession of the suit premises on 15.12.1980 as licensee of the plaintiff, but when the plaintiff returned and wanted the possession back the defendant refused. 6. On the other hand, the defendant’s claim that since Jadu Sah had no son, he adopted the defendant as his Kartaputra vide Kartaputranama dated 14.01.1951 (Ext. E) and hence being a Kartaputra he had a share in the property and was in possession as the owner of the property and not as a licensee of the plaintiff. So far the aforesaid Kartaputranama is concerned, it is an unregistered 3 document and was the backbone of the claim of the defendant but he did not file the same either at the time of filing of the written statement or at the time of settlement of the issues or even before starting his evidence and it was produced in the court for the first time when the plaintiff’s evidence was at the verge of conclusion in the year 1993, whereafter the plaintiff was re-examined on recall and she categorically stated that the said Kartaputranama was not executed by her father Jadu Sah and she emphatically denied that he had ever signed the said document. However, in spite of the specific denial of the plaintiff, who was none else than the daughter of the alleged executant, the defendant did not care to substantiate his claim that the said document Ext. E was executed by Jadu Sah, although onus was squarely upon him to prove it but he made no effort either to get the signature on the said document examined by any handwriting expert or to prove it by any valid material. 7. This court in an earlier decision in case of Jagdeo Singh and others Vs. Shivadeni Singh and others, reported in A.I.R. 1965 Patna 351 has already held that onus rests upon a person who seeks to displace the natural succession of property by the Act of Adoption and this onus can be discharged by adducing either direct evidence of the fact of adoption or by the existence of circumstances which go to strengthen the probability of an adoption having taken place or by both. In the said circumstances there is no direct evidence of the fact of adoption except the aforesaid Ext. E about which discussion has been made above. So far the circumstances and conduct of the 4 persons concerned is concerned, the learned court of appeal below very carefully considered the evidence adduced on behalf of the parties and found that DW.20, who claimed to be the scribe of the deed, did not make any endorsement that it was read over and explained to the executant nor he signed the document as scribe. 8. Furthermore the mode in which the story of creation of document was set up appears to be absolutely frivolous, in view of the fact that according to DW.19, Kartaputranama was prepared on the basis of draft but according to DW.20 it was directly prepared without the help of any draft. Moreover, the learned lower appellate court after elaborately discussing the evidence of the defendant came to the conclusion that the defendant after the alleged adoption and death of the father of the plaintiff did not ever care to get his name mutated in Anchal and in Municipal Serista, whereas on the other hand in both the records the name of the two daughters of Jadu Sah, including the plaintiff were mutated and they were paying rent to the extent of their respective shares. 9. Furthermore, there is a registered deed of partition between the father of the defendant as well as the plaintiff and her sister with respect to the family properties including the suit property, but neither the defendant is mentioned therein, nor did he care to take any step in that regard. Hence, there was absolute absence of any valid material to show that defendant had ever acted as an heir or successor of the property left by Jadu Sah, whereas the plaintiff had been able to prove by valid evidence that the defendant 5 was merely a licensee but was refusing to vacate the suit premises, although the plaintiff had withdrawn the license. In the said circumstances, the learned court of appeal below had rightly come to the conclusion that the defendant was not the Kartaputra of Jadu Sah, rather he was a mere licensee of the plaintiff. 10. In the aforesaid facts and circumstances, this court does not find any illegality in the impugned judgment and decree of the learned court of appeal below, nor does it find any substantial question of law involved in the instant second appeal, which is accordingly dismissed at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. harish/ ( S.N.Hussain, J.)