IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.481 of 2004 1.BINDESHWARI MISTRI 2.MUNNA MISTRI 3.CHUNNA MISTRI All S/O Late Uchit Lal Mistri 4.MEENA DEVI, Widow of Late Jagdish Prasad Sharma, D/O Late Jaideo Mistri, All R/O Vill. Masdi, Post and Police Station Sultanganj, District Bhagalpur. .............Appellants Versus 1.BALRAM MISTRI 2.HARJUG MISTRI 3.BRHAMDEO MISTRI 4.SATYADEO MISTRI 5.DAMODAR MISTRI All S/O Narayan Mistri, All R/O Vill. Masdi, Post and Police Station Sultanganj, District Bhagalpur. ............Respondents. For the Appellant: Mr. Rajeeva Roy, Advocate. For the Respondents: Mr. Mohan Kr. Singh, Advocate. ----------- 19. 19.07.2010 Heard learned counsel for the appellants and respondents, with their consent this appeal is being finally disposed of at this stage. This appeal has been preferred against the order dated 01.05.2004 passed by the 3rd Additional District Judge, Bhagalpur in Title Appeal No. 105 of 1978 by which the appeal has been dismissed as abated. Relevant short and admitted facts of this case are that plaintiff-appellant had filed suit for partition in year 1973, which was dismissed on contest giving rise to Title Appeal No. 105 of 1978. During pendency of the appeal respondent no. 2 Anant Lal Mistri died on 24.04.1980. The contesting respondents by filing petition within less than two months of his death intimated the court and party about 2 the death of respondent no. 2, leaving behind his widow Dhania Devi as the only heir, but no step was taken for substitution by the plaintiff- appellants. Then on behalf of the respondents one petition was filed on 12.01.1982 for declaration that this appeal stood abated, only thereafter on 15.03.1982 petition was filed on behalf of the appellants for substitution of Dhania Devi, the widow of the deceased respondent no. 2 after setting aside abatement and condoning the delay, but the prayer was dismissed. Thereafter, the plaintiff-appellants came out with another petition on 21.08.1984 stating therein that the couple had adopted one Damodar Mistri, who is already party to the suit as well as in appeal as respondent no. 7, so question of abatement does not arise. Rejoinder on behalf of the respondents denying all such facts was filed. Initially as submitted, Lower Appellate Court proceeded to inquire about the factum of adoption by recording evidence of the parties, but soon thereafter on the prayer of respondents such enquiry was stopped. And on the materials available on the record itself, the petition was dismissed, consequently the appeal. It is undisputed that in the plaint filed in the year 1973, this Damodar Mistri has been shown as son of his natural father and in that capacity was made party to the suit. At no point of time question of his adoption by respondent no. 2 was pleaded. Naturally there was no issue before the court below on that point after dismissal of the suit on contest. In memo of appeal filed in the year 1978 also, similar was the position and it continues even before this Court. Damodar Mistri is here in this appeal, figures as respondent no. 5 as one of the five sons 3 of deceased Narayan Mistri. It is also admitted fact that Narayan Mistri was also party to the suit before Trial Court. During pendency of the suit he died, consequently his name did not appear in memo of appeal before Lower Appellate Court. The only point for consideration is, as contended by learned counsel for the appellant in this appeal, is whether question of adoption was to be inquired into by the Lower Appellate Court and has it proceeded for and rightly stopped the enquiry by recording evidence and passed the impugned order on basis of facts and circumstances as stated above, which was undisputedly before the court below except reference of respondent no. 5, here in the appeal. Since right from 1973 the plaintiff-appellant was silent about so-called adoption of Damodar Mistri by original respondent no. 2 Anant Lal Mistri, during life time of both the original father and alleged adoptive father. Even on death of respondent no. 2, after getting full information within two months of his death no step was taken, subsequently one petition was filed for substitution but only of his widow Dhania Devi, which was dismissed due to it being filed at much belated stage, much thereafter, another petition was filed wherein for the first time question of adoption of Damodar Mistri by deceased respondent no. 2 was stated and in which the court below has rightly stopped further enquiry on the issue and taking into consideration all such facts and circumstances passed the impugned order. I find no illegality or irregularity therein and no other factual or legal aspect was placed before me for adjudication. As a result this 4 appeal is hereby dismissed on contest at admission stage itself. There is no order as to cost. Praveen ( Akhilesh Chandra, J.)