sEc0ND APPEAL No q ’72006 \\ E x F2 State : of Ch‘hat‘tisga’‘rh, Through- The Collector; Ralgarh [C G ] SECOND APPEAL UNDER SECTION100 OF CIVIL PROCEDURE CODE 1908 -__- 9 APPELLANTS son of Dukhu Ganda DEFENDANT '7 /Ramchandra aged about 45 years Agnculturlst ' R/o Padkipatu Tah Sarangarh « Distnct Raugarh [C G ] VERSUS RESPONDENTS‘ PLA‘iN’TIFFS ‘ x" 1 ' »-:- .. /1z] Thandaram aged 42 years S/o Dukhuganda Agriculturlst‘ R/o Village Padkipati Tahsll , ‘ , Sarangarh District Raiga‘rh [C G ] XI—HC—78 HW,WE,W Cm wig «A» Q Wmtoogooooooot‘oo‘ 00o 1H 200 WW (W) mafhanéw WW§WW %a¢%u311%ir 25.07.2006 Shri Rajneesh Singh Baghel, Counsel for the appenant, Arguments on admiss This is the defendant: 100 of the Code of Civil Pro the impugned judgment and Civil Appeal No.8-A/ 2005 Judge, Rajgarh (C.G.). T allowed the said appeal which was dismissed by dled against the judgment in Civil Suit No.18—A/2 Sarangarh Disnict Raigarh. i011 heard. Otder passed as follows : 'ORAL ORDER 25 .07.2006 s Second Appeal $ed under Section sedum. It has been dimcted against decree dated 10/01/ 2006 passed in by the Second Additional Distn'ct learned Additional District Judge d decreed the suit of the plaintiff, Trial Court. The said appeal was d dectee dated 28/ 2/ 2005 passed 03 by the Civil Judge Class—II, The brief facts are that the plaintin' and the defendant are the teal brothers. The suit lands were the self-acquired properties of one Dano @ His wife also died and there was no one in his branch to succeed his pmperties. The plaintiif nled a suit for declaration that the suit lands of Schedule-A of the plaint should be declared as the l d Sonadhar, who was the elder uncle (Tau) of plaintid‘ and defendant. Dano died issueless. s XI—HC-78 WW,W,W ‘x mm (W) WWW WWW ' WW§W r %Wm Y!, mwm temative, he also claimed that if the t possession, the lands be pariitioncd separatc possession of the same. 1de by the plainh'if, the defendant Jptéd son of Late Dano @ Sonadhar, 3 year 1977 through anadoption ‘deed This adoption deed)hled as D-7)was rded the finding that the adoption :‘endant. However, it held that the real bmthers. Even after holding this, the Trial Court dismis ed the suit of the plaintin‘. Against the aforesaid judgment and ecree passed by the Trial Court, the plaintih‘ med an appeal bef the Lower Appellate Court. The Lower Appellate urt allowed his appeal and decreed the suit holding that s' ce these two brothers were the successors of Late Dano Sonadhar, they will‘ succeed his properties to the extent of 2 sham each in the same. It also ordered for partition of the suit properties in the above manner and also for delivety of p0 session of the properties allotted to the share of the plaintih‘. l was further held that the defendant could not establish that Sonadhar. was the adopted son of Dano @ Wm ”shafta 3Qhint 200 of joint ownership and possession in between the two brothers having 1/2 sham each. In ai plaintiE is not found in join‘ and he should be given Against the said claim mi pleaded that he was the adl who had adopted him in tht dated 6th of December 1977 not a registered document. The Trial Court reco was not proved by the de} plaintjh‘ and defendant are W e o v \ XI—HC-78 MW,W,W l vtl'qgl-ai ‘ XI-HC—78 3am,®’ehm,1%lamg{ . 333.1%...94’{a 200 WW (W) 3 WWW#WW WWW iaswm It is against this judgment and decree passed by the Lower Appellate Court, the defendant has preferred this Secpnd Appeal under Section 100 ofthe Code of Civil Procedure. It as been held in the matter of Madhusmmn Das v. Smt. Nwani But and other: reggrted in AJ.R. 1983 s.C. 114 that for a valid adoption, the physical act of giving and taking is an essential requisite, a ceremony imperative in all adopn'ons, Whatever the caste. And this requisite is satished in its essence only by the actual delivery and acceptance of the boy, even though there exists an expression of consent or an executed deed of adoption. In some cas ‘ , to complete the adoption a “datta homam" has been conside d necessary, but in the case of the twice-born classes no suc ceremony is needed if the adopted boy belongs to the same go a as the adoptive father. Here the question in Iation to gotra etc is not in dispute. The dispute is regarding p of of factum of adoption. The Trial Court as well as the First A pellate Court have concurrently held that the defendant could n t prove that he was the adopted son of Dano @ Sonadhar and r this reason, in the line of natural succession, plaintiE and d fendant, who are the real brothers, have been held to be joint successors of the properties of their elder uncle. «a XI—HC~78 saw,m,mgt 9i} WW(W) mimmaw L1 I :amr%w'cm There appears to b no pawcrsity in the concurrent hdmgs recorded by the o Courts below in this regard. No substantial question of is involved in this appeal. Them is no merit in this appeal an the same is dismissed at the motion stage itself. In'the fesult all the ' terim applications stand disposed of. ,‘Aw/ ’_ /\ SCI/— Sunii Kumar Sinha Judge