THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY C.M.A.No.2216 of 1998 JUDGMENT: The appellant filed O.P.No.258 of 1996 in the Court of the Additional District Judge, Ongole under Section 372 of the Indian Succession Act with a prayer to declare him as the successor of late Bojja Devaiah @ Peda Nagaiah. He stated that Bojja Devaiah and his wife adopted him and thereby, he became an adoptive son. Devaiah is said to have died intestate on 13.03.1991. It was alleged that the deed of adoption was burnt, when a fire accident has taken place on 17.03.1991. The adoption is said to have been mentioned in S.C.No.3 of 1992 on the file of the District Judge, Ongole. The retirement benefits of Devaiah to the tune of Rs.1,50,000/- were said to have been deposited in the second respondent bank. The particulars of the amount that is still available with the bank were mentioned. During the pendency of the O.P., respondents 3 to 7 were added as parties. Through its order, dated 12.03.1998, the trial Court dismissed the O.P. on the ground that no evidence was adduced and it was not even established that Devaiah died, much less, the adoption has taken place. The same is challenged in this appeal. Sri V.V.L.N.Sharma, the learned counsel for the appellant, submits that the trial Court failed to take into account, the fact that there was no resistance for the claim of the appellant and in that view of the matter, succession ought to have been granted. The appellant pleaded that he was adopted by late Devaiah and his wife, and claimed succession for the estate, particularly the amount that was said to be lying with the second respondent. This is not a case where any natural legal heir of a deceased person filed the O.P. and the other natural descendants did not object. Though the appellant is said to have filed several documents, none of them were made part of the record, on account of the fact that the appellant did not enter the witness box. The first and foremost requirement, namely, the death of the person, whose estate is the subject matter of the O.P., was not proved. Adoption is another issue. The trial Court was placed in a piquant situation. The reason is that respondents 3 to 7, who initially offered resistance to the claim of the appellant, came forward stating that they do not have any objection. Their relation with the deceased was not even established. The appellant did not choose to enter the witness box. The result was that not a single document became part of the record of the Court. Added to this, a representation was made to the effect that the dispute has been settled outside the Court. Faced with this situation, the trial Court dismissed the O.P. This Court is of the view that no other method of disposal could have been possible in the given circumstances. The trial Court did not record any finding on merits. Even now, the appellant can file an O.P. duly impleading the affected parties, pleading the relevant facts and placing the connected material before the trial Court. In case he proves the facts pleaded by him, relief can certainly be granted. The order passed in O.P.No.258 of 1996 cannot be treated as res judicata, since no findings were recorded on merits. The C.M.A. is accordingly dismissed, leaving it open to the appellant to file a fresh O.P. In case such O.P. is filed, it shall be dealt with on its own merits and the order in O.P.No.258 of 1996 shall not be treated as res judicata. It shall be open to the appellant to submit an application to return the originals, if any, filed before the trial Court. In case certified copies are substituted, the trial Court shall consider the feasibility of returning the originals. There shall be no order as to costs. _____________________ L.NARASIMHA REDDY,J Dt:13.08.2009 kdl