Jang Bahadur Rai and Another Vs Raj Kumar Rai and Another

1. The suit out of which this appeal has arisen was practically a suit for a declaration that the adoption of the defendant Jang Bahadur Rai, alleged to have been made by Deo Saran Rai, did not, in fact, take place and that Jang Bahadur is not the adopted son of Deo Saran Rai. The plaintiff is the brother of Deo Saran Rai, who is now dead. Musammat Parmati defendant is Deo Saran''s widow. She executed a document in which she declared that her husband had adopted Jang Bahadur Rai son of another brother of Deo Saran Rai and that Jang Bahadur was Dao Saran''s adopted son. The plaintiff''s allegation was that he and Deo Saran were joint and that in fact Deo Saran never adopted any boy. The Court of first instance held in favour of the adoption and dismissed the claim. The lower Appellate Court was of opinion that no adoption took place and that the allegation of an adoption is untrue. It, however, held that the two brothers were separate and not joint as alleged by the plaintiff. The defendant Jang Bahadur has preferred this appeal, and the main contention is that the Court below was not justified in examining the defendant Musammat Parmati, who in the Appellate Court gave evidence contrary to her allegations in the Court of first instance. In our opinion the Appellate Court was competent to examine any of the parties, if it considered it necessary for the ends of justice to do so. Musammat Parmati was a party to the suit and the learned Judge had the power, in our opinion, to examine her for the purpose of ascertaining the facts. He, however, did not decide the case solely or mainly on the evidence of Musammat Parmati but on other evidence to which he refers in his judgment. His finding upon the question of adoption is a finding of fact and must be accepted by us in second appeal. In this view the appeal fails. We dismiss it with costs, including fees on the higher scale.