JUDGMENT Kaushal Kishore, Member - This is a plaintiffs second appeal arising out of a suit under Section 59/180 of the U.P. Tenancy Act filed on July 21, 1966 which was decreed in favour of the plaintiff Ram Dularey by the learned trial court on September 9, 1976 but the trial court decree was set aside by the learned Additional Commissioner by his judgment dated June 6, 1980. 2. I have heard the learned counsel for the parties and have also perused the record. 3. The land in dispute is plot number 561 area 18 acres which was the hereditary tenancy of Mst. Sarjudevi. She expired about 1959 and after her, the name of her husband Budhram was mutated. Budhram also expired in 1962. The plaintiff Ram Dularey claims to be the adopted son of Budhram and Sarjudevi and having lived with them front the age of 5 years continuously claimed to have come in possession of the land after the death of Sarjudevi. The natural father of Ram Dularey is Sanwali and is the son of Sarjudevi's sister. Sanwali and Ram Dularey both had been living with Budhram and Sarju Devi since about 10 years before vesting. The plaintiff's case is that he inherited the land as adopted son of Budhram and also had perfected his rights by adverse possession, while the defendant claimed title on the basis of heir-ship as nephew of Budhram. The learned trial court held that the plaintiff is the adopted son of Budhram and has been in possession and so became hereditary tenant of the land in suit: The learned Additional Commissioner, Faizabad Division, Faizabad, however, did not accept the adoption of Ram Dularey for the reasons that the ceremony of adoption did not take place, that a son having precedence over husband, the mutation in favour of Budhram shows that there was no adoption and that the parentage of Ram Dularey was given mostly as Sanwali which also showed that Ram Dularey was not the adopted son of Budhram. The learned Additional Commissioner, however, has not considered the oral evidence on the point of possession and gave a finding that the plaintiff had not completed the necessary period of adverse possession to mature his rights. 4. The learned Additional Commissioner, however, has not considered the oral evidence on the point of possession and gave a finding that the plaintiff had not completed the necessary period of adverse possession to mature his rights. 4. The learned counsel for the appellant has urged that the adoption of Rani Dularey by Budhram was prior to the passing of the Act of 1956 and so for adoption only customary ceremony was sufficient. There was no need of a Datt Horn, its absence does not invalidate the ceremony. He urged that even for giving and taking of the child adopted, no particular form of ceremony is prescribed and even in the pleadings the defendant has not denied non-performance of any particular ceremony. He argued that the fact of adoption is not disproved by the son being not mutated after the death of his mother while his father remained alive. In the mutation application, the name of Sanwali given as father of Ram Dularey was bona fide mistake by the clerk writing the application and this too cannot be taken as proof against adoption. The counsel further argued that the plaintiff is a member of scheduled caste being adopted at the age of 5 years only, about the year 1944 and this being a case of an ancient adoption, the conduct of the parties becomes material evidence to prove adoption. In support, he cited rulings reported in A.I.R. 1970 S.C. 1268 and A.I.R. 1964 Orissa 117. The learned counsel argued that the High School certificate and extract from the school register relating to the period 1955 to 1958 amply proved the plaintiff to be the adopted son of Budhram and the conduct consisting of the plaintiff living jointly in the family of Budhram right from the age of 5 years as even admitted by the D.W.-1 further indicated the fact of adoption. Even the learned Additional Commissioner has not dis-believed the fact of their joint living. The learned counsel also argued that the learned trial court had given a finding that the plaintiff had been in possession of the land in suit after the death of Mst. Sarju Devi and the learned first appellate court has not reversed this finding of possession. The Additional Commissioner has not relied upon the Khasra entry of Kabiz in 1368F. The learned counsel also argued that the learned trial court had given a finding that the plaintiff had been in possession of the land in suit after the death of Mst. Sarju Devi and the learned first appellate court has not reversed this finding of possession. The Additional Commissioner has not relied upon the Khasra entry of Kabiz in 1368F. on the ground that no PA-10 was issued but the limitation being only 2 years for ejectment under Section 180 of the U.P. Tenancy Act, the entries made in the Khasra 1372-F. to 1374-F. were sufficient to mature the title of the plaintiff. The learned counsel argued that the pleading of the defendant that Barsati had filed a suit in 1374-F. was not correct and there was no proof either of any such suit or any decision in such suit filed by Barsati. Instead, Ram Dularey had filed the present suit on July 21, 1966. 5. The learned counsel for the appellant has further argued that rune irrigation receipts for payment of dues of tube-well of Hafiz Din Mohammad for the period February 17, 1965 to January 14, 1967 and rent receipts from Waqf Qadir Bux in the name of Mst. Sarjudevi for the period December 7, 1958 to March 15, 1966 clearly established the possession of Ram Dularey from 1366-F. continuously. These were not considered by the learned Additional Commissioner. Even the oral evidence on possession was not considered by the learned first appellate court and the appeal was allowed without upsetting the finding on possession of the plaintiff. He cited a ruling reported hi A.I.R. 1964 S.C. 466 in support of his contention that in case material piece of evidence was ignored by the first appellate court, the second appellate court is entitled to interfere with the finding of fact given by the first appellate court. He further cited a ruling reported in 1980 R.D. 73 in which it was held that while considering the question of adverse possession oral evidence also is to be appraised by the first appellate court. 6. The learned counsel for the respondent has argued that the adoption is a fiction which has to be proved. He further cited a ruling reported in 1980 R.D. 73 in which it was held that while considering the question of adverse possession oral evidence also is to be appraised by the first appellate court. 6. The learned counsel for the respondent has argued that the adoption is a fiction which has to be proved. He argued that there was no witness of giving and taking of the person adopted, that the parentage of Ram Dularey in the extract Khasra was given as Sanwali, that the mutation application gave the basis as a gift from Budhram and not adoption by Budhram and not adoption by Budhram and that in view of the mutation in favour of Budhram husband of Mst. Sarjudevi and not in favour of Ram Dularey the alleged adopted son having preferential claim, it was established that the adoption had not taken place. In respect of conduct, the counsel argued that even the evidence on conduct did not support the plaintiffs case because the stamp-vendor's register showed Ram Dularey noted as son of Sanwali and even in the community. Ram Dularey we not known as son of Budhram. He argued that the school register and High School certificate were not the final proof on parentage. The counsel further argued that the defendants being the nephews were entitled to succeed and so called receipts were only the irrigation slips and did not prove the possession of the plaintiff. The learned counsel for the appellant reaffirmed that the documents relating to payment of irrigation dues were real receipts and not just slips of demand. 7. Regarding the form of ceremony, in the former ruling A.I.R. 1970 S.C. 1286, the Hon'ble Supreme Court held that Hindu Law does not require that there shall be particular form so far as giving and acceptance is concerned, for a valid adoption, at that law requires is that the natural father shall be asked by the adoptive parents to give his son in adoption and the boy shall be handed over and taken for this purpose, it also appears desirable to quote the relevant portions of the rulings on the point of evidence regarding the conduct being only material evidence available as sufficient A.I.R. 1970 S.C. 1286 (1287). "In the case of all ancient transactions, it is but natural that positive oral evidence will be lacking. "In the case of all ancient transactions, it is but natural that positive oral evidence will be lacking. In the case of an adoption said to have taken place years before the same is questioned, the most important evidence is likely to be that the alleged adoptive father held out the person claiming to have been adopted as his son; the latter treated the former as his father and their relations and friends treated them as father and son. There is no predetermined way of proving any fact. If after taking an over-all view of the evidence adduced in the case, the court is satisfied that the adoption pleaded is true, it must necessarily proceed on the basis, in the absence of any evidence to the contrary, that it is a valid adoption as well." A.I.R. 1964 Orissa 117 (V 51 C 47) "Adoption - Ancient adoption-Evidence showing that the boy was treated for a long time as the adopted son at a time when there was no controversy is sufficient to prove the adoption although evidence of actual giving and taking is not forth coming-Burden lies on the other side to show that the adoption did not take place." 8. As is known, the dispute started sometime in 1964 while admittedly for the past over 20 years, Sanwali, his wife and son Ram Dularey had been living in the same house with Budhram and Mst. Sarjudevi even though the real brother of Budhram had already separated and was living in the adjoining separate house around 1944. Ram Dularey was adopted by Budhram in 1955 and for all 20 years without any dispute they were living together Ram Dularey was admitted in the school as son of Budhram and the High School certificate also shows his parentage as Budhram. The learned first appellate court has found some discrepancy in the evidence of witnesses about Havan being performed earlier or the giving and taking of the adopted child being performed earlier and on this basis has discarded the evidence of adoption. When a long period has elapsed, witnesses cannot be expected to remember the sequence so correctly but all the witnesses to the ceremony have agreed about both ceremonies being performed, Havan and giving and taking of the adopted child. 9. When a long period has elapsed, witnesses cannot be expected to remember the sequence so correctly but all the witnesses to the ceremony have agreed about both ceremonies being performed, Havan and giving and taking of the adopted child. 9. The other ground given by the learned Additional Commissioner that the son should have preceded the husband after the death of Mst. Sarjudevi in mutation proceedings and that in many cases Ram Dularey was recorded as the son of Sanwali, it must be remembered that Ram Dularey was not an entirely outsider person. He was almost a grand son of Budhram. This material fact has been overlooked by the learned first appellate court while reversing the decree and even by the learned trial court while giving a correct finding on the basis of detailed discussion of oral and documentary evidence. I observe from tire copy of the voters-list of 1950 which is paper number 20/84, that Budhram was 70 years old and Sanwali recorded as the son of Budhram was 30 years old. The list shows that Sanwali though Budhram's wife's sister's son, had so long back shifted and settled within the family of Budhram and that he was recognised as son of Budhram and was so recorded in the voters-list.' The same thing can be found in the copy of the voters-list prepared in 1960 again showing Sanwali as son of Budhram. Budhram, his wife Mst. Sarjudevi, son Sanwali (according to the voters-list), Kastoori wife of Sanwali and Ram Dularey son of Sanwali all were living in the same house. The general recognition at the time was that Ram Dularey was the grand-son of Budhram. In such case, even though adoption was there and R-32 Budhram and Mst. Sarjudevi treated Ram Dularey as their adopted son, mistakes in writing the parentage of Ram Dularey were bound to occur. But no single instance has been shown that Budhram ever showed by his conduct, written or oral that Ram Dularey was not his adopted son. Rather the school certificate and the copy of admission register conclusively proved that Ram Dularey was the adopted son of Budhram. Apart from the mistakes in writing applications etc., the general recognition of Ram Dularey as the adopted son of Budhram was not contested in the village but is rather amply proved by the five witnesses produced by the plaintiff. 10. Apart from the mistakes in writing applications etc., the general recognition of Ram Dularey as the adopted son of Budhram was not contested in the village but is rather amply proved by the five witnesses produced by the plaintiff. 10. the defendants-respondents have not been able to explain why and how the parentage of Ram Dularey was recorded as Budhram on the date of admission on July 2, 1955 and in the High School certificate dated June 17, 1958, if the adoption was not a fact. Even the D.W's. have agreed that right from the childhood Ram Dularey had been living in the family of Budh Ram and Mst. Sarjudevi till their death and even afterwards. The common ancestral house was long back divided by putting a wall in between and in the portion of Budhram, Ram Dularey and Sanwali continued to live even after the death of Budh Ram. When relationship is such that for all practical purposes Budhram treated Sanwali as his son and Ram Dularey as his adopted son, naturally, it was not likely for the plaintiff to 'A' his name mutated when Budhram was alive. However, it does not mean that Ram Dularey had not inherited because nominally Budhram was recorded but he was being fully assisted in the agricultural work by his adopted son Ram Dularey. Municipal receipt dated October 22, 1962 for payment of water-tax for the period 62-63 issued in the name of Budhram through Ram Dularey and the tube-well receipts as well as rent receipts right from 1958 produced by the plaintiff show that the plaintiff had been in possession of the land in dispute and was managing the cultivation throughout. The defendants have not been able to produce any such receipts showing any agricultural operation by them on the land in dispute. 11. Even if the extract Khasra 1368F. be not relied upon, other evidence on record discussed above including the oral evidence of P.W's. shows continuous possession of the plaintiff upto date of filing the suit in 1374F. 12. Although I find the plaintiff to have satisfactorily established that he is the adopted son of Budhram and Mst. Sarjudevi and so entitled to succeed them as heir, the other alternative plea of the plaintiff of maturing his title by adverse possession also serves him fully well. 12. Although I find the plaintiff to have satisfactorily established that he is the adopted son of Budhram and Mst. Sarjudevi and so entitled to succeed them as heir, the other alternative plea of the plaintiff of maturing his title by adverse possession also serves him fully well. Because if title is not recognised, it is the settlement law that the possession must be deemed adverse. The limitation being two years, adverse possession of the plaintiff would be much more than the period required and would, in any case, suffice to mature his title by adverse possession as well. Here, I must observe that Kabiz entries from 1372F. onwards contain a reference to diary number and date by the Lekhpal and do not suffer from any defect. On the hand, there is absoutely no evidence of the defendants' entry of possession on the land in dispute after the death of Budhram. Just as Ram Dularey continued living in the house of Budhram he also continued cultivation on the land left by Budhram. 13. The above discussion leaves no alternative to the finding of the learned trial court being the only correct finding. Accordingly, the judgment and decree by the learned Additional Commissioner cannot be sustained and this appeal being allowed, the judgment and decree by the learned Additional Commissioner dated June 6, 1980 is hereby set aside and the judgment and decree by the learned trial court dated September 9, 1976 is hereby confirmed.