This Civil Misc. IInd. Appeal is directed against the order of District Judge, Anantnag passed in Civil Appeal No. 3 of 1988 titled Mst. Zaereefa v. Fahmeeda and Anr. The dispute between the parties is on the landed property left by one Usman Parrey at Kilam Buchgam Tehsil Kulgam. Mst.Zareefa claims to be the adopted daughter (Dukhtar Parwarda) of said Usman Parray and has therefore filed a suit for declaration and mandatory injunction against the real daughter of Usman Parray namely Fahmeeda and her husband namely Bashir Ahmad Dar. Mst. Zareefa alleges that the parties are governed by custom and under the custom Usman Parray adopted her during her infancy and later executed a will deed in her favour on 28-1-1967. She further claims that Usman Parray made her as Khana Nasheen daughter and that till his death she performed her duties as his daughter. According to her the deceased had appointed Fahmeeda, his real daughter too as Khana Nasheen daughter and therefore both of them will inherit the landed property left by Usman Parray in equal shares. It is the case of Mst.Zareefa that Fahmeeda has forged a cancellation deed after the death of Usman Parray and that under the said document the defendants have, about one month prior to the institution of the suit refused to hand over the possession of the land to her as such she has got the cause of action to file the suit. She therefore filed a suit for declaration and mandatory injunction with the prayer that she be declared as the adopted daughter of Usman Parray as such entitled to half of the share in the landed property left by him. She has further prayed that cancellation deed executed by Usman Parray on 18.12.1983 was forged therefore be declared as null and void and that the possession of the land be handed over to her. The defendants resisted the suit on the main ground that though the parties were in the matters of inheritance governed by custom but there is no custom prevalent in the family of the parties or the area under which a daughter is taken in adoption and made a dukhtar parwardah. The defendants took other pleas too and on 22.7.1983 the court examined both Mst. Zareefa and Mst. Fahmeeda on the pleadings they had submitted before the Court. The defendants took other pleas too and on 22.7.1983 the court examined both Mst. Zareefa and Mst. Fahmeeda on the pleadings they had submitted before the Court. On 10th July 1997 the trial court framed as many as sixteen issues in the case out of which issue No. 12 related to limitation. The Court after hearing the parties on the issue dismissed the suit of the plaintiff on the ground that it was barred by limitation. The trial court held as under:- "On 11.11.1989 Tehsildar Kulgam attested the mutation and not on 13.01.1989 as stated by the Learned Counsel for the Plaintiff. Because Plaintiff was in knowledge of the fact that her adoptive father has disputed her status of "Daktare Parvarda". It was her duty to safe-guard her right well-in-time and not at a stage when much water has flown beneath the bridge. For the foregoing reasons the instant suit is barred by limitation and the Issue No. 12 is decided in favour of the Defendant and against the Plaintiff. Thus being so the position as discusses above the result is this, that the suit of the Plaintiff fails which is hereby dismissed. File to go to records after due completion." Against the findings of the learned trial court the plaintiff filed an appeal before District Judge, Anantnag. The District Judge, disposed of the appeal by means of the impugned judgement on 30.11.1998. The 1st Appellate Court found that the trial Court had wrongly applied article 118 of first schedule of the Limitation Act to decide the point of limitation as the said article govern suits instituted for obtaining declaration on validity of an adoption and not on factum thereof. The Court found that the controversy before the trial court was on factum of the alleged adoption and not its validity so the proper article was 119 and not 118. At the same time the Ist Appellate Court found that since there was no difference in the period of limitation, i.e 6 years prescribed by the two articles apparently the application on wrong article would not make any difference in terms of time. At the same time the Ist Appellate Court found that since there was no difference in the period of limitation, i.e 6 years prescribed by the two articles apparently the application on wrong article would not make any difference in terms of time. The court therefore found that though except for change of the article 118 to 119 the impugned judgment would not require any modification but in essence however it was not so as article 118 prescribes six years to be reckoned from the time when right of adopted son are interfered with while under article 119 the time start running from the point when right to sue accrues to the plaintiff and therein, according to the Court lies the difference. Determination of right to sue involved adjudication on certain crucial questions of fact that renders the issue of limitation a mixed question of fact and law requiring trial. The 1st Appellate court therefore found that though the period of limitation was prescribed as six years in both the Articles 118 and 119 since Article 119 applied to the instant case under the said article time starts to run from the point when right to sue accrues to the plaintiff, for that the issue of limitation becomes a mixed question of fact and law requiring trial. The Court therefore, set aside the judgment and decree impugned before it and remanded the case to the trial Court for fresh trial and directed that both the issues relating to limitation and cause of action be treated as mixed question of fact and law and tried accordingly. It is this finding of the Ist appellate Court that has given rise to the present 2nd Appeal. The Appellant herein has assailed the findings of the first Appellate Court on various grounds. The Appellant herein has in the memorandum of appeal framed the following question for canvassing the same before this court:- "Whether Article 118 of the Limitation Act is to be invoked on the admitted pleadings of the parties or whether Section 119 of the Ist Schedule of the Limitation Act is to be invoked?". The respondent in the present case was represented by Mr.A.Haq Advocate, he appeared on various dates but for quite some time has absented himself. Hence the present appeal is heard in exparte in absence of the respondent. Heard. The respondent in the present case was represented by Mr.A.Haq Advocate, he appeared on various dates but for quite some time has absented himself. Hence the present appeal is heard in exparte in absence of the respondent. Heard. Considered On the facts and circumstances of the case I find a substantial question of law is involved in the present 2nd Appeal. I formulate the following question in terms of Section 100(4) of the Code of Civil procedure for adjudication: (i) What is the ambit and scope of Article 118 of Limitation Act in adoption cases ? (ii) Whether adoption of daughter (dukhtar Parwarda) is a well recognized custom as such its validity is not required to be proved in an adoption case. Before proceeding further, we may have a look on articles 118 & 119 of the Limitation Act, which provide as under:- Article 118 Description of suit period of limitation Time from which period belongs to run To obtain declaration that an adoption is valid Six years When the rights of the adopted son as such are interfered Article 119 Suit for which no period of limitation is provided elsewhere in this schedule Six years When the right to sue accrues The trial Court has applied Article 118 of the Limitation Act and found that since Usman Parray as per the admission of the plaintiff herself has died ten years back so the plaintiff has filed the suit beyond the period of limitation. The Appellate Court on the other hand came to the conclusion that since it was not a case where the validity of an adoption was in question and only the factum of alleged adoption was disputed, the case did not fall under article 118 of the Limitation Act but under article 119 of the Act. Under Article 119 since the limitation starts from the time when cause of action arises, this being the mixed question of fact and law the trial court ought not to have dismissed the suit on the question of limitation. Going through the pleadings of the parties, I find that the learned Ist Appellate Court has fallen into a patent error by holding that the validity of adoption was not in dispute in the present case. Going through the pleadings of the parties, I find that the learned Ist Appellate Court has fallen into a patent error by holding that the validity of adoption was not in dispute in the present case. The plaintiff has in her suit specifically pleaded that their family was following custom under which a daughter could be taken in adoption, while as the defendants in their written statement have vehemently denied this fact. The defendants have categorically stated in various paras of their written statement that in their family or area no such custom prevails under which a daughter is made a `Dukhtar Parwarda. From the pleadings therefore, it is evident that not only the factum of adoption of the plaintiff but also the validity of such an adoption was in dispute. When such was the position, the Ist. Appellate Court was not correct in saying that article 118 of the Limitation Act was not applicable. Adoption of a daughter (dukhtar parwarda) is very rare in the valley. There is no decided case of this Court, at least none was brought to my notice in which the High Court gave recognition to such a custom. On the other hand in Mst. Nadira v. Gani Bhat, Civil 2nd.Appeal of 16th Poh 2005 decided on 01.06.1949, the High Court refused to recognise such a custom. Even in the Code of Tribal Custom by Sant Ram Dogra, there is no mention of such a custom prevalent anywhere in the Valley. Sant Ram Dogra who was the Assistant Settlement Officer of Kashmir and was put on a special duty by the Maharaja of the State in 1972 Svt. to codify the Tribal Customs of the Valley of Kashmir, states on the custom of adoption as under (page 9 ):- "Adoption is of the Hindu origin, and has been maintained among the Mohammadans in the valley in spite of all the bigotted attacks against this institution for the past six hundred years. The Zamindars of the valley still think an adopted son as good as heir as a real son. No gifts are ever announced in their favour, as they inherit their adoptive fathers property as real sons would do, without any gifts or wills in their favour which some learned Maulvis desire to be made in all such cases to legalise the inheritance by the Shariat as well. No gifts are ever announced in their favour, as they inherit their adoptive fathers property as real sons would do, without any gifts or wills in their favour which some learned Maulvis desire to be made in all such cases to legalise the inheritance by the Shariat as well. It is only of late that men of the towns and the city go against this old custom on the ground of its having already been discarded by the prophet in Zaids case (Quran 39,IV, Palmers Translation). They say that an adopted son may be taken by a sonless man, but he can not inherit his property, unless the adoptive father gives it to him by gift or will strictly in accordance with the orders of the Shariat. Among the Shia and the Sunnis, adoptions are generally made at an age when boys are a year or two old, so that they may become attached to their adoptive parents. Adopted sons do generally inherit the property of their adoptive fathers. They can inherit the property of their natural father, if the father or brother consent to it, otherwise not. A father may adopt , if his own son or the adopted son has become an atheist or irreligious. A man with defective organs can adopt, there being no restrictions. An adopted son may be disinherited for his misdemeanor or misconduct but this is not possible among the Pandits and the Sikhs. Among the Pandits , an only son or the eldest son cannot be given in adoption. The common sign for legality of adoption is that mother of the boy to be adopted as a son, could be married by the adopter, if she would have been unmarried, is totally disregarded by the Kashmiri Pandits. A daughters son or a sisters son can also be adopted. The Dharama Shastra is not followed in adoption here." On page 62 he specifically deals with the chapter on `Adoption and has answered various questions regarding adoption, which he has himself framed taking into consideration various customs prevalent in the valley. There also he makes no mention of the adoption of daughters. Similarly the relevant statutes too have not given any recognition to such a custom. There also he makes no mention of the adoption of daughters. Similarly the relevant statutes too have not given any recognition to such a custom. In the Jammu & Kashmir Agrarian Reforms Act, which came into force in the year 1976 though an adopted son or pisarparwardah is mentioned in section 2 (12) but there is no mention of a dukhtar parwardah in any of the provisions of the Act. In the Tenancy Act,1980 (svt.) "Appointed heir" has been explained by section 68 as including a son informally adopted in accordance with customary law. Similarly Rule 54 (a) of Standing Order No. 23-A mention of only an adopted son has been made. There is no presumption in favour of a custom. On the other hand, as is specifically laid down in Section 4 of the Jammu & Kashmir Laws Consolidation Act, presumption in matters of inheritance etc is in favour of the personal law. The parties will be presumed to be governed by the personal law unless they prove that they are governed by custom and that such a custom abrogates their personal law. When the custom alleged is not prevalent and has not been recognised by any Code of custom, statute or by a Court, the burden lies heavily on the person who alleges it, as in such a case he has not only to prove the existence of a custom but its validity too. It was held by the Apex Court in A. Raghavamma & anr v. A. Chenchamma, AIR 1964 SC 136, that a person who seeks to displace the natural succession to property by alleging an adoption must discharge the burden that lies upon him by proof of the factum of adoption and its validity. In Dewan Jewan Nath Madan v. Rasul Gadoo, 5 J&K LR 111, Board of Judicial Advisers held that: `The general principle is that the ordinary law regulates everything beyond custom. Not only each custom must be alleged, but separate incident of a custom must be proved to exist as customary law. Every separate departure from the ordinary law has to be supported by evidence of a binding custom. Not only each custom must be alleged, but separate incident of a custom must be proved to exist as customary law. Every separate departure from the ordinary law has to be supported by evidence of a binding custom. Similarly in Padam Nath v. Prithvi Nath, AIR 1957 J & K 53 it was held that if a special custom is pleaded which is in derogation of the general bulk of the population, it lies very heavily upon the party to prove such a special custom. Thus when a party alleges the custom of dukhtar parwarda, which has not received any recognition so far by the Courts, the proof of such a custom includes the burden to prove its validity too. The ground taken by the learned Ist. Appellate Court was not therefore sustainable at all. Question (i) is replied accordingly. Article 118 of the Limitation Act include cases where the validity of adoption is in dispute. A person alleging adoption if is confronted with a situation where the very validity of adoption is challenged, he may file a suit for declaration that his adoption is valid. The limitation in such case runs from the period when the rights of such an adopted son as such are interfered with. Article 118 specifically deals with such a case. Article 119 on the other hand is a residuary clause and provides period of six years as limitation for all those cases for which no specific period of limitation is provided elsewhere in the schedule of the Act. Thus Article 119 has a wider scope while as Article 118 is limited only to the declaration regarding validity of adoption. Though the period of six years is provided in both the cases, time under Article 118 will start when the right of adoption of the person concerned are interfered with, while as under Article 119, being a residuary clause, time will start running when the right to sue accrues. Question (ii) is replied accordingly. In the present case since both validity and factum of adoption is in dispute, the case will fall under Article 118 of the Limitation Act. The findings of Ist. Appellate Court to that extent are therefore set aside. The matter however does not end here. Question (ii) is replied accordingly. In the present case since both validity and factum of adoption is in dispute, the case will fall under Article 118 of the Limitation Act. The findings of Ist. Appellate Court to that extent are therefore set aside. The matter however does not end here. Perusal of the order passed by learned trial court shows that even the learned Sub Judge has erred in holding that the suit was barred by limitation as it was filed after ten years of the death of Usman Parray. Article 118 as reproduced above, shows that it is not the death of the adoptive father which gives rise to the cause of action to a person alleging and relying upon an adoption, but the time from which his rights as adopted son are interfered with. The question as to from which period the rights of such a person were interfered with is again a question of fact which can be proved by evidence before the trial court only. The Plaintiff has in her plaint very specifically stated that the cause of action to her arose about one month prior to filing of the suit when her rights as Dukhtar Parwarda were denied. This gives the period of limitation and unless contrary is shown, the period of limitation is to be reckoned on the basis of this plea. The defendant may however by leading positive evidence show that it was even before the filing of the suit that the plaintiff asserted her right as Dukhtar Parwarda which was specifically denied by the defendants. In such a case , if he proves that such denial has taken place more than six years prior to the institution of the suit, the suit will be hit by limitation. But in absence of such an evidence how has the trial court come to the conclusion that the suit was barred by limitation? Under these circumstances, I find that though setting aside of the finding of the trial court and remanding the case by the Ist. Appellate court was correct, but the reasons given by him were not in accordance with the provisions of law. The order passed by the Ist. Appellate Court regarding the setting aside of the judgment of the trial court and remanding the case to it for a fresh finding is therefore upheld though on a different ground. Appellate court was correct, but the reasons given by him were not in accordance with the provisions of law. The order passed by the Ist. Appellate Court regarding the setting aside of the judgment of the trial court and remanding the case to it for a fresh finding is therefore upheld though on a different ground. The file be returned to the trial court with the direction to proceed with the case expeditiously as it has taken 13 long years to decide the point of limitation and the case is yet at the initial stage. Appellant to appear before the trial Court on 20-11-2004.Fresh summons be issued to the respondents herein by the trial Court before proceeding in the case. Appeal disposed of.