JUDGMENT 1. - By this civil second appeal u/s. 100 CPC the plaintiff-appellants challenge the judgment and decree dated 25.3.1991 passed by the learned Additional District Judge, Deeg whereby he while allowing the first appeal of the defendant-respondents reversed the judgment and decree dated 31.8.1987 passed by the learned Civil Judge, Deeg. 2. The facts relevant for the disposal of the appeal may be summarised that the parties to the appeal are me descendants of one common ancestor. Appellants' father Gaddar Mal and father of the respondents-Chotey Lal were sons of Mannn Lal. Mannu Lal and Gaddar Mai purchased the suit property as a Joint Hindu Family property. Plaintiff-appellants filed a suit for partition of the suit property against Chotey Lal, who expired during pendency of the suit and was substituted by the present respondents. It was averred in the plaint that after the death of Mannu Lal, appellants' father and respondent became owner and were in possession of the Joint Hindu Family Property wherein the appellants and respondents have got equal half share. The respondents admitted that the suit property was purchased as Joint Hindu Family Property but the case of the respondents in the written statement was-that after-purchase of the house, appellants' father was adopted by one Gopal Das. Therefore, after adoption plaintiffs' father had no interest in the property. 3. The learned trial Court after framing issues and recording evidence of the parties vide its judgment and decree dated 31.8.1987 decreed the suit of the plaintiff-appellants. Feeling aggrieved against the judgment and decree of the trial Court, the defendant-respondents filed regular civil first appeal before the learned Additional District Judge, Deeg, who vide its judgment and decree dated 25.3.1991 allowed the appeal and set aside the judgment and decree of the trial Court and dismissed the suit of the plaintiff-appellants. Hence, this second appeal before this Court. 4. This Court vide its order dated 25.2.1992 admitted the appeal only on the following substantial questions of law:- (1) Whether the learned first appellate Court was justified in set-ting-aside the finding on Issue No. 1, without there being any material on record? (2) Whether the finding on Issue No. 1 of the learned first appellate Court is perverse? 5. I have heard the learned counsel for the parties. 6. (2) Whether the finding on Issue No. 1 of the learned first appellate Court is perverse? 5. I have heard the learned counsel for the parties. 6. Learend counsel appearing for the plaintiff-appellants challenged the finding of the first appellate Court on the question of adoption of Gaddar Mai. It was argued that the finding on the question of adoption of Gaddar Mai is based on surmises and conjectures. The sale deed dated 30.1.1926 whereby the appellants father and Munna Lal purchased the disputed property clearly proves that Gaddar Mai had not come in adoption till 1926. In 1940 Gaddar Mai and Chotey Lal mortgaged the disputed property and in the mortgage deed paternity of Gaddar Mai has been shown to be that of Munna Lal. Therefore, Gaddar Mai had not gone in adoption in between 1926 to 1940 but the first appellate Court, merely on a false explanation offered by the respondents, arrived at ah erroneous conclusion. It was further argued that defendant-Chotey Lal himself made a contradictory statement about the time and place of adoption but the first appellate Court ignored the material evidence. As per the argument of the learned counsel for the appellants, the learned first appellate Court has also committed an error in placing reliance on the sale deed dated 17.11.1943 whereby some property situated in Govindgarh was sold by Gaddar Mal. To prove the said sale-deed, neither the scribe nor any witness to the same has been examined by the respondents. Learned counsel for the appellants further contends that even the evidence of DW-5 Nannu Lal, DW-6 Jagannath and DW-7 Chhaju Ram, which has been relied upon by the learned first appellate Court is not believable. Therefore, the learned first appellate Court was not justified in setting aside the finding of the trial Court on issue No. 1 without there being any material available on record and thus, the finding recorded by the learned first appellate Court on issue No. 1 is perverse, as being based on surmises and conjectures. 7. Therefore, the learned first appellate Court was not justified in setting aside the finding of the trial Court on issue No. 1 without there being any material available on record and thus, the finding recorded by the learned first appellate Court on issue No. 1 is perverse, as being based on surmises and conjectures. 7. On the other hand, learned counsel for the defendants- respondents by referring to Section 100 CPC and various judgments of the Apex Court has vehemently argued that existence of substantial question of law is sine qua none for exercise of powers by the High Court u/s. 100 CPC and the High Court while exercising the jurisdiction u/s. 100 CPC cannot reverse the finding of the lower appellate Court on facts merely on the ground that on facts found by lower appellate CoUrt another view was possible. Mere appreciation of evidence cannot be held to be raising a substantial question of law. 8. I have pondered over the rival submissions and have gone through the legal position. Before proceeding further it would be profitable to understand the legal position and the law laid down by the Apex Court on the issue in question. 9. Admittedly, Section 100 CPC introduce the embargo for definite objectives and generally in a second appeal a finding of fact even if erroneous will not be disturbed. Needless to say however, that perversity itself is a substantial question of law worth adjudication. 10. Their Lordships in the case of Jai Singh v. Shakuntala, (2002) 3 SCC 634 have held that : "while scrutiny of evidence does not stand out to be totally prohibited in the matter of exercise of jurisdiction in the second appeal and that would in our view be too broad a proposition and too rigid an interpretation of law not worthy of acceptance but that does not also clothe the superior Gurts within jurisdiction to intervene and interfere in any and every matter - it is only in very exceptional cases and on extreme perversion that the authority to examine the same in extenso stands permissible - it is rarity rather than a regularity and thus in fine it can be safely concluded that while there is no prohibition as such, but the power to scrutiny can only be had in very exceptional circumstances and upon proper circumspection." 11. Again in Kulwant Kaur & Ors. Again in Kulwant Kaur & Ors. v. Gurdial Singh Mann, (2001) 4 SCC 262 their Lordships of the Supreme Court have held that "........but the fact remains that while it is true that in a second appeal a finding of fact, even if erroneous, will generally not be disturbed but where it is found that the findings stand vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to deal with the issue. This is, however, only in.. the event such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity itself is a substantial question worth adjudication - what is required is a categorical finding on the part of the High Court as to perversity." It was further observed as under:- "Judicial approach being justice oriented, exclusion of jurisdiction of the High Court under the circumstances as contended by Mr. Mehta, would lead to an incongruous situation being opposed to the concept of justice.....but the fact remains that scrutiny of evidence will be totally prohibited in the matter of exercise of jurisdiction in second appeal would be too broad a proposition and too rigid an interpretation of law not worthy of acceptance. If the concept of justice so warrants, we do not see any reason why such an exercise would be depricated." 12. In Bondar Singh & Ors. v. Nihal Singh & Ors., AIR 2003 SC 1905 same view has been reiterated and it has been held that perverse and contrary to evidence findings of subordinate Courts can be set aside by High Court in second appeal. 13. Therefore, it emerges on the ratio of catena of pronouncements by the Apex Court that perversity itself is a substantial question worth adjudication. Now in the light of the law propounded by the Apex Court, this Court has to evaluate the pleadings and the evidence adduced by the parties to come to a conclusion whether finding of the first appellate Court on issue No. 1 is perverse or not? 14. The plaintiff-appellant-Kalyan Prasad, who appeared as PW-1 has categorically denied the fact of adoption of Gaddar Mai by Gopal Das. 14. The plaintiff-appellant-Kalyan Prasad, who appeared as PW-1 has categorically denied the fact of adoption of Gaddar Mai by Gopal Das. Similarly, PW-2 Smt. Kastoori Bai, widow of Gaddar has also denied the fact of adoption of Gaddar Mal. In their cross-examination also, nothing substantial could be brought on record by the defendants in connection with adoption of Gaddar Mai by Gopal Das. 15. The defendant-respondents in para No. 14 of the written statement as additional pleas have averred that after purchase of the suit property in 1926, Gaddar Mai came in adoption of Gopal Das. The statement of defendant-Chotey Lal was recorded under Order 10, Rule 2 CPC on 9.8.1961 wherein he deposed that Gaddar Mai gone in adoption before 40 years i.e. in the year 1921. However, he could not disclose the date and year of adoption. Chotey Lal in his statement recorded in February 1963 again deposed that Gaddar Mai gone in adoption before 35 years i.e. in the year 1928. Chotey Lal further deposed that he himself was present at the time of adoption and adoption ceremony was solemnised in Govindgarh. Again Chotey Lal in his statement recorded in August 1966 deposed that Gaddar Lal gone in adoption before 40 years and adoption ceremony took place in Deeg. Therefore, there is variance between the pleadings and proof and Chotey Lal defendant himself made contradictory depositions in his statements recorded on different dates. 16. Similarly, DW-5 Nannu Lal has deposed that at the time of adoption he was 10-12 years of age. Adoption ceremony took place in the year 1919-20. Likewise DW-6 Jagannath has deposed that adoption ceremony took place before 50-55 years i.e. in the year 1919-24. DW-7 Chajju Ram has admitted that he was not present at the time of adoption. The defendants were required to prove according to their pleadings in written statement that after purchase of the suit property in 1926 Gaddar Mai went in adoption to Gopal Das. From the evidence of DW-5 Nannu Mai and DW-6 Jagannath it is clear that Gaddar Mai gone in adoption prior to 1926 during the years 1919-1924. Even the defendant-Chotey Lal who claims himself to be present at the time of adoption has deposed that Gaddar Mai gone in adoption in 1921 and adoption ceremony took place at Govindgarh. From the evidence of DW-5 Nannu Mai and DW-6 Jagannath it is clear that Gaddar Mai gone in adoption prior to 1926 during the years 1919-1924. Even the defendant-Chotey Lal who claims himself to be present at the time of adoption has deposed that Gaddar Mai gone in adoption in 1921 and adoption ceremony took place at Govindgarh. The learned first appellate Court having placed reliance on the testimony of DW-5 Nannu Mai, DW-6 Jagannath and DW-7 Chajju Ram concluded that the fact of adoption of Gaddar Mal stands proved from the testimony of these witnesses. It need to be mentioned that Chajju Ram DW-7 has nowhere stated that adoption ceremony took place in his presence. Likewise Nannu Mal DW-5 and Jag Annath DW-6 have deposed that adoption took place prior to 1926. Therefore, on the basis of the oral testimony of the above witnesses it cannot be concluded that adoption of Gaddar Mal took place after 1926. If their depositions are to be taken as correct on their face value it cannot be held that adoption of Gaddar Mal was after 1926. 17. Gaddar Mal and father of the defendant-Chotey Lal mortgaged the property on 25.1.1940 vide the mortgage deed Ex.1 where in the paternity of Gaddar Mal has been mentioned as Mannu Lal. Learned first appellate Court relying upon the explanation offered by Chotey Lal in his statement recorded in August, 1966, for the first time admitted that he mortgaged the house but prior to that he showed his ignorance about mortgage of the property. In his statement recorded on 4.8.1966, he deposed in portion 'A' to S' as under:- eSaus edku eqruktk dks jgu j[kk FkkA eqjrgu us ;g dgk Fkk fd xMMjey ds nLr[r djk nks eSa rHkh edku dks jgu j[kwaxkA eq>s ml oDr esa :i;ksa dh t:jr FkhA eqjrgu dk dtkZ esjs mij pkfg;s Fkk blfy;s mldks grehuku ds fy;s mlds dgus ij xMMjey dk uke jguukesa esa fy[k fn;k FkkA 18. By his above deposition, Chotey Lal has tried to explain that it was at the insistence of mortgagee that he got the signatures of Gaddar Mal on the mortgage deed. By his above deposition, Chotey Lal has tried to explain that it was at the insistence of mortgagee that he got the signatures of Gaddar Mal on the mortgage deed. However, Chotey Lal in his statement recorded on 25.8.1966 again showed ignorance about mortgage of the property and further deposed that he is not in a position to say whether statement at portion 'A' to 'B' recorded on 4.8.1966 was correct or false. However, he clarified that today he made the correct statement. It is thus evident that the learned first appellate Court has relied upon the explanation offered by Chotey Lal to which Chotey Lal himself was not sure whether the explanation was true or false. From the admitted documents i.e. the sale deed dated 30.1.1926 Ex.2 and Mortgage Deed dated 25.11.1940 Ex.1 it is further evident that during the period from 1926 to 1940 Gaddar Mal never gone in adoption to Gopal Das. But still learned first appellate Court has placed reliance on the sale deed dated 17.11.1943 Ex.DW-2/1 wherein the paternity of Gaddar Mal has been mentioned as Gopal' Das. DW-2 Girraj Prasad has tendered the above sale deed in evidence. However, Girraj Prasad admitted that he was not present at the time of execution of the sale deed. Neither the scribe nor the attesting witnesses of the sale deed have bees examined to prove this document. Mere mention of father's name of Gaddar Mai as Gopal Das in Ex.DW-2/1, in my considered view, cannot be all be said to be a sufficient proof of adoption of Gaddar Mal. 19. In an identifieal situation, the Apex Court in Nilima Mukherjee v. Kanta Bhusan Ghosh, AIR 2001 SC 2725 held as under:- "Some documents were produced to prove the fact of adoption. Documents were produced to show that a bank account was in the joint name of late Ramesh Chand Ganguly and the appellant. Late Ramesh Chand Ganguly used to draw freedom fighters pension and a document was produced to show that in the nomination papers, the appellant was described as his daughter. These documents were duly considered by both the Courts below and rejected by giving cogent reasons. Regarding nominating the appellant to draw pension on behalf of late Ramesh Chand Ganguly, the first appellate Court has also noted that in the said paper there was no seal of the concerned authority. These documents were duly considered by both the Courts below and rejected by giving cogent reasons. Regarding nominating the appellant to draw pension on behalf of late Ramesh Chand Ganguly, the first appellate Court has also noted that in the said paper there was no seal of the concerned authority. Mere having a joint bank account would not prove adoption in absence of any other cogent evidence." 20. It must therefore, be concluded that the finding recorded by the. first appellate Court on issue No. 1 stands vitiated on wrong test and on the basis of assumptions and conjecture; in asmuch as the lower appellate Court has assumed contrary to the evidence of defendants in recording the finding as regards adoption of Gaddar Mal. 21. The result of the above discussions is that the appeal succeeds and is allowed. The impugned judgment and decree of the learned first appellate Court are set aside and the judgment and decree of the trial Court are up held. However, in the facts and circumstances of the case, parties are left to bear their own costs.Appeal allowed. *******