JUDGMENT Dharam Chand Chaudhary, J. Appellant-defendant No.1, Bali Bahadur in the trial Court, being aggrieved by the judgment and decree dated 31.7.2002, passed by learned District Judge, Chamba, in Civil Appeal No.26 of 2001, thereby dismissing the appeal and affirming the judgment and decree dated 31.3.2001, passed by learned Sub Judge, Chamba, in Civil Suit No.267 of 1997, is in second appeal before this Court. 2. The subject matter of dispute in the present lis is the share of one Naranjan in the suit land entered in Khata/Khatauni No.45/50, measuring 3 bighas 19 biswas and Khata/Khatauni No.47/52 to 54, measuring 19 bighas 9 biswas, situated in Mohal Chhajoth, Pargana Loh Tikkri, Tehsil Churah, District Chamba. The suit land to the extent of the share of aforesaid Naranjan on his death has been mutated in the name of the first respondent (plaintiff in the trial Court), who claims herself to be his daughter and defendant No.1 Bali Bahadur allegedly an adopted son of deceased Naranjan vide mutation No.237 dated 3.5.1997, Ext.P-3/Ext.D-5. The respondent-plaintiff claims herself to be sole legal representative of deceased Naranjan, as according to her, defendant Bali Bahadur was never adopted son by her deceased father, Naranjan. He allegedly managed the attestation and sanction of mutation No.237 with regard to the suit land to the extent of half share in connivance with revenue staff. 3. It is when on the basis of such false mutation, he started causing interference in the suit land and even on 6.6.1997 threatened to raise construction over a portion of it, she came to know about the sanction of mutation No.237 in an illegal manner and, therefore, requested the defendant-appellant not to interfere in the suit land nor raise any construction thereon, but of no avail, hence the suit for declaration that mutation No.237 attested and sanctioned on 3.5.1997 being wrong, incorrect and illegal, is null and void, having no binding force on her and also for permanent prohibitory injunction restraining defendant No.1 from causing any interference or raising any construction over the suit land. 4. It is only defendant Bali Bahadur, who on his service in the suit, opted for putting in appearance and contested the same. 4. It is only defendant Bali Bahadur, who on his service in the suit, opted for putting in appearance and contested the same. In the written statement and counter-claim he has raised preliminary objections qua maintainability of the suit, locus-standi of the plaintiff and also that she by her own act and conduct is estopped from filing the present suit. On merits, he has denied the entire case as set out in the plaint being wrong and submitted that deceased Naranjan was issueless and he adopted him (defendant No.1), as his son in his childhood. 5. In replication, the plaintiff has denied the contents of preliminary objections being wrong and reiterated her case as set out in the plaint. 6. The pleadings so come on record have resulted in framing of following issues in the trial Court: (1) Whether the plaintiff is the daughter of late Sh. Naranjan as alleged? If so, its effect? OPP. (2) Whether mutation No.237 is wrong and illegal as alleged? OP Parties. (3) Whether defendant No.1 is the adopted son of late Shri Naranjan as alleged? If so, its effect? OPD. (4) Whether the plaintiff has a cause of action? OPP. (5) Whether the suit is not maintainable in the present form? OPD. (6) Whether the plaintiff has locus-standi to sue? OPP. (7) Whether the plaintiff is estoped from fling the present suit by her act and conduct? OPD. (8) Whether the defendant has a cause of action for the counter claim? OPD. (9) Whether the defendant is estopped from filing the counter claim? OPP. (10) Whether the counter claim of the defendant is not maintainable? OPP. (11) Relief. 7. The parties were put to trial. The plaintiff in turn has herself stepped in the witness box as PW-1 and examined Shri Ganga Ram, PW-2 and Shri Razaq Deen, PW-3. She has also examined Shri Doom, PW-4 in rebuttal. She has also placed reliance on the documentary evidence, i.e., Jamabandi for the year 1992-93, Ext.P-1, again Jamabandi for the year 1992- 93, Ext.P-2 and copy of mutation No.237 Ext.P-3. 8. The appellant-defendant on the other hand, has himself stepped in the witness box as DW-1 and also examined Shri Dilo, DW-2 and Shri Gurdiala, DW-3. She has also placed reliance on the documentary evidence, i.e., Jamabandi for the year 1992-93, Ext.P-1, again Jamabandi for the year 1992- 93, Ext.P-2 and copy of mutation No.237 Ext.P-3. 8. The appellant-defendant on the other hand, has himself stepped in the witness box as DW-1 and also examined Shri Dilo, DW-2 and Shri Gurdiala, DW-3. The defendant has also placed reliance on the documentary evidence, i.e., Jamabandi for the year 1992-93, Exts.D-1 and D-2, copy of Shajra Nasaf, Ext.D-3, copy of Pariwar register Ext.D-4, copy of mutation No.237, Ext.D-5 and another copy of Pariwar register Ext.D-6. 9. Learned trial Court, on analyzing the evidence available on record, has arrived at a conclusion that the plaintiff is the only daughter of deceased Naranjan and that the appellant-defendant is not proved to be his adopted son. Therefore, while answering issue No.1 in favour of the plaintiff, whereas issue No.3 against the defendant, mutation No.237 of the suit land has been held null and void and not binding on the plaintiff. Remaining issues No.4 to 10 have also been answered in favour of the plaintiff and against the defendant. The suit, therefore, has been decreed, whereas the Cross- Objections dismissed, vide judgment and decree dated 31.3.2001. 10. In appeal, learned lower appellate Court has upheld the judgment and decree passed by learned trial Court and dismissed the same vide judgment and decree impugned before this Court in the present appeal, on the grounds inter alia that the findings to the effect that the defendant is not proved to be the adopted son of deceased Naranajan recorded by both the Courts below, are contrary to oral as well as documentary evidence available on record, hence erroneous and not legally sustainable. A reference in this behalf has been made to the documentary evidence, i.e., copy of Pariwar register Ext.D-4 and order of mutation Ext.D-5 and another copy of Pariwar register Ext.D-6. Entries in the revenue record such as Jamabandi for the year 1992-93 Exts.D- 1 and D-2 and copy of Shajra Nasaf Ext.D-3 have also been relied upon. The factum of PW-3 having admitted the defendant adopted by deceased Naranjan, has also been highlighted. The evidence that when defendant No.1 was adopted as son by deceased Naranjan, he had no issue and that as per copy of Pariwar register Ext.D-6, the defendant is the son of one Alam Ram, has erroneously been ignored. The factum of PW-3 having admitted the defendant adopted by deceased Naranjan, has also been highlighted. The evidence that when defendant No.1 was adopted as son by deceased Naranjan, he had no issue and that as per copy of Pariwar register Ext.D-6, the defendant is the son of one Alam Ram, has erroneously been ignored. The testimony of DW-2 Shri Dilo Ram, who allegedly not proved the adoption of the appellant-defendant by deceased Naranjan to depose qua performance of ceremonies of adoption, is also stated to be erroneously ignored. The factum of adoption having taken place within the same Gotra, therefore, no formal ceremonies for adoption were required to be performed, is also ignored. Learned lower appellate Court also erred in not appreciating that the adoption having taken place more than 40 years ago from the date of institution of the suit and that the defendant was adopted by none else but his real uncle in its right perspective. Both Courts below also stated to have ignored the fact that defendant No.1 was known by each and everyone being the adopted son of deceased Naranjan and there had been total acquiescence of the adoption coupled with the factum that it was practically impossible to prove the solemnization of essential ceremonies of adoption after the lapse of more than 40 years, the suit could not have been decreed against him. The recognition of the defendant as adopted son of deceased Naranjan for such a long time has resulted in a strong presumption qua the validity of the adoption and as such this aspect should have been appreciated by both Courts below in its right perspective. Otherwise also, without arriving at a conclusion as to at what time the adoption having taken place the provisions contained under the Hindu Adoption and Maintenance Act, 1956 (hereinafter referred to as ‘the Act’), could have not been applied in this case. 11. The appeal has been admitted on the following substantial questions of law: (1) Whether the learned courts below completely ignored the fact that in the case of Hindus long recognition as an adopted son, raised even stronger presumption in favour of the validity of appellant-adoption? (2) Whether the learned Courts below have misread, misinterpreted the oral and documentary evidence particulars Ext.D-1, D-4, D-4 and D-6, wherein the appellant had been shown as the adopted son of Naranjan? 12. (2) Whether the learned Courts below have misread, misinterpreted the oral and documentary evidence particulars Ext.D-1, D-4, D-4 and D-6, wherein the appellant had been shown as the adopted son of Naranjan? 12. Both substantial questions of law can be taken-up for adjudication together. 13. It is seen that in the opinion of both Courts below since the adoption of the defendant by deceased Naranjan is found to be not proved in accordance with provisions contained under the Act, therefore, it is this aspect of the matter which weighed with both Courts below and as a result thereof while the trial Court has decreed the suit, learned lower appellate Court has affirmed the decree so passed by the trial Court. 14. It is well settled at this stage that the concurrent findings recorded by both the Courts below on appreciation of evidence should not normally be interfered with by the High Court in second appeal unless and until, perverse and recorded in utter disregard of the evidence by misconstruing and mis-appreciating the same. 15. Learned lower appellate Court on reappraisal of the evidence available on record, has arrived at a conclusion that the ceremonies with regard to giving defendant No.1 in adoption by his father Tokha and receiving him as adopted son by deceased Naranjan, as required under the provisions of the Act, have not been proved and as such he cannot be held to be the adopted son of deceased Naranjan. 16. Admittedly, the parties are Hindu by religion. They, therefore, are governed by the provisions of the Act. Section 4 of the Act provides that any custom or usage in force immediately before the commencement of the Act shall cease to have any effect with respect to any matter governed under the provisions thereof. Section 5 provides that no adoption shall take place after commencement of the Act by or to a Hindu except as provided under Chapter-2 of the Act, therefore, an adoption if void, shall not create any right in the adopted family. Section 11 of the Act provides for other conditions, such as the adoption can only be in respect of a son by the adopted father or mother Hindu by religion. It is sub-section (i) below Section 11, which is relevant in this case, as the defendant has allegedly been adopted as son by deceased Naranjan. 17. Section 11 of the Act provides for other conditions, such as the adoption can only be in respect of a son by the adopted father or mother Hindu by religion. It is sub-section (i) below Section 11, which is relevant in this case, as the defendant has allegedly been adopted as son by deceased Naranjan. 17. Now coming to the law cited at the bar, in a case where there is challenge to adoption after long lapse of years, the burden rests heavily on one who challenges the validity of adoption. We can draw support in this behalf from a judgment of Andhra Pradesh High Court in Pabbathi Reddy Sudarshan Reddy v. Pabbathi Reddy Sashirekhamma, AIR 1996 A.P.300, relevant portion of which reads as under: “….It is undoubtedly true that strict proof is necessary to prove adoption as adoption, if proved, displaces the natural line of succession. Adoption to be proved necessitates the establishment of the ingredients of adoption, but, as has been observed by Mulla in Sixteenth Edition, Article 512, summarizing the decisions of Courts, that where there is a lapse of a very long period between the adoption and its being questioned, every allowance for the absence of evidence to prove such fact must be favourably entertained and that it stands to reason that after a very long terms of years, and a variety of transactions of open life and conduct upon the footing that the adoption was a valid act, the burden must rest heavily upon him who challenges its validity.” 18. It is seen that in the judgment ibid in similar facts and circumstances the findings that the adoption has not been proved from the evidence on record were reversed while taking note of the fact that the adoption having been challenged after a long lapse of time the strict proof qua solemnization of ceremonies would have not sought for. Similar is view of the matter taken by Privy Council in Sri Kanchumarthi Venkata Seetharama Chandra Row v. Kanchumarthi Raju alias Venkata Krishna Row and others, 1925 Privy Council 201. 19. In Parmanand v. Laxminarain, AIR 1955 Madhya Bharat 219, while placing reliance on the case law, particularly in Pannalal v. Chiman Parkas, AIR 1947 Lahore 54, it was held as under: “In respect of an old adoption strict proof the performance of the ceremonies cannot be demanded. 19. In Parmanand v. Laxminarain, AIR 1955 Madhya Bharat 219, while placing reliance on the case law, particularly in Pannalal v. Chiman Parkas, AIR 1947 Lahore 54, it was held as under: “In respect of an old adoption strict proof the performance of the ceremonies cannot be demanded. An adoption acquiesced in and recognized for a number of years by the person making the adoption, and a long course of recognition on the part of that person and by the brotherhood, who were best acquainted with the circumstances, gives rise to the inference that the conditions relating to the adoption were fulfilled.” 20. In Baburao Marutrao Mane and others v. Ramchandra Balasahed Mane and others, AIR 2005 Bombay 375, a case where in the revenue record name of an adopted son was allowed to stand for 40 years coupled with the facts of the adoption deed executed in accordance with law in existence at the relevant time, the High Court refused to interfere with the view taken by the trial Court and also lower appellate Court and dismissed the appeal. Para 15 of the judgment reads as under: “In view of the aforesaid facts, all the contentions raised by Mr. Godbole for the appellants about legality and validity of adoption are required to be answered in the negative. The conduct of the appellants for a period of 40 years strongly goes against their case. Not even a single notice was issued by any of them from 1947 till 1986-87 challenging the adoption or questioning the adoption or questioning the status of Ramchandra or assertion of his right in the property of Krishnabai. The challenge is, therefore, only for the sake of challenge and to deprive the respondent/ Ramchandra of the rights which he had enjoyed and he was enjoying in the property since 1947. Both the Courts below, therefore, upon considering the facts; scanning the evidence and scrutinising the record rightly rejected that contention. No interference is, therefore, called for so far as this aspect of the matter is concerned.” 21. The parties on both sides have placed reliance on the Jamabandi pertaining to the suit land for the year 1992-93, Exts.P-1, P-2/Exts.D-1 and D-2. In Ext.P-1/Ext.D-1, defendant-appellant has been shown as “Dharam Putar” (adopted son) of deceased Naranjan. No interference is, therefore, called for so far as this aspect of the matter is concerned.” 21. The parties on both sides have placed reliance on the Jamabandi pertaining to the suit land for the year 1992-93, Exts.P-1, P-2/Exts.D-1 and D-2. In Ext.P-1/Ext.D-1, defendant-appellant has been shown as “Dharam Putar” (adopted son) of deceased Naranjan. In remarks column of these documents, he has been shown to have succeeded to the suit land in the share of deceased Naranjan to the extent of half share with plaintiff-respondent, as per mutation Ext.P-3/Ext.D-5, attested and sanctioned by the revenue agency. The order of mutation Ext.P-3/Ext.D-5 makes it crystal clear that not only defendant No.1, but the respondent-plaintiff was also present at the time of attestation and sanction of mutation. The order so passed by the Revenue Officer was in the rank of Assistant Collector during the course of his official duties as an official act and as such a presumption envisaged under Section 114(e) of the Indian Evidence Act attached to it, therefore, the plaintiff who was present at the time of attestation of the mutation cannot be allowed to turn around and claim that defendant No.1 is not an adopted son of deceased Naranjan. A reference can also be made to the copy of Shajra Nasaf, Ext.D-3. The same reveals that name of defendant No.1 has been reflected as “Dharam Putar” (adopted son) of deceased Naranjan. 22. Another document, viz. copy of Pariwar register, Ext.D-4, reveals that defendant No.1 has been recorded as the son of deceased Naranjan. Although Ext.D-6, the copy of Pariwar register has also been relied upon to show that the plaintiff is born to Alam, yet in view of mutation Ext.P-3/Ext.D-5 attested in her favour also in the presence of defendant No.1 being in the capacity of daughter of deceased Naranjan, defendant No.1 cannot be allowed to turn around and claim that she is not the daughter of said Shri Naranjan. Long standing revenue entries in the record discussed hereinabove, therefore, leads to the only conclusion that defendant No.1 is the adopted son of deceased Naranjan. 23. The essential ingredients of adoption are the physical acts of giving and receiving of the male issue/boy in adoption. Long standing revenue entries in the record discussed hereinabove, therefore, leads to the only conclusion that defendant No.1 is the adopted son of deceased Naranjan. 23. The essential ingredients of adoption are the physical acts of giving and receiving of the male issue/boy in adoption. The plaintiff while in the witness box as PW-1 no doubt has stated that defendant No.1 is the son of Tokha, however, never disputed that he is the adopted son of deceased Naranjan and rather tells us that she had not seen her deceased father receiving the defendant as his son in adoption. The adoption of defendant No.1 had taken place about 40 years ago, as has come in the statement of DW-2 Shri Dilo and as in view of the entries in the Pariwar register Ext.D-6 as on 13.7.1961 she was hardly of half month old, therefore, she even was not born when the adoption of defendant No.1 had taken place. When cross-examined, though she has come forward with the version that the last rites on the death of her father were performed by her, but admitted that it is defendant No.1 who had gone to Ganga Ji (Haridwar). Had appellant-defendant been not adopted son of deceased Naranjan why he should have gone to Haridwar to perform the last rites there. 24. PW-2, no doubt, states that Shri Naranjan was married to Smt. Nimmo and plaintiff was born to them out of this wedlock and that he had not seen said Shri Naranjan in adopting the defendant as his son. The fact, however, remains that he has not specifically denied the adoption of the defendant by said Shri Naranjan. If coming to the testimony of PW-3 Razaq Deen, true it is that he has also deposed that it is the plaintiff who is the only daughter of deceased Naranjan and she looked after him during his life time, however, admitted in his cross-examination that the deceased was adopted as son by Shri Naranjan. Not only has this, but PW-4 Shri Doom also admitted in his cross-examination that the defendant was adopted as son by Shri Naranjan, as his father told to him. 25. Not only has this, but PW-4 Shri Doom also admitted in his cross-examination that the defendant was adopted as son by Shri Naranjan, as his father told to him. 25. On the other hand, the defendant has supported his entire case and as regards DW-3 Shri Dilo, he has not only deposed about the adoption of the defendant by Shri Naranjan somewhere 40 years ago, but also deposed that the defendant was given in adoption by his parents and he was received by deceased Naranjan as his adopted son in his presence. The adoption ceremony, according to him, was solemnized by showering flowers. The flowers, according to him, were in token of the defendant having taken by deceased Naranjan. He admits that Smt. Nimmo was the wife of deceased Naranjan and plaintiff was born to them. Similar is the version of PW-3 Gurdiala. 26. On re-appreciation of the oral as well as documentary evidence in the manner aforesaid it is well established that no doubt, plaintiff is the daughter of deceased Naranjan, however, defendant No.1 Bali Bahadur was adopted as son by the deceased well before her birth. The giving and receiving of defendant in adoption also stands proved not only from the oral evidence but also the documentary evidence available on record. Although, strict proof as required in terms of the provisions contained under the Act discussed hereinabove qua adoption of the defendant, is not available on record, however, with the passage of time the burden to prove that he was not adopted son of deceased Naranjan was upon the plaintiff. As discussed hereinabove, she has failed to discharge such onus, therefore, how she could have succeeded in the suit. Above all, as discussed hereinabove, strict proof after long lapse of time which in the present case appears to be 40 years could have not been possibly produced. In view of the revenue record and other documentary evidence showing that the defendant is the adopted son of deceased Naranjan, the estate left behind by deceased on his death has rightly been mutated to the extent of half share in his favour alongwith respondent-plaintiff, mutation Ext.P-3/Ext.D-5 cannot be termed as null and void or not binding on the respondent-plaintiff. The same rather is a genuine document and has to be declared as such. Both Courts below, therefore, have failed to appreciate the evidence available on record in its right perspective. The same rather is a genuine document and has to be declared as such. Both Courts below, therefore, have failed to appreciate the evidence available on record in its right perspective. The evidence available on record rather has been misconstrued and mis-appreciated, which has rendered the findings recorded by both Courts below perverse, hence not legally sustainable. The judgment and decree impugned in the present appeal, therefore, deserves to be set aside and the suit dismissed. Both the above substantial questions of law are accordingly answered. 27. For all the reasons recorded hereinabove, this appeal is allowed. Consequently, the impugned judgment and decree is quashed and set aside and the suit dismissed. The parties, however, left to bear their own costs.