JUDGMENT : ANUBHA RAWAT CHOUDHARY, J. Heard the learned counsel appearing on behalf of the parties. 2. This second appeal has been filed against the judgment dated 27.01.1993 and decree dated 17.02.1993 passed by learned 1 st Additional District Judge, Dumka in Title Appeal No. 35/87/5/91 reversing the judgment dated 27 th May 1987 and decree dated 12.06.1987 passed by learned Sub-ordinate Judge-III, Jamtara in Title Suit No. 17 of 1982/130 of 1986. 3. This appeal was admitted for final hearing vide order dated 09.03.1994 on the following substantial questions of law: “Whether the finding of the learned appellate court is vitiated for making out a third case beyond the pleadings of the parties and the reasons assigned by the appellate court in reversing the judgment of the trial court are not tenable in law.” 4. Learned counsel for the appellant, while giving the background of the case, has submitted that the suit was originally filed by Patu Bala Dasi claiming half share of the suit property. However, during the pendency of the case, she expired and Ajoy Bhandari was substituted as adopted son. The adoption was by way of registered deed of adoption dated 21.10.1981 (Exhibit-2) which was prior to filing of the suit and the suit was filed in the year 1982. 5. Learned counsel for the appellant has further submitted that before the learned trial court, a plea was raised that Patu Bala Dasi was not the legally married wife of Gurupada Alias Mangal Bhandari and therefore, the adopted son also did not acquire any right over the suit property. He has submitted that the registered deed of adoption was also challenged. He has further submitted that the learned trial court framed the following issues for consideration: “1. Is the suit as framed maintainable? 2. Has the plaintiff got any valid cause of action for the suit? 3. Was Patu Bala Dasi or Nomita Bhandarin legally married wife of Mangal Bhandari? 4. Is Ajoy Bhandari legally adopted son of Patu Bala Dasi? 5. Is there unity of title and possession between the parties over the suit lands? 6. Is the plaintiff entitled to ½ share in the suit properties? 7. To what other relief, if any, is the plaintiff entitled?” 6. Issue no. 1 was not pressed and the learned trial court found no defect in the frame of the suit. 5. Is there unity of title and possession between the parties over the suit lands? 6. Is the plaintiff entitled to ½ share in the suit properties? 7. To what other relief, if any, is the plaintiff entitled?” 6. Issue no. 1 was not pressed and the learned trial court found no defect in the frame of the suit. All other issues, as framed by the learned trial court, were decided in favour of the plaintiff by holding that Ajoy Bhandari (the substituted plaintiff) was entitled to half share in the properties described in Schedule A, B and C of the plaint. 7. The learned counsel submits that the finding with regard to the marriage of Patu Bala Dasi with Mangal Bhandari has been recorded in paragraphs 4 and 5 of the trial court’s judgment and the ultimate finding is recorded in paragraph 8. The defendants failed to prove that Nomita was the wife of Mangal Bhandari and there was enough evidence on record to show that Patu Bala Dasi and Mangal Bhandari were living as husband and wife. He further submits that the witnesses who had seen the marriage were P.W. 9, 10 and 11 and P.W. 11 was the son of the priest who had performed the marriage of Patu Bala Dasi with Mangal Bhandari. The learned counsel submits that the trial court decreed the suit in favour of the plaintiff. 8. So far as the learned 1 st appellate court is concerned, the same issues were considered and even the learned 1 st appellate court did not record any finding that Nomita was the legally married wife of Mangal Bhandari. However, the learned 1 st appellate court rejected the evidence of P.Ws. 6, 8, 9 and 10 by observing that they are interested witnesses. The learned counsel for the appellant submits that the learned 1 st appellate court has recorded the submissions with regard to P.W. 11 also, but while giving the finding there is no discussion of the evidence of P.W. 11 and the learned Court has also observed that no evidence was led by the plaintiff to show that any religious or customary usage was performed. The learned court also recorded that merely because two persons are living as husband and wife, that was not a sufficient requirement of law and further observed that just living together will not accord the status of wife. 9. The learned court also recorded that merely because two persons are living as husband and wife, that was not a sufficient requirement of law and further observed that just living together will not accord the status of wife. 9. The learned counsel has also submitted that so far as the adoption is concerned, the adoption was held to be valid by the learned 1 st appellate court except to the extent of description in the adoption deed that Patu Bala Dasi was wife of Mangal Bhandari. The learned counsel has submitted that the learned 1 st appellate court has committed illegality to the extent of perversity in not considering the evidence of P.W. 11 and also the consistent evidence on record that Patu Bala Dasi and Mangal Bhandari were living as husband and wife. He has also submitted that the evidences of close relatives have been discarded by the learned 1 st appellate court merely by saying that they are highly interested witnesses. 10. The learned counsel has also submitted that the learned trial court, while coming to a finding that Patu Bala Dasi was living at the house of Mangal Bhandari as his wife, had also referred to the judgment of the Hon'ble Supreme Court reported in AIR 1978 SC 1557 wherein it was held that if a man and woman have been living as husband and wife for about 50 years, a strong presumption of valid marriage arises. The learned counsel has submitted that the learned trial court had considered the materials on record to hold that if man and woman are living together as husband and wife for a long time, there is a presumption that they were legally married. The learned counsel has submitted that although the defendants claimed that Nomita was the legally married wife of Mangal Bhandari and she was still alive, but no steps were taken to examine her and no attempts were made on behalf of the contesting defendants to bring her to the witness box in support of their case that she was the legally married wife of Mangal Bhandari. He has also submitted that the learned trial court also referred to evidence of D.W. 9 (paragraph 5). He has also submitted that the learned trial court also referred to evidence of D.W. 9 (paragraph 5). He submits that the learned trial court had rejected the plea of marriage of Mangal Bhandari with Nomita and ultimately, held that Patu Bala was the legally married wife, but these aspects of the matter have not been considered by the learned 1 st appellate court. 11. So far as the 1 st part of the substantial question of law i.e., as to whether the learned 1 st appellate court has made out a 3 rd case beyond the pleadings, is concerned, the learned counsel for the appellant has submitted that he has nothing to say in this connection. He submits that the point regarding adoption of Ajoy Bhandari and marriage of Patu Bala Dasi with Mangal Bhandari were directly in issue and were rightly entered into by the courts. However, he submits that the learned 1 st appellate court has committed perversity in reversing the judgment passed by the learned trial court and therefore, the reasons assigned by learned 1 st appellate court are not tenable in the eyes of law. 12. Learned counsel for the respondents, on the other hand, has submitted that the learned 1 st appellate court has considered the fact that the learned trial court had heavily relied upon the voter list which was prepared after filing of the suit. He submits that the learned 1 st appellate court has considered the materials on record while reversing the finding of the learned trial court with regard to marriage of Patu Bala Dasi with Gurupada @ Mangal Bhandari and the finding of fact recorded by the learned 1 st appellate court neither suffers from any illegality nor suffers from any perversity and therefore, the finding of the learned 1 st appellate court does not call for any interference. Findings of this Court 13. After hearing the learned counsel for the parties, this Court finds that a suit for partition was filed on 04.06.1982 by the original plaintiff namely, Patu Bala Dasi seeking half share in the suit property. However, Patu Bala Dasi died during the pendency of the case on 02.06.1984 and Ajoy Bhandari was substituted in her place vide order dated 10.02.1986. After hearing the learned counsel for the parties, this Court finds that a suit for partition was filed on 04.06.1982 by the original plaintiff namely, Patu Bala Dasi seeking half share in the suit property. However, Patu Bala Dasi died during the pendency of the case on 02.06.1984 and Ajoy Bhandari was substituted in her place vide order dated 10.02.1986. The case of the original plaintiff was that parties are governed by Dayabhaga School of Hindu Law; one Radha Raman Bhandari was recorded tenant of the suit property who died sometimes in the year 1946 leaving behind two sons namely, Haradhan Bhandari and Gurupada Bhandari as his heirs. Wife of Radha Raman Bhandari predeceased him; after death of Radha Raman Bhandari his sons came in possession of the property jointly and continued to be so till the death of Gurupada Alias Mangal Bhandari in the year 1981. 14. The specific case of the plaintiff was that Mangal Bhandari died leaving behind his wife Patu Bala Dasi who claimed to be the legally married wife of Mangal Bhandari and claimed to have been living as his wife. After death of Mangal Bhandari, she had adopted Ajoy Bhandari in October, 1981 after completing all the necessary formalities and a registered deed of adoption was executed. The adoption was done on 21.10.1981. The original plaintiff claimed that Haradhan Bhandari started creating disturbances and consequently, she demanded partition and ultimately, filed the suit and after her death, her adopted son Ajoy Bhandari was substituted. 15. The original defendant Haradhan Bhandari also died during the pendency of the suit and his heirs were substituted vide order dated 10.08.1983. The substituted defendant Kinkar Bhandari filed his written statement and other defendants did not file written statement. 16. The main case of the defendants was that Patu Bala Dasi was not legally married wife of Mangal Bhandari and she all along lived at her father’s place in village Meghia. She was afflicted with Leprosy since childhood. It was their further case that Mangal Bhandari was married with one Nomita Bhandarin, daughter of Mohan Bhandari about 25 years ago and Nomita was living with Mangal Bhandari as his wife and after some time, Mangal Bhandari became lunatic and attacked by Leprosy. Nomita Bhandarin left her husband’s place soon thereafter. She was afflicted with Leprosy since childhood. It was their further case that Mangal Bhandari was married with one Nomita Bhandarin, daughter of Mohan Bhandari about 25 years ago and Nomita was living with Mangal Bhandari as his wife and after some time, Mangal Bhandari became lunatic and attacked by Leprosy. Nomita Bhandarin left her husband’s place soon thereafter. It was their further case that Mangal Bhandari was receiving treatment of Leprosy where he met Patu Bala Dasi who also used to receive treatment of Leprosy and it was their further case that one Suphal Bhandari brought Patu Bala Dasi in his collusion and got a sham deed of adoption in existence only in order to grab the land of Mangal Bhandari and that Patu Bala Dasi is sister of one Ganesh Bhandari who is son-in-law of Suphal Bhandari.. 17. The issues framed and considered by the learned trial court as well as considered by the learned 1 st appellate court were one and the same and the issues framed by the learned trial court have already been quoted above. 18. The learned trial court held the deed of adoption valid. It also held that the defendants had failed to prove that Nomita was the legally wedded wife of Gurupada Bhandari @ Mangal Bhandari and further held that Patu Bala Dasi was the legally married wife of Mangal Bhandari. 19. So far as the learned 1 st appellate court is concerned, on the point of adoption, the learned 1 st appellate court held that the adoption was valid only to the extent that Patu Bala Dasi had adopted Ajoy Bhandari in her own capacity and not as a wife of Mangal Bhandari. So far as marriage with Nomita is concerned, the learned 1 st appellate court also did not record any finding that she was the legally wedded wife of Mangal Bhandari. However, the plea of marriage of Patu Bala Dasi with Mangal Bhandari was disbelieved by the learned 1 st appellate court by recording that P.Ws. 6, 8, 9 and 10 were all interested witnesses. P.W. 6 is the brother of Patu Bala Dasi, P.W. 8 is the nephew of Suphal, P.W. 9 is mother of Patu Bala Dasi and P.W. 10 is natural father of the adopted son Ajoy Bhandari who had supported the marriage and also the adoption. 6, 8, 9 and 10 were all interested witnesses. P.W. 6 is the brother of Patu Bala Dasi, P.W. 8 is the nephew of Suphal, P.W. 9 is mother of Patu Bala Dasi and P.W. 10 is natural father of the adopted son Ajoy Bhandari who had supported the marriage and also the adoption. So far as P.W. 11 is concerned, the learned 1 st appellate court has recorded that P.W. 11 is one Kashinath Pandey. He has stated that he is the priest by profession and his father was a priest in the marriage of Patu Bala Dasi and Mangal Bhandari and he claims to have attended the marriage. This witness, though recorded, has not been considered by the learned 1 st appellate court. 20. This Court finds that the learned trial court has considered the eye witnesses of the marriage in paragraph 4 of the trial court’s judgment which is quoted as under: “4. The plaintiff has examined P.Ws. 9, 10 and 11 who have deposed as eye witnesses on the point of marriage of Patubala Dasi with Mangal Bhandari. P.W. 9 is the mother of Patu Bala Dasi and she has come to say that Patu Bala was married with Mangal Bhandari when she was aged about 11 years. Thereafter, she lived with her husband as his legally married wife. She has emphatically denied that Mangal was married with Nomita Bhandarin. P.W. 10 is Suphal Bhandari who is resident of village Bhogikata where Mangal Bhandari lived. He has also said in para 6 of his deposition that about 20-30 years ago Mangal Bhandari was married in his presence with Patubala Dasi of village Manjhia. He has further said that Thakur was prohit in the aforesaid marriage, but he is dead. P.W. 11 is Kashinath Pandey of village Budhudih. He has been examined to say that his father Surendra Nath Pandey was the priest of village Manjhia and he performed the marriage of Patu Bala Dasi with “Mangal Bhandari”. He has also said that he was present with his father at the time of the performance of marriage. All the three witnesses have been cross-examined at length, but their evidence on the point of marriage has not been successfully shaken in the cross-examination. Ext. 4 is the C.C. of voter list of 1983 in which Patu Bala has been shown as wife of Mangal.” 21. All the three witnesses have been cross-examined at length, but their evidence on the point of marriage has not been successfully shaken in the cross-examination. Ext. 4 is the C.C. of voter list of 1983 in which Patu Bala has been shown as wife of Mangal.” 21. Thus, the learned trial court has considered the evidence of P.W. 9, 10 and 11, who were the eye-witnesses to the marriage and has recorded that all the three witnesses were cross-examined at length, but their evidence on the point of marriage has not been successfully shaken in the cross-examination. The learned trial court also considered the evidence of P.Ws. 1, 2, 3, 5, 6 and 8 who had deposed that Patu Bala Dasi and Mangal Bhandari were living as husband and wife. The evidence of the witnesses was discussed right from paragraph 6 and it was ultimately recorded by the learned trial court that the entire evidence adduced on behalf of the contesting defendants was in support of their case that Mangal Bhandari was married with Nomita Bhandarin. The learned trial court ultimately held that Nomita was not the legally wedded wife of Mangal Bhandari. 22. The learned trial court while considering the point of marriage, had not only referred to the name of Patu Bala Dasi in the voter list as wife of Mangal Bhandari but also considered the eye-witnesses to the marriage, the witnesses who had seen Patu Bala Dasi and Mangal Bhandari living together as husband and wife to hold that Patu Bala Dasi was the legally married wife of Mangal Bhandari and the defendants failed to prove that Nomita Bhandarin was married to Mangal Bhandari at any point of time. 23. The learned 1 st appellate court, while considering the trial court’s judgment, has observed and agreed with the submission of the counsel for the defendants that much reliance was placed by the learned trial court on the voter list which was prepared after filing of the suit. 23. The learned 1 st appellate court, while considering the trial court’s judgment, has observed and agreed with the submission of the counsel for the defendants that much reliance was placed by the learned trial court on the voter list which was prepared after filing of the suit. However, the aforesaid finding is not correct in view of the fact that the perusal of the judgment passed by the learned trial court reveals that the finding regarding marriage of Mangal Bhandari with Patu Bala Dasi was primarily based on the oral evidences adduced on behalf of the plaintiff as recorded in paragraphs 4 and 5 of the trial court’s judgment and the evidence of the defendants were recorded and considered in paragraphs 6 and 7. The learned 1 st appellate court has completely ignored the evidence of P.W. 11 who was an independent witness and it was his father who had performed the marriage and who was also eye-witness to the marriage. 24. While considering the point regarding presumption of marriage on the ground that the man and woman have been living as husband and wife, the learned 1 st appellate court was of the view that mere living together did not help the plaintiff in any manner as no evidence regarding performance of customary usage was led to prove the marriage and the learned 1 st appellate court also recorded that “a man may maintain a kept or mistress but she cannot acquire a status of wife”. It was nobody’s case that Patu Bala Dasi was just living with Mangal Bhandari as a kept or mistress. 25. This Court finds that the learned 1 st appellate court has committed perversity in coming to a finding that Patu Bala Dasi was not the married wife of Mangal Bhandari and has not even met with the reasons given by the learned trial court in an appropriate manner and has completely ignored the evidence of P.W. 11 – an independent witness whose father had performed the marriage and P.W-11 was also eye-witness to the marriage. Consequently, the finding of the learned 1 st appellate court that the deed of adoption though valid, was only in her own capacity of Patu Bala Dasi and not as a wife of Mangal Bhandari, is also incorrect. Consequently, the finding of the learned 1 st appellate court that the deed of adoption though valid, was only in her own capacity of Patu Bala Dasi and not as a wife of Mangal Bhandari, is also incorrect. The substantial question of law is accordingly answered by holding that the 1 st appellate court had not made out a third case. However, the 1 st appellate court has committed perversity in reversing the judgment of the trial court and accordingly the judgment of the 1 st appellate court is not tenable in law. 26. Accordingly, the judgment passed by the learned 1 st appellate court is hereby set-aside and the finding as well as the judgment passed by the learned trial court is upheld. 27. This second appeal is hereby allowed. 28. Pending interlocutory application, if any, is closed.