# Shiv Darshan Yadav v. Executive Engineer Electricity Distribution Div.-I, Faizabad

- **Citation:** (2021) 2 ILRA 935
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-02-25
- **Case number:** Second Appeal No. 13 of 2014
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiv-darshan-yadav-v-executive-engineer-electricity-distribution-div-i-faizabad-46848
- **Pages:** 20

## Headnote

A. Civil Law - Service on the basis of
fraudulent adoption - Limitation/Estoppel
- Code of Civil Procedure: Order 7 Rule
11;
Limitation
Act:
Section
17
-
"continuing wrong" refers to a single
wrongful act which causes a continuing
injury and in such case relief can be
granted even if there is a long delay.

Appellant submitted that the suit filed by the
respondent was barred by limitation because
the adoption deed was executed on 11.8.1995
and the suit was filed on 25.11.2011 whereas
on the basis of the said registered adoption
deed the appellant was appointed in dying in
harness in the year 1996 without raising any
objection. Therefore, the suit should have been
dismissed being barred by limitation under
Order 7 Rule 11. The learned trial Court, despite
a specific plea by the appellant in regard to
limitation, failed to make any issue in regard to
limitation. He had further submitted that the suit
was not maintainable on the principle of
estoppel also because once the appellant was
appointed treating the same adoption deed as
correct,
the
respondent
could
not
have
challenged validity of the same. (Para 6)
936 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 17 of the Limitation Act provides
that the period of limitation shall not
begin to run until the plaintiff or applicant
has discovered the fraud. It is not disputed
that the respondent was not a party to the
deed. Therefore it cannot be said that the fact
entitling to plaintiff to have the instrument
rescinded
was
become
known
to
respondent/plaintiff prior to the complaint made
questioning the adoption deed only because the
appellant was appointed on the basis of the
alleged adoption deed treating it as correct
because it was registered. The fact entitling the
respondent to have the instrument cancelled or
set-aside first become known to the respondent
only on or after 27.5.2011, when the complaint
was made it was found fraudulently registered
and the suit was filed on 28.11.2011, therefore
the suit was filed well within time and it was not
barred by limitation. In the present case the
appellant was appointed on the basis of
fraudulent deed and continuing and getting
salary regularly, therefore also the suit for
cancellation of the fraudulent deed cannot be
barred by limitation. (Para 16)

There is no illegality or error in the finding
recorded by the trial Court in regard to
limitation and it has not committed any illegality
or error in not framing a separate issue in
regard to limitation and trial Court has rightly
discharged the responsibility. (Para 17)

B. Hindu Adoption and Maintenance Act,
1956 - Section 16 - Registration Act -
Section 47 - Specific Relief Act, 1963 -
Section 31 - Can presumption u/s 16 be
disregarded? - In view of S. 16 it is open
for a party to attempt to disprove the deed
of adoption by initiating independent
proceedings.

In view of S. 16, whenever any document
registered under any law is produced before any
Court purporting t

## Text

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2 All. Shiv Darshan Yadav Vs. Executive Engineer Electricity Distribution Div.-I, Faizabad
935
because it is capable of removing injustice
and is expected to do so."

38. In the case of In the matter of:
Begum Shanti Tufail Ahmad Khan; 2005
(Suppl.) RD 214, relied by learned counsel
for respondent, a Coordinate Bench of this
court has held that the law of limitation is a
law of repose based on rules of estoppel. It
serves an important purpose of bringing
finality to state of affairs which have
prevailed in the knowledge of parties for
sufficiently long period of time. This court
refused to grant probate and dismissed the
case as the laches were not adequately
explained on record. However, it is not
applicable on the facts and circumstances of
present case.

39. In view of above, this court is of the
considered opinion that the First Appellate
court has failed to consider the grounds raised
by the appellants for condonation of delay in
filing the first appeal and the law applicable
on it and has rejected the application without
recording any finding in regard to the pleas
raised by the appellants and the date of
knowledge as to when they came to know
about the judgment and decree impugned in
the appeal. Therefore, the judgment and
decree passed by the Lower Appellate Court
is not sustainable in the eye of law and is
liable to be set aside. The substantial
questions of law are decided accordingly.

40. The second appeal is partly
allowed. The judgment and decree dated
07.12.2016 passed in Misc. Civil Case No.08
of 2014;Pati Rakhan Versus Smt. Chandrani
by the Additional District Judge, Court no.9,
Sitapur is hereby set aside. The lower
appellate court is directed to reconsider and
decide the case afresh in accordance with law
and the observations made here-in-above in
this judgment.

41. No orders as to costs.
----------
(2021)02ILR A935
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.02.2021

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Second Appeal No. 13 of 2014

Shiv Darshan Yadav ...Appellant
Versus
Executive Engineer Electricity Distribution
Div.-I, Faizabad ...Respondent

Counsel for the Appellant:
Mohd. Aslam Khan

Counsel for the Respondent:
B.N. Mishra

A. Civil Law - Service on the basis of
fraudulent adoption - Limitation/Estoppel
- Code of Civil Procedure: Order 7 Rule
11;
Limitation
Act:
Section
17
-
"continuing wrong" refers to a single
wrongful act which causes a continuing
injury and in such case relief can be
granted even if there is a long delay.

Appellant submitted that the suit filed by the
respondent was barred by limitation because
the adoption deed was executed on 11.8.1995
and the suit was filed on 25.11.2011 whereas
on the basis of the said registered adoption
deed the appellant was appointed in dying in
harness in the year 1996 without raising any
objection. Therefore, the suit should have been
dismissed being barred by limitation under
Order 7 Rule 11. The learned trial Court, despite
a specific plea by the appellant in regard to
limitation, failed to make any issue in regard to
limitation. He had further submitted that the suit
was not maintainable on the principle of
estoppel also because once the appellant was
appointed treating the same adoption deed as
correct,
the
respondent
could
not
have
challenged validity of the same. (Para 6)
936 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 17 of the Limitation Act provides
that the period of limitation shall not
begin to run until the plaintiff or applicant
has discovered the fraud. It is not disputed
that the respondent was not a party to the
deed. Therefore it cannot be said that the fact
entitling to plaintiff to have the instrument
rescinded
was
become
known
to
respondent/plaintiff prior to the complaint made
questioning the adoption deed only because the
appellant was appointed on the basis of the
alleged adoption deed treating it as correct
because it was registered. The fact entitling the
respondent to have the instrument cancelled or
set-aside first become known to the respondent
only on or after 27.5.2011, when the complaint
was made it was found fraudulently registered
and the suit was filed on 28.11.2011, therefore
the suit was filed well within time and it was not
barred by limitation. In the present case the
appellant was appointed on the basis of
fraudulent deed and continuing and getting
salary regularly, therefore also the suit for
cancellation of the fraudulent deed cannot be
barred by limitation. (Para 16)

There is no illegality or error in the finding
recorded by the trial Court in regard to
limitation and it has not committed any illegality
or error in not framing a separate issue in
regard to limitation and trial Court has rightly
discharged the responsibility. (Para 17)

B. Hindu Adoption and Maintenance Act,
1956 - Section 16 - Registration Act -
Section 47 - Specific Relief Act, 1963 -
Section 31 - Can presumption u/s 16 be
disregarded? - In view of S. 16 it is open
for a party to attempt to disprove the deed
of adoption by initiating independent
proceedings.

In view of S. 16, whenever any document
registered under any law is produced before any
Court purporting to record an adoption made
and the same is signed by the persons
mentioned therein, the Court shall presume that
the said adoption has been made in compliance
with the provisions of the Act, until and unless
such presumption is disproved. (Para 20)

In view of above the respondent has rightly filed
the suit for cancellation of deed of adoption in
accordance with law u/s 31 of Specific Relief
Act, 1963 after coming to know that it was
fraudulently
got
registered
because
the
respondent department has to pay the salary to
the appellant from the public exchequer on
account of appointment in dying in harness on
the basis of said fraudulent deed. Therefore, the
admission that the appellant was appointed on
the basis of the said deed being a registered
document does not debar it from challenging
the deed because it may cause serious injury to
it. Therefore it is not barred by principle of
estoppel also. (Para 21)

Section
47
of
the
Registration
Act
provides that the registered document
shall operate from the time from which it
would have commenced to operate if no
registration thereof had been required or
made and not from the time of its
registration. The alleged adoption has been
made in the year 1980, which is after 1977 and
in view of Sub-Section (2) of S. 16 by the State
amendment in Uttar Pradesh, in case of an
adoption after the first day of January 1977, no
Court in Uttar Pradesh shall accept in evidence
in proof of giving and taking of a child in
adoption
except
document
regarding
any
adoption, made and signed by the person giving
and the person taking the child in adoption, and
registered under any law for the time being in
force. Therefore the adoption in the present
case would not be valid without registered
deed of adoption and it cannot operate
from a prior date, so also the appellant does
not get any benefit from it because it's contents
does not prove valid adoption. (Para 23, 24)

C. Hindu Adoption and Maintenance Act,
1956 - Section 6, 7, 10, 11, 12 - Evidence
Act,1872 - Section 106 - Cancellation of
registered deed of adoption - A person
who
seeks
to
displace
the
natural
succession by alleging an adoption must
discharge the burden that lies upon him
by proof of the factums of adoption and its
validity by the evidence which should be
free from all suspicion of fraud. (Para 32)

Section 12 of the HAMA 1956 provides the
affects of adoption, according to which an
adopted child shall be deemed to be the child of
his or her adoptive father or mother for all
2 All. Shiv Darshan Yadav Vs. Executive Engineer Electricity Distribution Div.-I, Faizabad
937
purposes with effect from the date of adoption
and from such date all the ties of the child in
the family of his or her birth shall be deemed to
be severed and replaced by those created by
adoption in the adoptive family. (Para 34)

As such from the date of adoption the relation
of child, who has been adopted, shall be
severed from the family from which it has been
adopted. As alleged in the present case
Kanhaiya Lal has adopted the appellant in the
year 1980. Thereafter he should have got his
name recorded in the school records but it was
not done. The great emphasis was given by the
learned counsel for the appellant that in the
Pariwar Register, Relation Certificate, Report of
the Police Station and the copy of the Khatauni,
the name of the appellant has been recorded as
an heir of Kanhaiya Lal, therefore, the adoption
was valid. But the same has been recorded after
execution of registered adoption deed and till
the date of registration of adoption deed, the
name of the appellant was shown in the family
of his natural father Ram Kishore. So the
appellant is not entitled for any benefit of the
said documents unless and until the adoption is
held valid in accordance with law. (Para 34)

Section 11(6) provides that a child adopted must
be actually given and adopted by the parents or
guardian concerned or under their authority with
intent to transfer the child from the family of its
birth to the family of its adoption. But the
appellant has failed to prove that he was adopted
in his childhood. (Para 35)

The question arises as to whether the
adoption deed was validly registered or not.
S. 7 provides that any male Hindu, who is of sound
mind and is not a minor, has the capacity to take a
son or a daughter in adoption. It could not be
proved that Kanhaiya lal was in fit condition to give
free consent and execute the deed and both i.e.
adoptive father and natural father did not even
know the contents of the deed so it has wrongly
been mentioned in the deed that this adoption
deed has been written after hearing and
understanding. Therefore, the appellant is not
entitled
for
presumption
available
to
registered deed of adoption. (Para 36)

D. Civil Procedure Code, 1908 - Order 41
Rule 31 - It is well-settled that the first
appellate Court shall state the points for
determination, the decision thereon and the
reasons for decision. However, it is equally
well-settled that mere omission to frame
point/points for determination does not
vitiate the judgment of the first appellate
Court. (Para 38)

The judgment of the appellate Court must reflect
its conscious application of mind and record
findings supported by reasons on all the issues
arising alongwith the contentions put forth, and
pressed by the parties for decision of the appellate
Court. The appellate Court agreeing with the view
of the trial Court need not restate the effect of the
evidence or reiterate the reasons given by the trial
Court; expression of general agreement with
reasons given by the Court, decision of which is
under appeal, would ordinarily suffice. (Para 40,
43)

The judgment of the first appellate Court should
be in conformity with the Order-41 Rule-31 of
C.P.C. and reflect the conscious application of
mind on the issues involved in the case but the
same cannot be vitiated merely because the
point
of
determinations
have
not
been
specifically stated. (Para 48)

Thus this Court is of the considered opinion that
there is no illegality or error in the judgment
and order passed by the appellate Court by
which the judgment of trial Court has been
confirmed and it does not vitiate merely
because the points of determination have not
been stated though it has disclosed the issues
considered by it as discussed above. The
findings recorded by the Courts below and the
conclusion that the alleged adoption deed dated
11.8.1995 is not valid and the respondent is
able to get it cancelled, does not suffer from
any illegality or error. Learned counsel for the
appellant has also failed to demonstrate in any
manner that the judgment and decree passed
by the appellate Court is not sustainable on
merit therefore merely on technical grounds,
although that also does not subsist as discussed
above, it cannot be reversed or remanded in
view of S. 99 of C.P.C. (Para 49)

Second appeal dismissed.(E-3)

Precedent cited:
938 INDIAN LAW REPORTS ALLAHABAD SERIES
1. U. Manjunath Rao Vs Chandrashekhar & anr.,
2017 SCC Online SC 865 (Para 10, 42)

2. Kanailal & ors. Vs Ram Chandra Singh & ors. ,
2017 SCC Online SC 1009 (Para 10, 39)

3. C. Venkata Swamy Vs H.N. Shivanna (D) by
Lrs. & anr., (2018) 1 SCC 604 (Para 10, 43)

4. Laliteshwar Prasad Singh & ors. Vs S.P.
Srivastava (D) through Lrs., (2017) 2 SCC 415
(Para 10)

5. Malluru Mallappa (D) through LRs. Vs
Kuruvathappa & ors., (2020) 4 SCC 313 (Para
10, 13, 40)

6. Santosh Hazari Vs Purushottam Tiwari (D) by
Lrs., (2001) 3 SCC 179 (Para 10)

7. Shashidhar & ors. Vs Ashwani Uma Mathad &
anr., (2015) 11 SCC 269 (Para 10)

8. Shiv Singh Rana Vs Deputy Registrar & ors.
2000 (18) LCD 1211 (Para 10)

9. Committee of Management Vs Deputy
Director of Education, 2006 (24) LCD 1328 (Para
10)

10. Vinod Kumar Vs Gangadhar, (2015) 1 SCC
391 (Para 10)

11. Gram Sabha Kaunai Vs Deputy Director
of Consolidation, 2009 (27) LCD 1118 (Para
10)

12. Ayodhya Prasad Tewari Vs Ramesh Chandra
& ors. , 2012 (30) LCD 575 (Para 10)

13. Amar Singh Vs Tej Ram & anr., AIR 1982
Punj. & Har. 282 (Para 10)

14. Sushil Chandra Vs Smt. Bhoop Kunwar &
ors. , AIR 1977 Allahabad 441 (Para 10)

15. Md. Aftabuddin Khan & ors. Vs Smt.
Chandan Bilasini & anr., AIR 1977 Orissa 69
(Para 10, 32)

16. Gurrella Durga Vara Prasad Rao Vs Indukuri
Ram Raju, 2002 (Supp. 2) ALD 757 (Para 13,
45)
17. U.O.I. & ors. Vs Tarsem Singh, 2008 (8)
SCC 648 (Para 13, 16)

18. Mst. Deu & ors. Vs Laxmi Narayan & ors.,
(1998) 8 SCC 701 (Para 20)

19. Laxmibai (Dead) through LRs. & anr. Vs
Bhagwantbuva (Dead) through LRs. & ors. ,
(2013) 4 SCC 97; 2013 (31) LCD 540 (Para 10,
13, 25)

20. State of Chhatisgarh & ors. Vs Dhirjo Kumar
Sengar, (2009) 13 SCC 600 (Para 31)

21. Madhusudan Das Vs Smt. Narayani Bai & ors. ,
AIR 1983 SC 114; (1983) 1 SCC 35 (Para 32)

22. Kannai Lal & ors. Vs Ram Chandra Singh &
ors. , 2017 SCC Online SC 1009 (Para 39)

23. Madhukar & ors. Vs Sangram & ors. , (2001)
4 SCC 756 (Para 42)

24. Nopani Investment (P) Ltd. Vs Santokh
Singh (HUF), (2008) 2 SCC 728 (Para 44)

25. G. Amalorpavam Vs R.C. Diocese of
Madurai, (2006) 3 SCC 224 (Para 47)

26. Dalla Vs Nanhu, 2018 SCC Online All 5845
(Para 50)

Precedent distinguished:

1. Ayodhya Prasad Vs Durga Prasad & ors.,
(2017) 35 LCD 3236 (Para 10, 48)

2. Ram Narain Vs Raj Narain, 2017 (35) LCD
2771 (Para 10, 48)

3. Kuldeep Saxena Vs Smt. Archana Saxena & 6
ors., 2017 (Suppl) ADJ 740 (Para 10, 48)

4. Narayan Bhagwantrao Gosavi Balajiwale Vs
Gopal Vinayak Gosavi & ors., AIR 1960 SC 100
(Para 10, 21)

5. Union of India Vs Ibrahim Uddin & anr., 2012
(30) LCD 1635 (Para 10, 21)

6. Ram Dayal & ors. Vs Firm Hanoman Prasad
Manohar Lal & ors., 1985 (3) LCD 262 (Para 6,
17)
2 All. Shiv Darshan Yadav Vs. Executive Engineer Electricity Distribution Div.-I, Faizabad
939
Present second appeal has been filed
against the judgment and decree dates
19.12.2013 and judgment and decree
dated 31.07.2013 passed by trial court.

(Delivered by Hon'ble Rajnish Kumar, J.)

1. This second appeal under Section
100 of the Code of Civil Procedure has
been filed against the judgment and
decree dated 19.12.2013 passed in Civil
Appeal No.198 of 2013 (Shiv Darshan
Yadav Vs. Adhishashi Abhiyanta) and
judgment and decree dated 31.07.2013
passed by the trial court in Original Suit
No.842 of 2011 (Adhishashi Abhiyanta
Vs. Shiv Darshan Yadav).

2. The brief facts of the case for
adjudication of the instant second appeal
are that the appellant Shiv Darshan Yadav
was appointed under dying in harness as
junior clerk in place of his alleged
adoptive father namely Kanhaiya Lal on
the basis of an alleged adoption deed
dated 11.08.1995. A complaint was made
by one Mukesh Kumar Srivastava, a
social worker on 27.05.2011 to the
District Magistrate, Faizabad alleging
that the appellant has obtained the service
on the basis of a fraudulent adoption deed
and requested for a magisterial enquiry.
In pursuance thereof an enquiry was
conducted
by
the
City
Magistrate,
Faizabad. On the basis of the Enquiry
Report,
submitted
after
recording
statement of the appellant, the District
Magistrate, Faizabad written letters dated
20.06.2011 and 21.06.2011 to the officers
of the Electricity Department to take
action against the appellant. In pursuance
thereof the appellant was suspended vide
order dated 30.12.2011 and the Original
Suit No.842 of 2011 was filed by the
respondent before the Additional Civil
Judge, Junior Division-IV, Faizabad for
cancellation of Adoption Deed dated
11.08.1995.

3. The appellant challenged the
suspension order before this Court in Writ
Petition No.952 (S/S) of 2012. The writ
petition was dismissed on 02.02.2012 with
direction to the opposite parties to conclude
the enquiry within a period of four months.
After submission of Enquiry Report, the
appellant was reinstated vide order dated
10.04.2012 subject to judgment in Original
Suit No.842 of 2011 pending in the Court of
Civil Judge, (Jr. Division) Sadar, Faizabad.
The suit was decreed after evidence and
opportunity of hearing by means of the
judgment and decree dated 31.07.2013.
Being aggrieved the civil appeal No.198 of
2013 was filed by the appellant which was
also dismissed vide judgment and decree
dated 19.12.2013. Hence, the instant second
appeal.

4. The instant second appeal was
admitted
on
the
following
substantial
questions of law:-

"(1) Whether the suit filed by the
respondent was not barred by limitation as in
view of the specific admission of PW-1 that
on the basis of the registered deed of
adoption, the appellant was appointed on
compassionate ground under Dying in
Harness Rules after the death of Kanhaiya
Lal Yadav and the learned courts below were
justified in law in holding that the suit was
within limitation, while decreeing the suit?

(2) Whether the presumption
available to a registered deed of adoption
under Section-16 of the Hindu Adoption &
Maintenance Act, 1956 coupled with the
provisions of section 47 of the registration
Act could be discarded merely on surmises
and conjectures, ignoring the admissions
made by PW-1?
940 INDIAN LAW REPORTS ALLAHABAD SERIES

(3) Whether the appellant, who
after execution of the registered deed of
adoption had completely severed relations
with his natural father and mother and on
the death of adoptive father, Kanhaiya Lal
Yadav, his name was recorded in revenue
records being an adopted son. The learned
courts below were justified in law in
cancelling the registered deed of adoption
merely on technicalities, ignoring the law
propounded by the apex to the effect that
there is a presumption about the registered
deed of adoption, unless proved otherwise
by leading cogent evidence on record?

(4) Whether in view of of the well
settled proposition of law that the plaintiff
has to prove his case by leading positive
evidence on record and could not derive
any benefit from the weakness of defence
and the learned courts below were justified
in law while decreeing the suit?"

Subsequently, during course of
arguments learned counsel for the appellant
contended that the appellate court has
decided the appeal without complying the
provisions of Order-41, Rule-31 of the Civil
Procedure Code, therefore the following
substantial question of law was also framed:-

" (5) Whether judgment passed by
the Lower Appellate court is not sustainable
due to non compliance of Order 41 Rule 31 of
Civil
Procedure
Code
as
point
of
determination has not been stated and
whether the said provision is mandatory and
failure to comply the same vitiates the
judgment?"

5. Heard, Shri Mohd. Arif Khan,
learned Senior Advocate assisted by Shri
Mohd. Aslam Khan, learned counsel for the
appellant and Shri B.N. Mishra, learned
counsel for the respondent.

6. Submission of learned counsel for
the appellant was that the suit filed by the
respondent
was
barred
by
limitation
because the adoption deed was executed on
11.08.1995 and the suit was filed on
25.11.2011 whereas on the basis of the said
registered adoption deed the appellant was
appointed in dying in harness in the year
1996
without
raising
any
objection.
Therefore, the suit should have been
dismissed being barred by limitation under
Order 7 Rule 11. The learned trial court,
despite a specific plea by the appellant in
regard to limitation, failed to make any
issue in regard to limitation. He, relying on
a judgment of this Court in the case of Ram
Dayal and Others Vs. Firm Hanoman
Prasad Manohar Lal and Others; 1985 (3)
LCD 262, submitted that it is the
responsibility of the court to frame the
proper issues which arise in the case. He
had further submitted that the suit was not
maintainable on the principle of estoppel
also because once the appellant was
appointed treating the same adoption deed
as correct, the respondent could not have
challenged validity of the same.

7. Learned counsel for the appellant
had further submitted that the presumption
available to a registered deed of adoption
under Section-16 of the Hindu Adoption
and Maintenance Act, 1956 (here-in-after
referred as HAMA 1956) can not be
discarded merely on the basis of a
complaint and it can not be challenged by
the department. The court also could not
have discarded the same merely on
surmises and conjunctures ignoring the
admission by PW1 that the department had
appointed the appellant founding the
adoption deed to be correct. He further
submitted that the name of the appellant
was recorded in Pariwar Register and
Revenue Records after the death of late
Kanhaiya Lal on whose place the appellant
was appointed under dying in harness rules.
2 All. Shiv Darshan Yadav Vs. Executive Engineer Electricity Distribution Div.-I, Faizabad
941
But the said documents have wrongly been
discarded by the trial court on the ground
that they are subsequent to the adoption
deed and not considered by the appellate
court. Therefore both the judgments passed
by the courts below are vitiated and not
sustainable in the eyes of law.

8. Learned counsel for the appellant
had further submitted that the respondent
had to prove his case by leading positive
evidence and could not derive any benefit
from the weakness of the defence but the
learned courts below failed to consider it.
The respondent had failed to prove his case
and disprove the registered adoption deed,
ignoring the same the suit has been allowed
and appeal has been dismissed on the
ground that the appellant has not been able
to discharge his burden.

9. Learned counsel for the appellant
had also submitted that the first appellate
court has decided the appeal without
following the mandatory provisions of
Order-41, Rule-31 of the Civil Procedure
Code as points of determination have not
been stated. The first appellate court had
also failed to consider all the evidence and
material on record. Therefore, the judgment
and decree passed by the first appellate
court is not sustainable on this ground
alone and is liable to be set-aside.

10. The learned counsel for the
appellant has relied on Kuldeep Saxena Vs.
Smt. Archana Saxena and 6 Others; 2017
(Suppl) ADJ 740, U. Manjunath Rao Vs.
Chandrashekar and Another; 2017 SCC
Online SC 865, Kanailal and Others Vs.
Ram Chandra Singh and Others; 2017 SCC
Online SC 1009, C. Venkata Swamy Vs.
H.N. Shivanna (D) by Lrs. and Another;
(2018) 1 SCC 604, Laliteshwar Prasad
Singh and Others Vs. S.P. Srivastava (D)
through Lrs; (2017) 2 SCC 415, Ayodhya
Prasad Vs. Durga Prasad and Others;
2017(35) LCD 3236, Ram Narain Vs. Raj
Narain; 2017 (35) LCD 2771, Malluru
Mallappa
(D)
through
Lrs.
Vs.
Kuruvathappa and Others; (2020) 4 SCC
313, Madhukar and Others Vs. Sangram
and Others; (2001) 4 SCC 756, Santosh
Hazari Vs. Purushottam Tiwari (D) by Lrs.;
(2001) 3 SCC 179, Shashidhar and Others
Vs. Ashwani Uma Mathad and Another;
(2015) 11 SCC 269, Shiv Singh Rana Vs.
Deputy Registrar and Others; 2000 (18)
LCD 1211, Committee of Management Vs.
Deputy Director of Education; 2006 (24)
LCD 1328, Union of India Vs. Ibrahim
Uddin and Another; 2012 (30) LCD 1635,
Vinod Kumar Vs. Gangadhar; (2015) 1SCC
391, Gram Sabha Kaunai, Vs. Deputy
Director of Consolidation; 2009 (27) LCD
1118, Ayodhya Prasad Tewari Vs. Ramesh
Chandra and Others; 2012 (30) LCD 575,
Laxmibai
(D)
and
another
Vs.
Bhagwantbuva (D) and Others; 2013 (31)
LCD 540, Amar Singh Vs. Tej Ram and
Another; AIR 1982 Punjab and Haryana
282, Sushil Chandra Vs. Smt. Bhoop
Kunwar and Others; AIR 1977 Allahabad
441, Md. Aftabuddin Khan and Others Vs.
Smt. Chandan Bilasini and Another; AIR
1977 Orissa 69 and Narayan Bhagwantrao
Gosavi Balajiwale Vs. Gopal Vinayak
Gosavi and Others; AIR 1960 SC 100.

11. Submission of learned counsel for
the appellant was refuted by the learned
counsel for the respondent. He had
submitted that the suit was filed within time
from the date of knowledge of execution of
adoption
deed
fraudulently,
when
a
complaint was made on 27.05.2011 to the
District Magistrate, Faizabad and enquiry
was conducted and letters were written to
the
higher
officers
of
respondent
department on 20.06.2011 and 21.06.2011.
942 INDIAN LAW REPORTS ALLAHABAD SERIES
He further submitted that it was a case of
obtaining service under dying in harness on
the basis of a fraudulent adoption deed in
which the respondent was not a party.
Therefore, it was rightly filed by the
department within the time from the date of
knowledge being fraudulent and it was not
barred by Principle of Estoppel also. The
plea of limitation raised by the appellant
has been considered by the trial court and
rejected. He relied on Sl. No.59 of the
Schedule of the Limitation Act, 1963.

12.

Learned
counsel
for
the
respondent had further submitted that the
case of the respondent was proved by the
PW-1 and PW-2 and disproved the
adoption deed executed in favour of the
appellant. The appellant could not extract
anything in cross-examination which may
disbelieve
the
evidence.
He
further
submitted that DW-1 i.e. the appellant and
DW-2, who is the natural father of the
appellant
gave
contradictory
evidence
which is not believable. The appellant
could not prove the adoption and execution
of deed validly. It is the admitted case of
the appellant that Kanhaiya Lal, who had
executed the adoption deed, was suffering
from paralysis and he was not in a position
to speak and walk and his hands and legs
were also not working so it was falsely
mentioned in the adoption deed that the
same has been executed with his sweet will
after he heard and understood. There is also
no proper explanation for putting thumb
impression on the adoption deed while
Kanhaiya Lal, the alleged adoptive father
of the appellant used to sign. A finding was
also recorded by the City Magistrate that
the thumb impression does not tally with
the thumb impression on service book of
Kanhaiya Lal, even then the appellant did
not try to prove the same. Therefore it is
apparent that the adoption deed was also
got executed and registered fraudulently by
some other person in place of late Kanhaiya
Lal.

13.

Learned
counsel
for
the
respondent had also vehemently opposed
the submission of learned counsel for the
appellant regarding violation of order-41,
rule 31 of C.P.C. and submitted that there is
no illegality or infirmity in the order passed
by the first appellate court. Learned counsel
for the respondent relied on Gurrella
Durga Vara Prasad Rao Vs. Indukuri
Rama Raju; 2002 (Supp.2) ALD 757,
Malluru Mallappa (D) through LRs. Vs.
Kuruvathappa and Others; (2020) 4 SCC
313, Laxmibai (D) and Another Vs.
Bhagwantbuva (D) and Others; 2013 (31)
LCD 540 and Union of India and Others
Vs. Tarsem Singh; 2008 (8) SCC 648.

14. I have considered the submissions
of learned counsel for the parties and
perused the records.

15. The so called registered adoption
deed was executed on 11.08.1995, on the
basis of which the appellant was appointed
under dying in harness rules on 17.08.1996
on the post of Clerk with the respondent. A
complaint was made by one Mukesh
Kumar Srivastava, a social worker, on
27.05.2011 to the District Magistrate for
Magisterial Enquiry in regard to obtaining
service by the appellant on the basis of
forged document etc. In pursuance there of
an enquiry was conducted by the City
Magistrate, in which the adoption deed was
found to have been got executed in a
fraudulent manner and a report was
submitted by him on 20.06.2011. In
pursuance thereof the District Magistrate
had written letters dated 20.06.2011 and
21.06.2011 to the department of the
appellant i.e. the respondent. Thereafter, the
2 All. Shiv Darshan Yadav Vs. Executive Engineer Electricity Distribution Div.-I, Faizabad
943
suit for cancellation of registered adoption
deed dated 11.08.1995 was filed by the
respondent on 28.11.2011. Sl. No.59 of the
Schedule of The Limitation Act, relevant
for the purpose, is extracted below:-

Sl.
No.
Description
of Suit
Period
of
Limitation
Time
from
which
period
begins
to run
59.
To cancel or
set aside an
instrument
or decree or
for
the
rescission of
a contract.

Three
years
When
the facts
entitling
the
plaintiff
to have
the
instrum
ent
or
decree
cancelle
d or set
aside or
the
contract
rescinde
d
first
become
known
to him.

16. In view of above, the period of
limitation
to
set-aside
the
registered
adoption deed, on the basis of which the
appellant was appointed in service, is three
years from the date of knowledge of the
fact entitling to respondent i.e. the plaintiff
to have the instrument cancelled. Section
17 of the Limitation Act provides that the
period of limitation shall not begin to run
until
the
plaintiff
or
applicant
has
discovered the fraud. It is not disputed that
the respondent was not a party to the deed.
Therefore it can not be said that the fact
entitling to plaintiff to have the instrument
rescinded
was
become
known
to
respondent/plaintiff prior to the complaint
made questioning the adoption deed only
because the appellant was appointed on the
basis of the alleged adoption deed treating
it as correct because it was registered. The
fact entitling the respondent to have the
instrument cancelled or set-aside first
become known to the respondent only on or
after 27.05.2011, when the complaint was
made it was found fraudulently registered
and the suit was filed on 28.11.2011,
therefore the suit was filed well within time
and it was not barred by limitation. The
Hon'ble Apex Court, in the case of Union
of India and Others Vs. Tarsem Singh
(Supra), has held that a "continuing
wrong" refers to a single wrongful act
which causes a continuing injury and in
such case relief can be granted even if there
is a long delay. In the present case the
appellant was appointed on the basis of
fraudulent deed and continuing and getting
salary regularly, therefore also the suit for
cancellation of the fraudulent deed can not
be barred by limitation.

17. Now the question arises, as to
whether the trial court had failed in
discharging its responsibility of framing the
issue of limitation when a plea was raised.
The trial court had framed issue no.6
"Whether the suit was barred by provisions
of Order-7, Rule-11, C.P.C." Order-7, Rule11 of C.P.C. provides the grounds on which
a plaint can be rejected. Sub-rule (d) of
Rule-11 provides "Where the suit appears
from the statement in the plaint to be barred
by any law." Therefore the plea of barred
by law of limitation could have been
considered in the said issue. This Court, in
the case of Ram Dayal and Other Vs. Firm
944 INDIAN LAW REPORTS ALLAHABAD SERIES
Hanoman Prasad Manohar Lal and
Others (Supra), has held that it is true that
on the date of framing of the issues the
parties made statement that no other issue
is pressed but that does not absolve the
responsibility of the court in not framing
proper issues which arise in the case. Since
an issue was framed, in which the plea of
barred by law of limitation raised by the
appellant could have been considered and
was considered by the trial court and found
the suit within limitation, therefore there
was no need of framing a separate issue of
limitation. This court is of the considered
opinion that there is no illegality or error in
the finding recorded by the trial court in
regard to limitation and it has not
committed any illegality or error in not
framing a separate issue in regard to
limitation and trial court has rightly
discharged the responsibility. The aforesaid
case law relied by learned counsel for the
appellant is of no assistance to him.

18. The next submission of learned
counsel for the appellant was regarding
presumption available to the registered
adoption deed under Section-16 of the
HAMA 1956 and it can not be challenged
by the department. Section-16 of the Hindu
Adoption and Maintenance Act is extracted
below:-

"16.
Presumption
as
to
registered
documents
relating
to
adoption:-
Whenever
any
document
registered under any law for the time being
in force is produced before any court
purporting to record an adoption made and
is signed by the person giving and the
person taking the child in adoption, the
court shall presume that the adoption has
been
made
in
compliance with
the
provisions of this Act unless and until it is
disproved."

The aforesaid Section-16 has
been renumbered as Sub-section 1 and Subsection 2 has been added by the State
Amendment by the State of Uttar Pradesh
by means of Act No. 57 of 1956 w.e.f.
01.01.1997, which is extracted below:-

"State Amendment Uttar Pradesh
Section 16 renumbered as sub-section(1)
thereof and after sub-section (1) as so
renumbered, the following sub-section (2)
shall be inserted, namely:--

"(2) In case of an adoption made
on or after the 1st day of January, 1977 no
court in Uttar Pradesh shall accept any
evidence in proof of the giving and taking
of the child in adoption, except a document
recording an adoption, made and signed by
the person giving and the person taking the
child in adoption, and registered under any
law for the time being in force: Provided
that secondary evidence of such document
shall be admissible in the circumstances
and the manner laid down in the Indian
Evidence Act, 1872."

(i)
Whenever
any
document
registered under any law for the time being
in force is produced before any court
purporting to record an adoption made and
is signed by the person giving and the
person taking the child in adoption, the
court shall presume that the adoption has
been
made
in
compliance with
the
provisions of this Act. The proof of giving
and taking of child is not necessary;
Pathivada Rama Swami v. Karoda Surya
Prakasa Rao, AIR 1993 AP 336.

(ii) If the adoption is disputed, it
is for the plaintiff to prove that ceremony of
giving and taking has not taken place;
Devgonda Raygonda Patil v. Shamgonda
Raygonda Patil, AIR 1992 Bom 189"

19. In view of above, in case a
registered document relating to adoption is
produced, the court shall presume that the
2 All. Shiv Darshan Yadav Vs. Executive Engineer Electricity Distribution Div.-I, Faizabad
945
adoption has been made in compliance with
the provisions of the Act unless and until it
is disproved. It has been provided by State
amendment of Uttar Pradesh that on or
after 1st day of January, 1977 the court
shall not accept any evidence of adoption,
except a document recording an adoption,
made and signed by the person giving and
person taking the child in adoption, and
registered under any law for the time being
in force. Thus the presumption is available
only until it is disproved. Therefore it is
always open to the person challenging it to
disprove the same in accordance with law.
Therefore, the validity of the adoption deed
could have been examined by the court
when the question regarding it's validity
was raised.

20. The Hon'ble Apex Court, in the
case of Mst. Deu and Others Vs. Laxmi
Narayan and Others; (1998) 8 SCC 701,
has held that in view of Section 16,
whenever any document registered under
any law is produced before any court
purporting to record an adoption made and
the same is signed by the persons
mentioned therein, the court shall presume
that the said adoption has been made in
compliance with the provisions of he Act,
until and unless such presumption is
disproved. It was further held that in view
of Section 16 it is open for a party to
attempt to disprove the deed of adoption by
initiating independent proceedings.

21. In view of above the respondent has
rightly filed the suit for cancellation of deed
of adoption in accordance with law under
Section 31 of Specific Relief Act, 1963 after
coming to know that it was fraudulently got
registered because the respondent department
has to pay the salary to the appellant from the
public exchequer on account of appointment
in dying in harness on the basis of said
fraudulent deed. Therefore, the admission
that the appellant was appointed on the basis
of the said deed being a registered document
does not debar it from challenging the deed
because it may cause serious injury to it.
Therefore it is not barred by principle of
estoppel also. The judgment of the Hon'ble
Apex Court, in the case of Narayan
Bhagwantrao Gosavi Balajiwale Vs. Gopal
Vinayak Gosavi and Others (Supra), is of no
assistance to the appellant because it provides
that an admission is best evidence, though not
conclusive but decisive unless successfully
withdrawn or proved erroneous. The same
view has been reiterated in the Union of
India Vs. Ibrahim Uddin and Another
(Supra). It can be proved only in appropriate
proceeding therefore it can not be said that
the suit could not have been filed.

22. The certified copy of the adoption
deed on record shows that the same has been
executed by Kanhaiya Lal, the adoptive
father of the appellant and the natural parents
of the appellant i.e. Ram Kishore and
Devraji. It is mentioned in the deed that wife
of Kanhaiya Lal has died some times ago. It
has further been stated that he had adopted
the son of the second party Shiv Darshan in
his childhood according to Hindu rituals but
it was not in writing. Therefore, it is apparent
that the appellant was not adopted when the
deed was being registered and the registered
deed was executed in regard to the alleged
adoption made earlier. But the details i.e. no
date, time and place of adoption and any
witness of the alleged adoption has been
given in the adoption deed. Therefore the
adoption deed does not itself prove that the
alleged adoption is in accordance with law.

23. The question arises as to whether
in case of registration of an adoption deed
of an earlier oral adoption it would operate
from the date of oral adoption or from the
946 INDIAN LAW REPORTS ALLAHABAD SERIES
date of registration. Section-47 of the
Registration
Act
provides
that
the
registered document shall operate from the
time from which it would have commenced
to operate if no registration thereof had
been required or made and not from the
time of its registration. Section-47 is
extracted below:-

"47. Time from which registered
document operates- A registered document
shall operate from the time from which it
would have commenced to operate if no
registration thereof had been required or
made, and not from the time of its
registration."

24. The alleged adoption has been
made in the year 1980, which is after 1977
and in view of Sub-Section (2) of Section16 by the State amendment in Uttar
Pradesh, in case of an adoption after the
first day of January 1977, no court in Uttar
Pradesh shall accept in evidence in proof of
giving and taking of a child in adoption
except document regarding any adoption,
made and signed by the person giving and
the person taking the child in adoption, and
registered under any law for the time being
in force.