O.P. Saxena, J.
1. This Second Appeal has been filed against the judgment and decree dated 28-11-1984 passed by Civil Judge, Alrnora, dismissing an appeal filed against the judgment and decree dated 16th Sept. 1983 passed by Munsif, Ranikhet.
2. The plaintiff-respondent filed a suit for possession over a house and damages for use and occupation with the allegations that Babu Lal was a tenant of the house, that he alone used to live in the house, that he died at Lucknow in June 1979 and that on 19th June 1979 defendants-appellants took wrongful possession over the house after breaking open the lock.
3. The defendants-appellants contested the suit with the allegations that defendant No. 1, Bishan Maheshwari was adopted son of Babu Lal, that when Babu Lal went to Lucknow for his treatment in Nov. 1978, defendant No. 1 used to reside in the house along with other members of his family and that defendant No. 2 has no concern with the house in dispute.
4. Plaintiff-respondent filed replication in which the adoption was denied. It was also denied that defendant No. 1 used to live with Babu Lal in the disputed house.
5. The trial Court disbelieved the defendants' version regarding adoption and held that as defendant No. 1 was over 15 years old at the time of adoption, he could not be legally adopted. The trial Court believed the plaintiff's version regarding forcible possession taken by the defendants and decreed the suit for possession against the defendants. The suit for damages was dismissed.
6. The defendants filed an appeal and the plaintiff filed cross-objection. The appeal was dismissed and the cross-objection was allowed. The suit was further decreed for recovery of Rs. 799/- as damages. Rest of the judgment and decree was confirmed.
7. In the Second Appeal the main grievance of the learned counsel for the appellants is that the plaintiff-respondent did not challenge the legality of adoption in the replication filed by him and as such the Courts below could not hold that the adoption was illegal. He urged that the plaintiff-respondent had denied the factum of adoption and as he did not challenge the legality of adoption, the finding recorded by the Courts below on this point is vitiated. He placed reliance on the case of Maroti Bansi Teli v. Radhabai AIR 1945 Nag. 60. This case was referred before the lower Appellate Court as well and was distinguished on the ground that it related to a period prior to the Hindu Adoptions and Maintenance Act, 1956. In this case on page 61 the following observation was made : --
'The defendants denied the factum of the adoption and denied that these unessential ceremonies were performed. In doing that they did not deny the legality of the adoption'.
In this very case the earlier recitals are as below : --
'The defendants challenge the adoption and also challenge the transfer by Shankar to the plaintiff. It is important to note at this stage exactly what the challenge is. So far as the adoption is concerned, the defendants said (1) that Trimbak had expressly prohibited his widow from adopting and (2) that in any case she was only 13 years old at the time and so had not attained years of discretion.'
It will, thus, appear that the defendants had not only challenged the factum of adoption, but had also challenged the validity of adoption on other grounds. Subsequently observations that they did not deny the legality of adoption appear to be inconsistent with the facts recited earlier.
8. Apart from this, when a party comes to the Court and pleads adoption after coming into force of Hindu Adoptions and Maintenance Act, 1956, it has to show that the adoption took place in accordance with the provisions of law. In this case the adoption is said to have taken place after coming into force of the Hindu Adoptions and Maintenance Act, 1956. Section 10(iv) of the Act provides that no person shall be capable of being taken in adoption unless he or she has not completed the age of fifteen years unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption.
9. The suit was filed on 20-6-1980. The age of defendant No. 1 was given as 33 years. It is obvious that he must have been above 15 years old in 1965. In para 3 of the written statement it was said that defendant No. 1 was adopted in 1965. A reference was also made to a Rajasthani Custom in accordance with which the son of the real brother could be taken in adoption. No reference was, however, made to any custom or usage whereby a person more than 15 years old could also be adopted.
10. I am unable to accept the contention of the learned counsel for the appellants that it was not necessary to plead the custom unless the plaintiff-respondent challenged the legality of adoption. It was for the defendants-appellants to prove that a valid adoption took place in accordance with the provisions of the Hindu Adoptions and Maintenance Act, 1956. When according to age given in the plaint, the defendant No. 1 would have been about 18 years old in 1965, it was for defendant No. 1 to either dispute the age or to plead some custom or usage whereby a person older than 15 years could also be taken in adoption. I reject the contention that in absence of any specific plea by the plaintiff-respondent it was not open for the Courts below to reject the defendant's version on the ground that the adoption was against the provisions of Section 10(iv) of the Hindu Adoptions and Maintenance Act, 1956. Defendant No. 1 himself admitted before the trial Court that he was 16 or 17 years old at the time of adoption and if the defendant No. 1 knew this, it was for him to plead custom or usage and not for the plaintiff-respondent to plead any illegality in adoption.
11. Apart from this the lower appellate Court has pointed out that there was no evidence to show that defendant No. 1 was ever described as the son of Babu Lal. He has referred to electoral rolls in which Babu Lal alone was shown as resident of house No. 140, whereas defendant No. 1 was shown as resident of house No. 152 and his parentage was given as Hari Charan Das (natural father). His wife and parents were also shown residents of same house. In the compromise agreement Ex. 15 also defendant No. 1 was described as son of Hari Charan Das and not of Babu Lal.
12. There is no illegality in the findings recorded by the lower appellate Court, There is no force in the second appeal and the same is dismissed.
13. Appellants are given two months' time to vacate the accommodation.
14. A copy will be issued on payment of usual charges by 3rd May 1985.