2025:JHHC:25553 1 IN THE HIGH COURT OF JHARKHAND AT RANCHI S. A. No. 261 of 2003 Neelam Kumari, daughter of Gulab Rout, resident of Village Mohalla, Mathabandh, Deoghar, P.O. Deoghar, at present Mohalla-Mathabandh, Deoghar Town, P.O. and P.S. Deoghar, Sub-Division and District- Deoghar. … … Appellant/Appellant/Plaintiff Versus 1. Baleshwar Manjhi, son of Late Churaman Manjhi. 2. Rajiv Ranjan Mahto, Son of Late Baleshwar Mahto. 3. Suryakant Manjhi, Son of Baleshwar Manjhi. All by caste Yadav, by profession cultivation, resident of Village Pichhi, Dahuwa Tq. Jhitki, P.O. Lakhoriya, P.S. Sarwan, Subdivision and District-Deoghar. 4. Smt. Geeta Devi, Wife of Ashok Kumar Yadav and daughter of Baleshwar Manjhi, resident of Village-Ghutia, P.O. Mohanpur, P.S. Mohanpur, Sub-division and District-Deoghar … … Respondents/Respondents/Defendants --- CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --- For the Appellant :Mr. Shrinandan Prasad Singh, Sr. Advocate :Mr. Arvind Kr. Choudhary, Advocate For the Respondents :Mr. Jay Prakash Jha, Sr. Advocate :Mr. Sanjay Thakur, Advocate --- 18/27.08.2025 1. Heard the learned counsel appearing on behalf of the parties. 2. This appeal has been filed against the judgment dated 20.02.2003 (decree signed on 03.03.2003) passed by the learned Additional District Judge F.T.C.-IV, Deoghar in Title Appeal No. 10 of 2000/ 17 of 2002 affirming the judgment dated 31st January, 2000 (decree signed on 08.02.2000) in Title Suit No. 47 of 1978 passed by learned Sub-Judge-V, Deoghar. 3. The suit was dismissed by the learned trial court and the judgment was upheld by the learned 1st appellate court accordingly, the plaintiff is the appellant before this Court. 4. This appeal was admitted for final hearing vide order dated 15.07.2004 by framing the following substantial question of law:- 2025:JHHC:25553 2 Whether the judgment and decree of the lower appellate court is illegal and against the judicial propriety for non- consideration and non-discussion of the evidences on record? 5. The suit was filed for the following reliefs: a) Declaration that the defendant No.3 is not the adopted son of the plaintiff and there was never any adoption of defendant No. 3 by the plaintiff and cancellation of the Deed No. 94 dated 5.5.76 registered at Deoghar Sub- Registry office purporting to record alleged adoption of defendant No.3. b) Declaration of plaintiff’s title to the suit properties described in Schedule ‘A’ of the plaint and recovery of possession of the same through court. c) Future mesne profits from the date of suit till recovery of possession. d) The cost of the suit. e) Any other relief or reliefs to which the plaintiff may deemed entitled. Arguments of the appellant. 6. The learned counsel for the appellant has submitted that the core issue involved in the suit was in connection with legality and validity of adoption of defendant No.3 who is the biological son of defendant No.1 & 2. The learned counsel submits that though the deed of adoption was registered, but the specific case of the plaintiff was that it was fraudulently registered. He submits that as per Section 16 of the Hindu Adoption and Maintenance Act there is a presumption in connection with a registered deed of adoption but such presumption is a rebuttal presumption. The learned counsel has submitted that the suit was highly contested. Both the parties lead oral and documentary evidence in support of their respective case, but the trial court though has referred to the evidences and the case of the respective parties and their arguments but primarily was swayed away by the fact that the deed of adoption was a registered document and was not impeachable. 2025:JHHC:25553 3 7. The learned counsel has further submitted that so far as learned 1st appellate court is concerned, there is no discussion of oral and documentary evidences while recording the finding and upholding the judgment of the learned trial court. He submits that the learned 1st appellate court was also swayed away by the fact that the deed of adoption was a registered document duly signed by the adopted parents and also by the biological parents of the defendant No.3 and that the registrar must have made the necessary queries and ultimately upheld the judgment of the learned trial court. 8. The learned counsel has relied upon the judgment passed by the Hon’ble Supreme Court which is reported in (2002) 3 SCC 634 and has submitted that the law is well settled that there is only a presumption with regard to adoption under Section 16 of the Hindu Adoption and Maintenance Act, but the same is a rebuttable presumption and in case any dispute is raised the same has to be dealt with considering the oral and documentary evidences. 9. The learned counsel has submitted that the learned 1st appellate court being final court of fact and law and the proceeding therein is continuation of a suit, the 1st appellate court is duty bound to consider the oral and documentary evidences placed on record and the 1st appeal is to be decided in accordance with the provisions of Order XLI Rule 31 of CPC. The learned counsel submits that even no point of determination as such was framed by the learned 1st appellate court while deciding the case and dismissing the appeal. Learned counsel has also submitted that the plaintiff had also prayed for a declaration of title in respect to schedule ‘A’ property, but the same has neither been considered by the learned trial court nor has been considered by the learned 1st appellate court. He has submitted that no issue to that effect was framed. 10. Learned counsel has also submitted that in absence of complete non-consideration / non-discussion of the evidences on record, the 1st appellate court’s judgment cannot be sustained when seeing in the light of Order XLI Rule 31 of CPC and the judgment passed by the 2025:JHHC:25553 4 learned 1st appellate court be set aside and the matter be remitted to the learned 1st appellate court for fresh consideration in accordance with law on the basis of materials already available on record. Learned counsel has also relied upon the following judgment passed by the Hon’ble Supreme Court: - i. (2022) 3 SCC 90. ii. (2021) 10 SCC 777. Arguments of the respondents. 11. Learned counsel appearing on behalf of the respondents has vehemently opposed the prayer and has submitted that there are concurrent findings recorded by both the courts with regard to legality and validity of adoption and under the second appellate jurisdiction there is no scope for any interference. He has also submitted that there is no scope for re-appreciation of evidences at second appellate stage and therefore, the impugned judgment passed by the learned 1st appellate court upholding the judgment passed by the learned trial court does not call for any interference. 12. He has also submitted that once the learned trial court has referred to the materials on record and come to a finding, under such circumstances the learned 1st appellate court need not again refer to the evidences on record and come to a finding particularly when the learned 1st appellate court is to uphold the findings of the learned trial court. The learned counsel has relied upon the following judgments: - a) In the case of Madhusudan Das v. Narayanibai reported in (1983) 1 SCC 35, paragraph 8 and 20 where the question of validity of adoption was involved and the general principle has been highlighted that in an appeal against a trial court decree, when the appellate court considers an issue turning on oral evidence it must bear in mind that it does not enjoy the advantage which the trial court had in having the witnesses before it and of observing the manner in which they gave their testimony. When there is a conflict of oral evidence on any matter in issue and its resolution turns upon 2025:JHHC:25553 5 the credibility of the witnesses, the general rule is that the appellate court should permit the findings of fact rendered by the trial court to prevail unless it clearly appears that some special feature about the evidence of a particular witness has escaped the notice of the trial court or there is a sufficient balance of improbability to displace its opinion as to where the credibility lies. However, there is no doubt that as a matter of law if the appraisal of the evidence by the trial court suffers from a material irregularity or is based on inadmissible evidence or on a misreading of the evidence or on conjectures and surmises the appellate court is entitled to interfere with the finding of fact. It has also been held that for a valid adoption, the physical act of giving and taking is an essential requisite, a ceremony imperative in all adoptions, whatever the caste. And this requisite is satisfied in its essence only by the actual delivery and acceptance of the boy, even though there exists an expression of consent or an executed deed of adoption b) In the case of Madamanchi Ramappa v. Muthaluru Bojjappa AIR (1963) SC 1633, paragraph 10 and 11 the limits of the power under second appeal have been discussed and it has been held that 2nd appeal cannot be decided as 1st appeal. Findings of this Court. 13. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, this Court finds that on the basis of rival claims between the parties, the following issues were framed by the learned trial court:- i. Whether the suit as framed is maintainable? ii. Whether the plaintiff has got valid cause of action for the suit? iii. Whether Suryakant Manjhi is the legally and validly adopted son of Gulab Rout and Fulo Routain? iv. Whether Gulab Rout and Fulo Routain were the victims of fraud and misrepresentation played by Baleshwar Manjhi and whether the deed No.94 of 2025:JHHC:25553 6 1976 is the result of such fraud and misrepresentation? v. Whether the Civil Court has got jurisdiction to try this suit in view of the issuance of notification U/S 9 of Regulation III of 1872? vi. Whether the suit is bad for non-joinder of the parties? vii. Whether the suit is barred under the law of limitation, estoppel, waiver and acquiescence? viii. Whether adoption deed No.94 dated 5.5.1976 executed by Gulab Rout and Fulo Routain and registered at Deoghar registry office for taking Suryakant Manjhi in adoption by these natural father and mother in giving adoption is a valid, genuine and legal document? ix. Whether the plaintiff is entitled to a decree as prayed for? x. Whether the plaintiff is entitled to any relief or reliefs as claimed? 14. The learned trial court while considering the findings has recorded that the plaintiff has adduced both oral and documentary evidences. Altogether 9 witnessed were examined on behalf of the plaintiff. Details of the witnesses have been mentioned as under:- Oral evidence on behalf of the plaintiff. P.W.1 Fulo Rautain P.W.2 Baijnath Raut P.W.3 Ashutosh Raut P.W.4 Lal Prasad Yadav P.W.5 Ram Napit P.W.6 Jai Narain Pandey P.W.7 Upendra Pandit P.W.8 Chhoti Rout P.W.9 Lamodar Pandey 15. Amongst the documentary evidences, the plaintiff adduced the certified copy of the voter list of Jamtara Assembly Constituency of the year 1995 which was marked as Exhibit 1. 16. So far as defendants are concerned, they have examined altogether 16 witnesses in support of their case and also adduced documentary evidences. 2025:JHHC:25553 7 Oral evidence on behalf of the Defendants. D.W.1 Ganesh Prasad Sah D.W.2 Gauri Shankar Barnwal D.W.3 Madhusudan Yadav D.W.4 Mali Ram D.W.5 Purnanand Thakur D.W.6 Dineshwar Manjhi D.W.7 Phuleshwar Yadav D.W.8 Dev Narayan Yadav D.W.9 Basudev Mahto D.W.10 Binod Kumar Malviya D.W.11 Ugan Mahto D.W.12 Ritlal Mahto D.W.13 Punit Deo D.W.14 Baleshwar Das D.W.15 Chandra Shekhar Gupta D.W.16 Baleshwar Manjhi Exhibits produced on behalf of the Defendants. Exhibit – A Signature and certificate of deed writer Purnanand Thakur on the Adoption Deed. Exhibit – A/1 to A/5 Signatures and writing of stamp vendor on the Adoption Deed. Exhibit- B Original Adoption Deed No. 98 dated 5.5.1976 Exhibit- C to C/2 Rent receipts issued by Government of Bihar Exhibit – D Negative of Photographs Exhibit – D/1 Positive of Photographs Exhibit – E Envelope of the negative on which the name, number and date was written. Exhibit – F Extract copy of Electoral Roll of Jarmandi Assembly Constituency- 159 of year 1995 Exhibit – G Residential certificate of Devakant Rout (adopted son of plaintiff) 2025:JHHC:25553 8 Exhibit – H Copy of caste certificate of Defendant No.3 17. The stamp of the fine photo studio photograph has been marked as Exhibit-X/1. 18. Thus, both oral and documentary evidences were adduced. The learned trial court took-up issue No. VIII as the main issue. The learned trial court has referred to the specific pleadings of the parties and the arguments of the parties by referring to the evidences placed on record and also referred to the rulings cited by both the parties and ultimately gave a finding as follows: - “From the discussions above made, it is clear that this suit has been filed on 12.04.78 when the alleged adoption deed has been executed on 5.5.76 by observing all the religious rites including the Act of taking and giving at mauza Chhatisi on 5.5.76 by late Gulab Rout with the consent of his wife Fulo Routain who executed the deed of adoption in favour of Surya Kant Manjhi which deed was also joined by Baleshwar Manjhi and his wife Sumati Devi, the deed was registered. So the adoption deed No.94 dated 5.5.76 is a valid, genuine and legal document and this adoption Deed Ext. B stands fully well fortified by the law and it is an unimpeachable document and there has not been any violation of Section 5 to 11 of the H.A.M. Act. Therefore, this issue is decided against the plaintiff and infavour of the defendants.” 19. So far as other issues are concerned, the same were decided as under:- Issue No.4 From the discussions made above it is abundantly clear that Gulab Rout and Fulo Rautain is not the victim of fraud and misrepresentation because these is absolutely no evidence of fraud and mis-representation adduced by the plaintiffs and plaintiffs have miserably failed to prove fraud and misrepresentation. It has only been alleged by the plaintiffs in their pleadings but it has not been established by oral or documentary evidence that Gulab Rout and Fulo Routain were the victims of fraud and misrepresentation played by Baleshwar Manjhi and further the deed No.94 of 1976 is not the result of such fraud and misrepresentation. 2025:JHHC:25553 9 Therefore, this issue is decided against the plaintiffs and in favour of the defendants. Issue No.3 From the discussions made in issue No.8 and 4 it is abundantly clear that Suraj Kant Manjhi is the legally and validly adopted son of Gulab Rout and Fulo Rautain. Therefore, this issue is decided against the plaintiffs and in favour of the defendants. Issue No.5 This issue was neither raised by the plaintiffs nor by the defendants at the time of argument. Therefore, it is decided that the civil court has got jurisdiction to try this suit in view of the issuance of notification U/S 9 of Regulation III of 1872. Accordingly, this issue is also decided against the plaintiffs and in favour of the defendants. Issue No.6 This issue was also not pressed at the time of argument by the learned counsel of both the parties. Therefore, this issue is also decided against the plaintiffs and in favour of the defendants. Issue No.7 This issue was not pressed by both the parties therefore, decided against the plaintiff and in favour of the defendants. Issue No.1 & 2 Both the issues are formal in nature therefore they have been taken together for discussion. The suit as framed is not maintainable and the plaintiff has got no valid cause of action for the suit. Issue No.9 From the discussions made above the plaintiff is not entitled for a decree as prayer for. Therefore, this issue is also decided against the plaintiffs and in favour of the defendants. Issue No.10 Therefore, it is ordered that the suit on contest is dismissed with the cost. 20. Order XLI Rule 31 of Code of Civil Procedure is quoted as under:- “Contents, date and signature of judgment- The judgment of the Appellate Court shall be in writing and shall state- (a) the points for determination; (b) the decision thereon: (c) the reasons for the decision; and 2025:JHHC:25553 10 (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled; and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein.” 21. This aforesaid provision was subject matter of consideration by the Hon’ble Supreme Court in the judgment reported in (2022) 3 SCC 90 (Manjula and others Vs. Shyamsundar and others). It has been held that the appellate court has the jurisdiction to reverse or affirm the findings of the trial court and it is settled law that an appeal is a continuation of the original proceedings and the jurisdiction of the appellate court involves re-hearing of appeal on question of law as well as the fact and all the questions of fact and law are open for consideration. It has also been held that the judgment of the appellate court must reflect conscious application of mind and must record the court’s findings, supported by reasons, for its decision in respect of all the issues, along with the contentions put forth and pressed by the parties. It has been held that the first appellate court is required to comply with the requirements of Order XLI Rule 31 of Code of Civil Procedure and non-observance of these requirements amounts to the serious infirmity in the judgment. Paragraph 8 of the aforesaid judgment is quoted as under: - “8. Section 96 of the Civil Procedure Code, 1908 (for short “CPC”) provides for filing of an appeal from the decree passed by a court of original jurisdiction. Order 41 Rule 31 CPC provides the guidelines to the appellate court for deciding the appeal. This rule mandates that the judgment of the appellate court shall state: (a) points for determination; (b) the decision thereon: (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. Thus, the appellate court has the jurisdiction to reverse or affirm the findings of the trial court. It is settled law that an appeal is a continuation of the original proceedings. The appellate court’s jurisdiction involves a rehearing of appeal on questions of law as well as fact. The first appeal is a 2025:JHHC:25553 11 valuable right, and at that stage, all questions of fact and law decided by the trial court are open for reconsideration. The judgment of the appellate court must, therefore, reflect conscious application of mind and must record the court’s findings, supported by reasons for its decision in respect of all the issues, along with the contentions put forth and pressed by the parties. Needless to say, the first appellate court is required to comply with the requirements of Order 41 Rule 31 CPC and non-observance of these requirements lead to infirmity in the judgment.” 22. In the judgment passed by the Hon'ble Supreme Court reported in (2021) 10 SCC 777 (K. Karuppuraj Vs. M. Ganesan) , paragraph 7, it has been held that the entire evidences on record are required to be considered even when the 1st appellate court has to arrive at concurrent findings. Paragraph 7 of the aforesaid judgment is quoted as under: “7. In the present case, the original plaintiff instituted a suit for specific performance of the contract. On appreciation of evidence, the learned trial court held the issue of readiness in favour of the plaintiff. However, refused to pass the decree for specific performance of the contract on the ground that the plaintiff was not willing to purchase the property with tenants. Therefore, the issue with respect to willingness was held against the plaintiff. In an appeal filed before the High Court under Section 96 read with Order 41 by the impugned judgment and order, the High Court has allowed the said appeal and has quashed and set aside the decree passed by the learned trial court dismissing the suit and consequently has decreed the suit for specific performance. Having gone through the impugned judgment and order passed by the High Court, it can be seen that there is a total non-compliance of Order 41 Rule 31 CPC. While disposing of the appeal, the High Court has not raised the points for determination as required under Order 41 Rule 31 CPC. It also appears that the High Court being the first appellate court has not discussed the entire matter and the issues in detail and as such it does not reveal that the High Court has re-appreciated the evidence while disposing of the first appeal. It also appears that the High Court has disposed of the appeal preferred under Order 41 CPC read with Section 96 in a most casual and perfunctory manner. Apart from the fact that the High Court has not framed the points 2025:JHHC:25553 12 for determination as required under Order 41 Rule 31 CPC, it appears that even the High Court has not exercised the powers vested in it as a first appellate court. As observed above, the High Court has neither re-appreciated the entire evidence on record nor has given any specific findings on the issues which were even raised before the learned trial court.” 23. Similar view has been expressed by the Hon’ble Supreme Court in the judgment reported in (2010) 13 SCC 530 (B. V. Nagesh and Another) wherein it has been held that without framing points for determination and considering both facts and law and without proper discussion and assigning reasons, the first appellate court’s judgment cannot be sustained. Paragraphs 4 and 5 of the aforesaid judgment are quoted as under: - “4. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. (Vide Santosh Hazari v. Purushottam Tiwari, SCC p. 188, para 15 and Madhukar v. Sangram, SCC p. 758, para 5.) 5.In view of the above salutary principles, on going through the impugned judgment, we feel that the High Court has failed to discharge the obligation placed on it as a first appellate court. In our view, the judgment under appeal is cryptic and none of the relevant aspects have even been noticed. The appeal has been decided in an unsatisfactory manner. Our careful perusal of the judgment in the regular first appeal shows that it falls short of considerations which are expected from the court of first appeal. Accordingly, without going into the merits of the claim of both parties, we set aside the impugned judgment and decree of the 2025:JHHC:25553 13 High Court and remand the regular first appeal to the High Court for its fresh disposal in accordance with law.” 24. This Court finds that so far as learned 1st appellate court is concerned, the 1st paragraph of the judgment deals with the backgrounds, 2nd paragraph deals with the case of the plaintiff / appellant, 3rd paragraph deals with the case of the defendant No. 1 and 2, 4th paragraph deals with the case of defendant No.3 and the 5th paragraph enumerates the issue framed by the learned trial court. In 6th paragraph the learned 1st appellate court recorded that both the parties had filed their written submission. In 7th paragraph the learned court recorded that as per the argument of the plaintiff/appellant, the main issues for consideration was issue No.3, 4 and 8. Thereafter, in 8th paragraph the learned 1st appellate court again recorded the arguments of the plaintiff/appellant and ultimately in paragraph 8 itself the findings has been recorded by the learned 1st appellate court primarily referring to the registered document of deed of adoption deed 5.5.1976 and the learned 1st appellate court has recorded that at the time of adoption, both the parents were present and the learned Sub-Registrar must have made the required queries and ultimately held that the deed of adoption was in accordance with law. 25. This Court finds that learned 1st appellate court has not discussed the oral evidences at all while coming to the findings; this Court also finds that the learned 1st appellate court did not frame any point for determination and primarily based the findings on the basis of the fact that the deed of adoption was a registered document and the presumption under Section 16 of the Hindu Adoption and Maintenance Act. 26. This Court is of the considered view that learned 1st appellate court being the final court of fact and law was duty bound to consider the evidences based on record and discussed the same and decide all the issues which were placed before the court on the basis of materials on record even while affirming the judgement of the learned trial court 2025:JHHC:25553 14 and the judgement should reflect due application of mind to the materials placed on record. 27. Upon perusal of the impugned judgment passed by the learned 1st appellate court and in view of the discussions made above in connection with the impugned judgement, this Court finds that the learned 1st appellate court has not adjudicated the 1st appeal in accordance with the provisions of Order XLI Rule 31 of CPC when read with the aforesaid judgments passed by the Hon’ble Supreme Court. Accordingly, the learned 1st appellate court has acted in illegal manner and against the judicial proprietary in not considering and not discussing the evidences on record. Consequently, the substantial question of law is answered in favour of the appellant and against the respondents. 28. Consequently, the judgment and decree passed by learned 1st appellate court is hereby set aside. 29. The learned 1st appellate court is required to pass a fresh judgment after considering the materials already available on record and in accordance with the provisions of Order XLI Rule 31 of CPC after granting an opportunity of hearing to both the parties. 30. The parties are directed to appear before the learned 1st appellate court or the successor court on 10th November, 2025 at 11:00 AM. Upon the appearance of the parties, the learned 1st appellate court shall decide the appeal as the earliest as the suit is of the year 1978. 31. The parties to co-operate. 32. The records be sent back to the concerned court. 33. This second appeal is disposed of in aforesaid terms. 34. Pending I.A., if any, is dismissed as not pressed. 35. Let a copy of this order be communicated to the concerned court through “Fax/e-mail”. (Anubha Rawat Choudhary, J.) Rakesh/-