Rajeswari Prasad, J. - (1.) THESE are two connected second appeals which can be disposed of by a common judgment Courts below have also disposed of the two suits giving rise to the two second appeals by the common judgment.
(2.) SUIT No. 192 of 1962 was filed by Sri Shanker Lal, who is now the appellant before me against Sri Vijay Shanker, Sri Baboo Lal Sharma and Manager Shrimad Daya Nand Anathalaya, Agra. The other suit No. 277 of 1962 was filed by Sri Vijay Shanker Shukla aforesaid against Sri Shanker Lal, Baboo Lal and Manager, Shrimad Dayanand Anathalaya. Suits are in the nature of cross-suits. Consequently, the plaint allegations in the suit of Shri Shanker Lal are the allegations in his written statement in the other suit and vice versa. The only difference is that in the suit of Sri Shanker Lal, namely, Suit No. 192 of 1962, Sri Babu Lal Sharma and the Manager Shrimad Daya Nand Anathalaya, Agra have filed written statements to contest the claim of Shanker Lal while these two defendants have not filed any written statement in Suit No. 277 of 1962 filed by Shri Viiay Shanker Shukla. The case of Sri Shanker Lal appellant was that a son was born to him on 21st September 1953. He was named Munna alias Viiay. The boy was reading in the Municipal School, Gudari Mansoor Khan situate in Bhando Wali Gali in the city of Agra. On 8th July 1961, the boy did not return home from his school. Efforts were made to recover the boy but in spite of report in the Sewadal and distribution of handbills, the boy could not be traced out. On 4th March 1962, the boy was seen in the custody of Babu Lal Sharma defendant no 2 in a tonga in Sadar Bazar, Agra The boy was then taken to the police station and was thereafter given in the custody of another person, Sri Shanker Lal. The boy was produced in the Court of City Magistrate on the 5th March 1962. at Agra. By the order of the Magistrate, the boy was then put in the custody of the Manager of the defendant Anathalaya but on 7th March 1962, the boy was given in the custody of Sri Shanker Lal on his furnishing security. On the 10th March 1962, Sri Vijay Shanker Shukla went to Agra from Kanpur, visited Shrimad Daya Nand Anathalaya. He moved an application on the 12th March 1962 in the court of the City Magistrate for delivery of the child to him. Sri Shankar Lal, plaintiff-appellant, therefore, filed the suit giving rise to one of the second appeals for a declaration that he was the father of the said Munna alias Vijay and that the defendants had no concern with the child. Necessary injunction was also sought by Shankar Lal.
(3.) THE case of Sri Vijay Shankar Shukla is to the effect that he is a poor Brahman residing at Kanpur and he is the father of six children. Two of his sons Rajendra Prasad aged 10 years and Munna Lal alias Ravindra aged 8 years, who were studying in a Basic School at Mohalla Bhusa Toli in the city of Kanpur, disappeared from the house in the morning of 19th May 1961. They did not return. He made a report of the matter on 21st May 1961 at police station Collectorganj Kanpur. Sri Kirpa Shanker another son of Sri Vijay Shankar Shukla was in service at Allahabad at that time and he got notices published in Northern India Patrika as well as Bharat about the loss of his two brothers A lady is said to have brought the two boys from Kanpur to Agra and when the matter was brought to the knowledge of the police, the the police got the two boys admitted in Shrimad Daya Nand Anathalaya on 28th May 1961. On 10th March 1962 Shri Vijay Shankar went to Agra, visited the Anathalaya and found one of his sons Rajendra Prasad there and then he came to know about the whereabouts of his other son Munna. He then moved an application on 12th March 1962 before the Magistrate for delivery of the child. The Magistrate, however, in his discretion decided that the child should not be allowed to live with either Sri Shankar Lal or Sri Vijay Shankar the competitive fathers of the boy. but that he should be kept in the custody of a third person. Vijay Shankar, therefore, filed his suit for a declaration that he was the father of the boy in question and was entitled to his custody. Injunction was also sought to direct Shankar Lal to deliver the child to Sri Vijay Shankar Shukla The written statement filed on behalf of Babu Lal Sharma and the Manager Shrimad Daya Nand Anathalaya in the suit of Shankar Lal disclosed that the two boys Rajendra Prasad and Ravindra Prasad were admitted in Shrimad Davanand Anathalaya. Agra on 28th May 1961 For a long time, nobody turned up to claim the children and as Babu Lal Sharma defendant no 2 was in need of adopting a son for himself, the Anathalava authorities agreed to give Ravindra Prasad in adoption to Sri Babu Lal Sharma Ceremonies of adoption were performed and the child in question was given to Babu Lal. He donated a sum of Rs. 501.00 to the Anathalay. The Manager Anathalaya in his written statement admitted that the child in suit was the son of Vijay Shankar Shukla. It was denied that Sri Shankar Lal was the father of the child. On the basis of adoption, Sri Baboo Lal claimed to be entitled to the custody of the boy. ;