Sharma, J. - (1.) THIS is the plaintiff's second appeal against the appellate judgment and decree of the learned Additional Dist. Judge, Alwar, who set aside the decree of the Munsif Alwar in a suit for joint possession over certain property and declaration that the defendant No. 1 Sarwansingh was not an adopted son of Nahansingh deceased, and that the plaintiff was the owner of one half share in the property left by the deceased. The plaintiff's case is that according to the following pedigree he, along with Nahansingh is the nearest collateral of Nahansingh & was therefore entitled to one half of the property left by the deceased: - Dulesingh Kansingh Arjunsingh Nahansingh Died issueless) Deft. No. 2 Budhasingh (died issueless) Deepsingh plaintiff Kishansingh Sarwansingh Deft. No. 1 Madansingh Vijeysingh
(2.) IN March, 1939, the defendant No. 2, taking advantage of his Lambar-dari, got the name of his son Sarwansingh defendant mutated over the whole of the property of Nahansingh, falsely alleging him to be the adopted son of Nahansingh. The plaintiff was, therefore, entitled to joint possession of the property in suit along with Nahansingh, on a declaration that he was entitled to one half of the property of the deceased and that Sarwansingh was not the adopted son of Nahansingh. The defendant Sarwansingh, who is the main defendant, pleaded, inter alia, that he was validly adopted by Nahansingh and that the suit was time barred The learnel Munsif Alwar decided both these points in favour of the plaintiff and decreed the suit. On appeal, however, the learned Addl. Dist. Judge, Alwar, while agreeing with the first court on the point of limitation, disagreed with it on the point of adoption, and held that, under the circumstances of the case, the burden of proof that Sarwansingh was the adopted son of Nahansingh lay on the plaintiff and he has failed to discharge it. He consequently accepted the appeal and dismissed the plaintiff's suit. The plaintiff has come in second appeal to this court. The learned counsel for the appellant has argued that the burden of proof that Sarwansingh was validly adopted by Nahansingh was on the defendant, and the lower appellate court's judgment is vitiated by an error of law in as much as he wrongly placed the burden of disproving adoption on the plaintiff. It was argued that according to the pedigree given in the plaint, the plaintiff and Nahansingh, defendant No. 2, were in the ordinary course heirs of Nahansingh. The defendant wanted to displace the natural succession by alleging the adoption by Nahansingh. The burden was on the defendant and the lower appellate court ought to have considered the evidence with this angle. It. however, took altogether an erroneous view of the burden of proof in the case and held that the plaintiff's evidence fell short of discharging the burden which lay upon him. On behalf of the respondents, the view of the learned lower appellate court was not seriously supported, but it was argued that even if the burden had been wrongly placed upon the plaintiff, the learned Addl. Dist. Judge had weighed the evidence of both the parties and given the finding that the adoption was proved. Under these circumstances his finding of fact cannot be challenged in second appeal. On behalf of the respondents the decree of the lower appellate court has been supported on yet another grouad which was decided by the lower appellate court against the defendant i. e. the ground of limitation. It was argued that under Art. 118 of the Limitation Act, the limitation for having an adoption declared void is 6 years from the date when the adoption first becomes known to the plaintiff. According to the plaintiff himself the mutation was made in favour of Sarwansingh on 21 st March 1939. Therefore, the suit, which was brought on 28th August 1945, was more than 6 years after the adoption became known and was consequently time barred. It was also argued that the possession of the property in suit was taken by Sarwansingh long before mutation and more than 12 years before the suit. Therefore, even if Art. 118 of the Limitation Act does not apply to the suit, it was barred by 12 years' rule of limitation under Art. 144 of the Limitation Act. To take up the point of limitation urged by the learned counsel for the respondents first, Art. 118 of the limitation act runs as follows. "to obtain a declaration that an alleged adoption is invalid, or, never, infact, took place. . . . . . . . . 6 years When the alleged adoption becomes known to the plaintiff. Thus it applies to a suit for declaration. The present suit is not a suit for declaration, although it has also been prayed as an incidental relief that the plaintiff is the owner of one-half share of the property left by Nahansingh and Sarwansingh is not the adopted son of Nahansingh. In I. L. R. 28 Addl. 727 (Tribhuwan Bahadur Singh vs. Rameshwar Singh), the defendant alleged that in 1858 he had been adopted by a Hindu widow, a Talukedar, in his own right, to whom a Sanad had been granted and whose name had been entered in lists 1 & 2 under Act I of 1872. In 1873, he brought a suit against her for possession of the Talluk, in which the question of the validity of adoption, which was denied by the widow, was the main issue, and was decided in 1878 against the defendant who preferred an appeal to the Privy Council, which was dismissed on his failure to deposit security for costs. The widow died on 13th November 1893. On 27th May 1899, the plaintiff while attaining majority in June 1896, brought a suit for possession of the Talluk, claiming to succeed as next heir of his grandfather, who was the eldest brother of the widow. The defendant, who was in possession, relied on his title under the adoption. Their Lordships held that the suit was not barred by limitation. After the said decision of Privy Council, the Madras High Court held in Margnna vs. Veeriyya (I. L. R. 38 Madras 308) that Art. 118 would apply only to the declaratory suits. The Bombay High Court, however, inspite of the said decision of the Privy Council as) well as of that tribunal in Mohammed Umar Khan vs. Mohd. Niyazuddin, held that Art. 118 would apply to suits for possession also, while almost all the High Courts took the opposite view, vide Sehdeo Narain vs. Kusum Kunwar (1918, 46 Indian Gases 929 Patna), Shiv Deo vs. Ram Prasad (1924 I. L. R. 46 Alld. 637), Ramlal vs. Murtakoer (1923, 75 Indian Cases 676 Alld. ). Later on, however, even the Bombay High Court in a Full Bench decision in Doddawa vs. Yellowa (I. L. R. 46 Bom. 776) held in accordance with view of other High Courts that this Article would not apply to the suits for possession of immovable property on the strength of the decision of the Privy Council referred to in Tribhuwan vs. Rameshwar and Mohammad Umar Khan vs. Mohammad Niyaz Mohammad Khan. The Privy Council in Kalyan Dappa vs. Chambasappa (I. L. R. 48 Bom. 411) has set at rest the conflict on this matter and has clearly held that a suit for possession of immovable property by a reversioner on the death of a Hindu female would be governed only by Art. 141 and not by Art. 118, as Art. 118 refers only to suits for a declaratory decree. In view of the established law, therefore, that Art. 118 or 119 applies only when the suit is to obtain a declaration that an alleged adoption was invalid, or never in fact took place or that an adoption was valid, and not to the suits for possession, although the question of validity or invalidity of adoption has incidentally to be gone into to award a decree for possession, both the lower courts were justified in over-ruling the defendant's plea that the suit was barred by Art. 118 of the Limitation Act. I, therefore hold in common with the lower courts that Art. 118 is no bar to the present suit. Again, coming to the question whether the suit was barrel by Art. 144 of the Limitation Act, as urged by the learned counsel for the respondents, it is enough to say that according to the plaint the defendant No. 1 took possession when his name was mutated on 21st March 1939. If the defendant wanted to prove that the possession took place earlier, he ought to have proved that allegation. He failed to prove it. It cannot, therefore, be held that the possession of the defendant No. 1 became adverse to the plaintiff more than 12 years before the suit. The contention of the learned counsel for the respondents has, therefore, no force on this ground. Coming now to the point of adoption, there is no doubt that the plaintiff had to prove prima facie that he was entitled to a half share in the property left by Nahan Singh. This he proved by giving the pedigree which was admitted by the defendants, with this exception that Sarwansingh was alleged to be the adopted son of Nahansingh. After the plaintiff had proved that in the natural course of succession he was entitled to one-half share in the property of the deceased, it was for the defendant to prove that the natural order of succession was upset by the adoption of Sarwansingh by Nahansingh. After the defendants had failed to prove that fact, there was no answer to the plaintiff's claim. The learned Addl. Dist. Judge himself has held that the rulings reported in 34 Calcutta Weekly Notes 369, (Balak Ram High School Balipae vs. Nanua), A. I. R. 1930 Lahore 579, and (Lal Hari Har Partab Bux Singh & another vs. Thakur Bajrang Bahadur A. I. R. 1937 PC. 242, were the authorities for the proposition that the onus of proof of adoption rests upon the person who seeks to displace the natural succession of property by the act of adoption. The Lahore ruling quoted by the Addl. Dist. Judge says that a very grave and serious onus rests upon any person who seeks to displace the natural succession of property by an act of adoption. In such a case the proof requires strict and almost severe scrutiny. The lower appelate court, however, held that in view of the fact that the mutation was made in favour of the defendant, the burden to disprove the adoption was on the plaintiff. I do not think that in this view the learned lower appellate court was right. As I have said above, in the circumstances of the case, the plaintiff's duty ended so far as the question of his right was concerned when he proved his natural relationship to the deceased. If there were no adoption, the plaintiff was undisputedly entitled to succeed. The defendant wanted to displace the natural succession by setting up the case of adoption. The burden of proof according to the authorities cited above, was on them. All though, the finding of the lower appellate court, as regards adoption, is a finding of fact, yet it has been arrived at on an erroneous view of law as to burden of proof in such cases. It can therefore be challenged in second appeal vide A. I. R. 1932 P. C. 28 (Jugesh Chand Boy vs. Imdad Miz), wherein their Lordships have held that the finding of fact based on the failure of a party to discharge the onus of proof, which the first appellate court wrongly held to be incumbent on him, is not a finding on a positive evidence and is not binding in second appeal. It was argued by the learned counsel for the respondents that as the finding of the lower appellate court has been given on a consideration of the evidence produced by both the parties, the question of burden of proof is immatar-ial. I, however, find from the judg-ment of the lower appellate court that it has examined the evidence of the parties with this angle that the onus of disproving the adoption lay on the plaintiff. It makes all the difference when a court examines the evidence with a view that the burden lies upon a party, on whom it does not actually>ie. The concluding paragraph of the learned appellate court's judgment on the point of adoption, runs as follows:- "in the circumstances the finding of the learned Munsif on issue No. 1 cannot be affirmed and -a conclusion must be reached that the plaintiff was unable to discharge the onus of proving this issue which rested on him. " It is thus clear that from the start the learned Addl. Dist Judge proceeded to decide this issue on the assumption that it was the plaintiff's duty to negative the adoption and as such the finding on this point, though a finding of fact, is vitiated by a mistake of law and must be set aside. The learned counsel for the respondents himself has not very seriously contended that the finding of the learned lower appellate court is binding on this point in second appeal. I was, however, asked to go through the evidence myself and decide this issue. I do not think it is proper to decide question of fact myself without giving an opportunity to the lower appellate court to express its opinion on this point on a correct appreciation of law. The appeal is allowed, the decree of the lower appellate court is set aside and the case is remanded to it for decision of the appeal according to the propositions enunciated above. The costs of this appeal shall abide the result of the appeal in the lower appellate court after this remand. .;