Decided on July 05,1935



- (1.) THE facts material for our purpose in this second appeal are these.
(2.) IT arises from a suit for possession of certain land that once belonged to a joint family consisting of three brothers, Ramrao, Subhanrao and Vishwasrao, They had a step-brother named Ganpatrao, but he was separate from the rest of them. Ramrao died first, and then Subhanrao. The evidence is not as clear as one would like it to have been as to what happened to Vishwasrao. The plaintiffs, who are the descendants of Ganpatrao and are claiming the property as collateral heirs, have alleged in their plaint that he was unheard of. after the death of Subhanrao and had not been heard of for twenty-five years before they brought their suit in 1928. But defendant No. ' 4, who is the son of one Vinayak, alleged to be adopted by the widow of Ramrao in 1908, says in his written statement that at the time of his adoption the estate had vested in his adoptive mother Sakhubai. No reference was made to Vishwasrao expressly, but it was clearly implied that at the time of the adoption he was dead ; otherwise of course the estate could not have vested in Ramrao's widow. Not only that, but defendant No.5, who is both the natural uncle and the tenant of defendant No.4, has stated in his evidence (exhibit 42) that at the time of the adoption none of Ramrao's brothers was living. The only other piece of evidence is a statement made in the plaint of a previous suit brought by the plaintiffs in 1903 (exhibit 58), to the effect that at the time of the adoption Vishwasrao had become a sanyasi and was civilly dead. The trial Judge has found as a fact that after the civil death of Vishwasrao, the succession to the estate of Ramrao's branch went to the sons of the step-brother Ganpatrao. He has also found that Sakhubai was the widow of Ramrao " surviving alone in the joint family of Ramrao's branch on the date of adoption ". IT may be doubtful whether Vishwasrao was civilly dead or physically dead, but, at any rate, we must take it as a finding of fact based on the admissions of the parties at the trial that Vishwasrao survived Ramrao and Subhanrao and then died before the date of the adoption. According to the finding of the Court of first appeal, the estate remained in the possession of Ramrao's widow Sakhubai, in spite of the adoption, until her death in 1928. The adopted son Vinayak died in the same year, leaving a son defendant No.4. The plaintiffs then brought a suit to recover possession of the property. Defendants Nos. 1, 2 and 3 are other descendants of Ganpatrao having the same interest as the plaintiffs but made formal defendants. Defendant No.4, as I have said, is the son of the adopted son. Defendant No.5 is a tenant. The suit was contested by defendants Nos. 4 and 5 on the ground that the adopted son was entitled to the estate, on the ground of an alleged family arrangement, and on the ground that the adopted son had acquired title by adverse possession. The trial Judge held on the material issues that the adoption set up by the defendants was illegal and invalid, that the alleged family arrangement was not binding on the plaintiffs, and that the plaintiffs and defendants Nos. 1 to 3 would have been entitled to the property as reversionary heirs had their claim been in time. He held, however, that the claim was time-barred and that the defendants had become owners by adverse possession.
(3.) ON appeal to the District Court, the only point argued before the Assistant Judge was that of limitation. ON that issue he differed from the trial Court. He held that the defendants had not established adverse possession, that Sakhubai and not the adopted son had been in possession, and that her possession was permissive and not hostile to the plaintiffs, who were entitled to recover the property. In second appeal two points have been argued : (1) that the adoption of Vinayak by the widow of Ramrao was valid, and (2) that the decision of the Court of first appeal on the issue of adverse possession is erroneous.;

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