SHESHRAO Vs. SHESHRAO

JUDGEMENT

(1.) THIS appeal is filed by the plaintiffs against a decree passed by the Additional district Judge, Betul in Civil Appeal No. 6-A of 1951 reversing the decree of the trial court in civil suit No. 13-A of 1949 in the court of the Civil Judge Class II multai.

(2.) THE suit giving rise to this appeal was filed by the appellants for possession of A house measuring 100 cubits by 60 cubits at Multai. The case of the plaintiffs is that this house was the property of one Bapuji who died issueless on 2-4-1917. His widow Radhabai died on 18-12-36. Plaintiff No. 1 is the son of Diwakarrao, brother of Bapuji. He claimed to have been adopted on 6-1-1937 by Sumitra Bai, widow of Diwakarrao. After Bapuji's death his widow remained in possession of his estate during her life time. After her death plaintiff No. 1 as nearest successor claimed to be the owner of the house in suit. The defendants are alleged to be in possession of the house in suit without any right and in spite of a demand made by plaintiff No. 1 they refused to vacate. Plaintiffs 2 and 3 have been joined in this suit as sagotras of Bapuji and, if on account of any reason plaintiff No. 1's adoption is declared to be illegal then the plaintiffs as the nearest sagotra sapindas within seven degrees of Bapuji are entitled to get possession of the house.

(3.) THE defendants merely admitted that they were in possession of the house and disputed all other averments made by the plaintiffs. According to them Bapuji and diwakarrao were governed by the Benares School of Hindu law and the adoption, if any, was invalid because Diwakarrao gave no authority in that behalf to his widow. The defendants claimed that they and their father, Tuka Ram, were in adverse possession of the house and had thereby perfected their title to it. They also alleged that in 1925 Radhabai by means of a Samkalp on the bank of Tapti on the Kartik Purnima had gifted the house to Tuka Ram, a very small portion of the property in her possession. They thus denied the plaintiffs' claim. 3a. The trial court found that Bapuji and Diwakarrao were Malvi brahmins governed by the Benares School of Hindu law and though Sumitra Bai took plaintiff no. 1 in adoption the same was invalid and ineffective for the reason that the plaintiffs failed to prove that Diwakarrao had given authority to his widow to adopt.