- (1.)This second appeal by the plaintiff against the appellate decision of the learned Additional Commissioner, Jaipur dated 12.2.1960, arises form the following facts: - -
(2.)The plaintiff filed a suit in the court of the Assistant Collector. Jhunjhunu for the ejectment of the defendant respondent as trespassers as well as for damages amounting to Rs. 180/ -. The averments made in the plaint were that the plaintiff was the adopted son of the deceased Jita Ram, who had adopted him sometime on Phagan Sudi Doj, Smt. 2002 and that ever since he had been living with him and after his death cam: in possession of the suit land as his heir. It was also stated that the respondents were the sisters son of the appellants deceased father is his adoptive and Dule Ram one of them used to assist the plaintiff appellants father in the management of the land in dispute. During the life time of the said Jita Ram the respondent had an evil eye on his land and other property, and had been trying to the plaintiffs deceased usurp and mis -appropriate the same by various dishonest means and with this object in view eventually succeeded in getting him murdered when the plaintiff was still a minor. The Respondent No. (1) also taking advantage of the minority of the plaintiff started cultivating the land in dispute himself without any authority. He was however subsequently arrested on a charge of murdering the adoptive father of the plaintiff, but in the meantime the other respondents in the like manner unlawfully took possession of the suit land. The plaintiff therefore prayed for their ejectment as trespassers and also for damages. In their written statement apart from other grounds on which the suit was resisted, one of the pleas taken was that the plaintiff was not the adopted son of the deceased Jita Ram nor did he inherit any property including this land as his adopted son and that therefore he could not bring this suit against the defendants. It was also stated that Dule Ram, Respondent No. (1) was adopted by the deceased and that he inherited his property including this land, was therefore, rightly in possession of it along with other respondents, who were his real brothers. The trial court framed several issues, out of which issue No. (3) and (5) with which we will be concerned in the present appeal.
(3.)Issue No. (3), whether Jitaram adopted Juglal plaintiff on Phagun Sudi Doj Smt.2002, and whether this adoption was valid. Issue No. (5). whether Dule Ram defendant was adopted by Jita Ram and was on this account lawfully in possession of the land as a khatedar khudkasth. As the trial court thought that a question of proprietary right was involved and also at the request of the respondents these two issues were referred to the civil court for a decision. The civil court sent a copy of its judgment in suit No. 205 of 1955, between these parties in which it had earlier decided whether the plaintiff or the defendant No. (1) was the adopted son of the deceased Jita Ram. Its finding was in favour of the plaintiff appellant and against defendant No. 1. Having obtained the aforesaid findings from the civil court the Assistant Collector examined the case on merits and in the result decreed the appellants suit for ejectment of the defendant as well as damages. Against this decree and judgment of the trial court dated 29.5.1959,an appeal was filed before the Additional Commissioner Jaipur. One of the grounds on which the appeal was contested was that the trial court was not justified in remitting the above two issues in the civil court as a question of proprietary right was not involved. Further even if it was so referred the correctness of the findings given by the civil Court could not be examined in appeal by the learned Additional Commissioner. These contentions found favour with the learned lower court. Accordingly he directed that the case be fixed for hearing on merits.
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