SHIV NARAIN Vs. RAJI

JUDGEMENT

(1.) THIS second appeal has been filed against the judgment and decree passed by the learned District Judge, Jodhpur on Mar. 30, 1968 and arises in the following circumstances.

(2.) ONE Chaturbhuj had four sons, Sitaram, Ramlal, Kriparam and Daya -ram. Sitaram had a son Chhotu, while Dayaram had a son Salehraj and Ramlal died issueless. Kriparam had two sons Nenji and Bastiram. Shivnarain and Laxminarayan plaintiffs are the sons of Nenji, while their third brother Ganeshlal is said to have gone in adoption to Ramlal. Bastiram left his widow Smt. Gauri, a son Arjunsingh and five daughters including Omkumari and Smt Raji defendants. Arjunsingh who was unmarried, died on July 17, 1952, leaving two houses situated in Mohalla Khanda Falsa at Jodhpur. After the death of Arjunsingh, the plaintiffs Shivnarain and Laxminarain asserted their claims in, respect of the estate of Arjunsingh deceased on the ground of being his nearest heir, as they were Arjunsingh's uncle's sons. In one of the houses, the upper storey was in possession of the plaintiffs, while the lower portion of the said house was in the possession of the defendants Smt. Omkumari and Smt. Raji, sisters of Arjunsingh. It was alleged in the plaint that after the death of Arjunsingh, the defendants occupied the lower portion of the house. The plaintiffs also obtained a letter of administration in respect of the property of Arjunsingh deceased from the court of District Judge, Jodh -pur. But as the defendants refused to vacate the lower portion of the house in their possession in spite of notice, the plaintiffs filed a suit for recovery of possession and for mesne profits.

(3.) THE plaintiffs have filed this second appeal in this Court and it is urged by the learned counsel for the plaintiff -appellants that the adoption of Nenji, father of the plaintiffs by Smt. Sara, widow of Poonamchand, was a myth and that there is no evidence on record to establish the identity of the person, who is said to have been adopted by Smt. Sara, as the father of the plaintiffs. Mr. Hastimal, appearing for the defendant -respondents, on the other hand, supported the judgment of the first appellate court on the question of adoption of Nenji, father of the plaintiffs, by the widow of Poonamchand. He also argued that the custom set up by the defendants is fully proved by the evidence on record. It was lastly contended by the learned counsel for the defendant -respondents that the defendants Omkumari and Smt. Raji were in possession of the disputed property as maintenance holders from the time of their father Bastiram and on coming into force of the Hindu Succession Act, they have become full owners of the said property,