D. Raju, J. -
(1.)The unsuccessful plaintiff, who lost before the trial Court but able to get relief before a learned single Judge of the High Court, has originally filed the above appeal, having once again lost her claims before a Division Bench of the Madhya Pradesh High Court. The plaintiff-Bajrangi filed the Suit Case No. 1-A/77 civil on the file of the District Court, Morena, for declaration of title and recovery of possession of the suit property which is a house situated at Shyopur Kala city, more fully described in the plaint. The suit originally was filed against three persons M/s. Jagannath who claimed to be the adopted son and Shankarlal and Badruddin, the tenants. After the death of Jagannath his legal heirs have been brought on record. On the demise of Shankarlal also, his legal heirs have been brought on record. Though the suit filed as early as on 12-10-68 was disposed of on 22-12-78, on an appeal before the High Court, the matter was by an Order dated 21-1-83 remanded to the trial Court. During the remit proceeding on the application of the plaintiff, the heirs of Shankarlal and Badruddin were deleted from the array of parties. The remand order was said to have been with a direction to consider all the materials on record, after hearing the parties afresh, with no right to produce any fresh material. The suit came to be dismissed by a judgment dated 19-3-83. Thereupon the plaintiff pursued the matter on appeal in first appeal No. 25 of 1983 before the High Court and a learned single Judge by a judgment dated 6-10-89, while allowing the appeal decreed the suit and directed the defendants to put the plaintiff in possession of the portion claimed. Aggrieved, the respondents filed LPA No. 8 of 1990 and the Division Bench by a judgment dated 27-11-94 allowed the appeal and ordered the dismissal of the suit. Hence, this appeal.
(2.)The case of the plaintiff was that the suit property originally belonged to Gendilal and that he died on 8-1-1966, leaving behind Gopali, his wife said to have been married even before 1934 and the plaintiff Bajrangi was claimed to be the daughter born in the year 1934. Gopali, the mother was said to have executed a gift deed in favour of the plaintiff on 18-5-66 and that she came into possession thereon and continued to be so even after the death of Gopali, as full owner thereof. According to the plaintiff Jagannath forcibly dispossessed her on 17-8-66 though he had no right to the property and he is not the adopted son of Gendilal, as claimed, since there was no adoption in accordance with law. The defendant-Jagannath claimed that he had been adopted by late Gendilal on whose death the house property in question divided on him. According to the defendant Gopali had been first married to one Chataru who was alive and the said marriage was subsisting when she married Gendilal and such a marriage was not recognized in law or under any custom recognized by the caste to which they belonged and consequently not only the entire property of Gendilal devolved upon him, but even the gift deed said to have been executed by Gopali in favour of the plaintiff is ineffective and will not convey and right in the property to the plaintiff.
(3.)The learned trial Judge, after remand by the High Court, considered the matter afresh and held that Gopali was not the married wife of Gendilal and Bajrangi came along with Gopali and therefore was not the daughter of Gendilal. The trial Court also held that the plaintiff has not established that herself and Gopali were legal heirs of Gendilal and came into possession of the property. It was also specifically found that Jagannath and his heirs alone were in possession of the property. The deed of gift dated 18-5-66 though was held to have been executed by Gopali in favour of plaintiff, was found to be ineffective. The plaintiff also was held to have failed to substantiate that the tenants were paying rent to her or that in her absence the defendant-Jagannath broke open the lock and entered into forcible possession. The claim regarding adoption was also found in favour of the defendants. The suit, therefore, came to be dismissed. The learned single Judge in the High Court was of the view that Gopali was married to Gendilal on the basis of Ex. P-4 (certified copy of deposition of Gopali before Naib Tehsildar on 17-10-69) considered to be relevant under Section 33 of the Evidence Act. Based on the said version and Ex. P-7 certain statements, it was also held that Bajrangi was the daughter of Gendilal. The learned single Judge also held that the claim of adoption of Jagannath by Gendilal was not sufficiently proved and established. In view of the above, on the death of Gendilal the suit property was held to have devolved upon Gopali and the plaintiff and that by virtue of the gift deed dated 18-5-66, the plaintiff was held entitled to the property. While allowing the appeal the suit was decreed as prayed and the defendants were directed to put the plaintiff into possession of the suit property. On further appeal before the Division Bench by the defendants, it was held that no presumption can be raised about the marriage of Gopali with Gendilal, on the evidence on record and that the plaintiff failed to prove that there was valid marriage of Gopali, the mother of the plaintiff with Gendilal. As to the parentage of the plaintiff it was held that plaintiff has not established that she was born to Gopali through Gendilal and per contra the other evidence including her own admission that when he mother Gopali went to Gendilal, she was a child, belied any such claim. So far as the parentage of the defendant Jagannath who claimed to be the adopted son of Gendilal was concerned the Division Bench, held that there was no evidence on record to prove the factum of actual adoption in accordance with law and that the 1st defendant at any rate could not have been validly given in adoption by his mother after her remarriage, the 1st defendant being her son through her first husband. Consequently, the suit came to be dismissed, while allowing the appeal and setting aside the judgment of the learned single Judge.