Gangeshwar Prasad, J. - (1.) THIS is a plaintiff's appeal and arises out of a suit for possession in respect of four shops and one third share in a house situate in Agra and for mesne profits. The following pedigree, which is not in dispute, will be of help in a proper appreciation of the facts of the case: DAYA RAM ____________________|____________________________________ | | | Lachman dead Balwant Dal Chand = Mst. Kaushaya | | ______________|_________________ | | | | Nathi Lal (dead) Panna Lal (dead) | | | _______________________________|________ | | | | Virender Nath Brijendranath | defendant no. 1 defendant no. 2 | | | | ________________________ ______________ |_______ | | | | | | | Narendra Sachendra Dharmendra Ravindra Nath Devendra Nath | | __________________________________________________ | | | | Kalawati Damodar Das Mst. Chameli (dead) (predeceased Dal Chand) =Ranchhordas =Pushpa Wati (dead) | | Arjunsingh (Plaintiff) Prem Wati It would be seen that Dal Chand had a son, Damodardas, and two daughters, Smt. Kalawati and Smt. Chameli. The case of the plaintiff, Arjun Singh, is that the property in suit was owned exclusively by Dal Chand and upon his death, which took place in August 1914, it devolved upon his two daughters because his son had predeceased him. Both the daughters, according to the plaintiff, were Pardahnashin ladies and they had been married outside Agra. The property was, therefore, being managed by Pannalal and Nathilal, nephews of Dalchand, on behalf of the two daughters. It has further been alleged that under an agreement dated September 2, 1914 the rent of the shops in suit, which were all in the occupation of tenants, used to be realised by Pannalal and Nathilal as agents of Smt. Kalawati and Smt. Chameli but the said agreement is not binding on the plaintiff. Smt. Kalawati is said to have died in 1925 and Smt. Chameli on April 30, 1944 and the plaintiff claims to have succeeded to the property after Smt. Chameli's death. It has also been stated by the plaintiff that Pannalal and Nathilal and, after their death, Pannalal's sons, Virendra Nath defendant No. 1 and Brijendra Nath defendant No. 2, had been rendering some slipshod accounts of the realisations made by them from the tenants and paying some petty amounts to Smt. Kalawati and Smt. Chameli but since the death of the two daughters the defendants had only been postponing settlement of accounts and, finally, they refused to hand over actual possession of the property in suit to the plaintiff. This state of thing is said to have compelled the plaintiff to institute the suit.
(2.) THE claim of the plaintiff has been contested by both the defendants. Defendant No. 2 has pleaded that the plaintiff is not the son of Smt. Chameli but of the second wife of Ranchhordas whom the latter married after the death of Smt. Chameli which took place in 1926, that Damodardas, who predeceased his father Dal Chand, had given direction to his wife to adopt a son and this direction was confirmed by Dal Chand; and that under the authority to adopt given to Smt. Pushpawati she duly adopted Brijendra Nath defendant No. 2 as a son to her deceased husband. He has also raised pleas of estopped, acquiescence and limitation. The allegation of the plaintiff regarding Pannalal and Nathi Lal having been in possession as agents has been repudiated and it has been asserted that Brijendra Nath defendant No. 2 has been in possession for over 35 years as owner. In the alternative it has been contended that Dal Chand died as a member of joint Hindu family and the property in suit was joint family property, with the result that after the death of Dal Chand it passed to the other co -parceners by survivorship and the plaintiff has no title to it.
(3.) DEFENDANT No. 1 has filed a separate written statement which follows the line of defence taken by defendant No. 2. The additional facts stated by him are that the property in suit was thrown into the common stock and has been treated as joint family property by all the coparceners and that under a will Dal Chand bequeathed some moveable property to Smt. Pushpawati and her daughter Premwati besides confirming the authority to adopt given to Smt. Pushpawati by her husband, Damodar Das. The learned Civil Judge framed the following issues on the basis of the pleadings of the parties and the statement of their counsel under Order 10, Rule 2. Civil P.C.: "1. Whether the plaintiff is the son of Mst. Chameli daughter of Dal Chand as alleged? 2. Whether Dal Chand died as a separate member as alleged by the plaintiff and whether property in suit is his self -acquired property as alleged? 3. Whether the defendant No. 2 was adopted by the widow of Damodar Das deceased as alleged and whether the adoption was valid? 4. Whether the suit is under -valued and the court -fee paid is insufficient? 5. Whether the suit is barred by time? 6. Whether the suit is barred by estopped and acquiescence? 7. Whether the suit is bad for non -joinder of necessary parties? 8. Whether the plaintiff is entitled to mesne profits, if so, at what rate? 9. To what relief, if any, is the plaintiff entitled - ;