R.L.ANAND, J. - (1.) THIS is a defendant's appeal and has been directed against the judgment and decree dated 4.8.1977 passed by the Court of Additional District Judge, Gurgaon, who accepted the appeal of the plaintiffs by setting aside the judgment and decree dated 2.3.1976, passed by the Court of Sub Judge Ist Class, Palwal who dismissed the suit of the plaintiffs with costs.
(2.) THE brief facts of the case are that S/Shri Ami Lal, Brij Lal and Smt. Bohati filed a suit for possession against Shri Nanak Chand son of Jiwan Lal defendant No. 1 by adding Kanhiya, Dharamvir and Smt. Kariya as defendants No. 2, 3 and 4 on the basis of the ownership and it has been averred by the plaintiffs that Smt. Bahali widow of Budhi son of Rupa was the owner in possession of the suit land mentioned in para No. 1 of the plaint and she died in the year 1964 and parties inherited her estate according to Hindu Succession Act, 1956 as per pedigree table given in para No. 2 of the plaint which is reproduced as follows :- The plaintiffs have further pleaded that Jiwan Lal, husband of Kariya and defendant No. 4 Smt. Kariya were very cunning person and after the death of Smt. Bahali both got sanctioned in mutation of inheritance in favour of their son Nanak Chand defendant No. 1 by projecting that he has been adopted by Smt. Bahali. This has been done in collusion with the Patwari. This act on the part of the defendant No. 1 is not binding upon the plaintiff as Smt. Bahali never adopted defendant No. 1 Nanak Chand as her son and therefore, Smt. Kariya defendant No. 4 is entitled to succeed only one-fifth share in the estate of Smt. Bahali and plaintiff and defendants No. 3, 4 and 5 are entitled to succeed the remaining 4/5th share. The plaintiffs have 1/5th share as a whole but after the death of Bahali defendants No. 1 and 4 had taken the possession of the suit land forcibly. They have further pleaded that the parties are Jats and are governed by custom and according to that the adoption cannot take place in the absence of ceremonies to be performed according to Dharam Shashtra and even no one can alienate the suit land without possession. The plaintiff called upon the defendants to admit their claim over the suit land but in vain. Hence the suit.
(3.) THE notice of the suit was given to the defendants. It was contested by defendants No. 1 and 4 only. The other defendants were proceeded ex parte. It was pleaded by the contesting defendants in their written statement that the suit is not legally maintainable because defendant No. 3 Dharambir was of unsound mind at the time of the filing of the suit. The defendants further pleaded that the suit is bad for non-joinder of necessary parties; the plaintiffs are estopped from filing the present suit on account of their own act and conduct as they had consented to the adoption of defendant No. 1 Shri Nanak Chand as son of Bahali who had been treating Nanak Chand as her son. Said Shri Nanak Chand is in possession of the suit land since 1956 and he was also in possession even during the life time of Smt. Bahali who died on 21.7.1964 as Smt. Bahali adopted Shri Nanak Chand as her son and performed all the relevant ceremonies and transferred the ownership and possession of the suit land to him in the month of December 1956 when the deed of adoption-cum- deed of gift was executed on 11.12.1956. It is was a registered document. It has been further pleaded that Smt. Bahali made a gift of the suit land and property in favour of her adopted son Nanak Chand in the month of December, 1956 and thereby transferred the ownership right and possession to him. The plaintiffs have no locus standi to challenge the same. It has also been pleaded by the defendants that parties are Jats by caste. All the ceremonies of adoption were performed at the time of the adoption. Further more the suit is not properly valued for the purpose of court-fee and jurisdiction. With this defence, the defendants/contesting defendants prayed for the dismissal of the suit.;