Sharma, J. - (1.) THESE are two appeals, one by the plaintiff appellant and the other by the defendants Pannalal and Chhauiram, against the judgment and decree of the learned Additional District Judge, Alwar. The plaintiff's appeal is No. 326 of 1949. They arise out of a suit by the plaintiff Ramjilal against Pannalal and Chhajuram and their father Bhonduram who is the proforma respondent in the defendant's appeal. It was brought on the allegation that a house in Moholla Khapata-pari given in the sketch Ex. P. 1 attached to the plaint was the ancestral house of the parties. In the said house the portion shown in yellow colour was the plaintiff's share & portion in brown colour was of the share of defendants No. 1 to 3. Besides the portion in yellow colour a Kothri No. 1 and the roof No. 2 both shown in red also belonged exclusively to the plaintiff. This Kothri was temporarily given to the defendant No. l. to 3 for use on the occasion of the marriage of Pannalal defendant No. 2. A Poli No. 3 and a Tiwara No. 4 with a Takhat like Silla and a stair case all shown in red colour in sketch were the joint property of the parties. The defendants No. 1 to 3, however, mortgaged with possession all the property shown in the red colour describing it to be their exclusive property in favour of Moolchand and Ram Prasad defendants No. 4 and 5 on 5th August, 1949. The plaintiff, therefore prayed for a declaration that the Poli & Tiwara with Takhat like Silla and the stair case mentioned above was the joint property of the plaintiff and the defendants No 1 to 3. So far as the Kothri No. 1 and the roof No. 2 is concerned he prayed for recovery of possession. As regards all the property in suit he prayed that the mortgage deed dated 5. 8. 40 be declared to be void and ineffective as against the plaintiff.
(2.) THE defendants No. 1 to 3 in their written statement denied that the plaintiff had any right or share in the property in dispute. THEy pleaded that the property was their exclusive property and the mortgage deed of 5. 8. 40 was valid and effective. The learned Munsif Alwar, who tried the case, gave the declaration sought for, so far as the Poli and the Tiwara with Takhat like Silla and stair case were concerned. He, however, dismissed the plaintiff's claim as regards the Kothri No. 1 and the roof No. 2. Against this decree of the learned Munsif the plaintiff filed an appeal as regards the Kothri No. 1 and the roof No. 2. The defendants No. 1 to 3 also filed an appeal so far as the Poli and Tiwara with Silla and stair case were concerned. The learned District Judge, Alwar, by his judgment dated 8. 7. 46 dismissed the appeal of defendants No. 1 to 3 He, however, partly allowed the plaintiff's appeal in as much as he gave a declaration that the Kothri No. 1 was the exclusive property of the plaintiff No. 1 and the mortgage deed dated 5. 8. 41 so far as it related to the Kothri was void and ineffective against the plaintiff. The plaintiff and the defendants No. 1 to 3 both went further in second appeal. The High Court at Alwar decided both the appeals by a single judgment dated 22. 2. 47. The defendants' appeal was dismissed so far as it related to Poli and Tiwara with Silla and stair case but allowed so far as the Kothri was concerned and the case was remanded to the District Judge with the direction that he should hear and decide the appeal as regards the Kothri in the light of the observations made in the judgment. The plaintiff's appeal so far as it related to roof No. 2 was dismissed but as regards Kothri it was held that the plaintiff should be awarded exclusive or joint owner thereof. On remand both the appeals were heard by the Additional District Judge, Alwar, who by the judgment dated 29. 11. 48 has dismissed the appeal of defendants No. 1 to 3 but has partly allowed the plaintiff's appeal in as much as holding that the plaintiff was the joint owner of the Kothri along with defendants No. 1 to 3, has given a decree for joint possession to the plaintiff. Against this judgment and decree both the parties have appealed to this Court. They are both being decided by this judgment. For the sake of convenience the appellant of the appeal No. 332 and the respondent of appeal No. 326 will be referred as plaintiff and the appellants of appeal No. 326 and the respondent of appeal No. 332 will be referred to as the defendants. The Kothri No. 1 which alone is in dispute, in both the appeals, will be referred to as the Kothri. Before discussing further it would be profitable to give the pedigree of the family of the plaintiff and the defendants so far as it is admitted by both. Khushaliram Ramchandra Devkaran Gabduram (issueless) Thandiram Saligram Bonduram Isaram | | Sedmal | | Bhulliram Nanagram Motiram Udairam Ramjilal Kundanmal Chhajuram Makhanlal Taking up the -appeal of the plaintiff first, it was argued by the learned counsel that the learned Additional Judge was wrong in not admitting certain documents and not framing any issue on the point of adoption of Buliram, the father of the plaintiff. It was argued that the plaintiff filed an application as early as 1st November, 1944, in the court of the Munsif for permission to file inter alia a copy of the judgment in case No. 60 of 1914 decided on 18. 4. 1915 by the Finance Minister, Alwar, relating to the Muafi of Udairam Sedmal in village Jariyana. It was ordered by the Munsif that the defendants be awarded Rs. 25/- as costs. These costs were paid on 2nd December 1944, yet the permission was refused on 17. 1. 45. In the appellate court also he made an application dated 16. 9. 47 praying for permission to file the came document but it was refused on the ground that the plaintiff had not taken a ground in this respect in his memo of appeal and that High Court had not authorised him to admit any additional evidence. It was contended that the said documents show that Bulliram was adopted by Motiram and the question of Bulliram's adoption by Motiram had acquired great importance in the light of the High Court's decision. It was also pressed that the framing of an issue on the point of said adoption had also become very important, after the said decision. I have very carefully considered both the questions. Both the points raised by the plaintiff lose their importance when I find that the plaintiff never pressed the question of adoption of Bulliram by Motiram before the various courts, upto the High Court, before the case was remanded to the District Judge by the Judgment of the High Court dated 22. 2. 47. If the plaintiff thought that Bulliram had been validly adopted by the Motiram, he ought to have clearly said so in his plaint. He did not do it. While in their written statements the defendants clearly denied that Motiram was the real grand father of the plaintiff and the plaintiff was the exclusive owner of Motiram's property, the plaintiff did not take care to have an issue framed on this point. All that he did was to say in his own statement that Bulliram was adopted by Motiram, although the adoption and the plaintiff's claim in the Kothri were negatived by the first court. He neither raised a ground of appeal in the appellate court that Bulliram was adopted by Motiram nor, as appears from the judgment, did he press this point before the court. On the contrary, it appears from that judgment that both the parties conceded that Motiram died issueless. The claim to the Kothri was pressed before the appellate court on the ground that the plaintiff's grand father Udai-ram and M3tiram were joint. When the appeal was filed in the High Court no reliance was placed upon the alleged adoption before the High Court. The learned Chief Justice who decided the appeals in the High Court, clearly says "nor was this question (question of adoption) raised before me. " Note - The words in brackets are mine. Before the High Court, too, stress was laid upon Motiram living jointly with Udairam, It was, therefore, too late in the day to press for admission of the document, and the framing of issue on adoption before the appellate court after remand. I do not think that the learned appellate Judge was wrong in refusing the admission of the document or the framing of the issues. It was argued that the necessity of the question of adaption of Bulliram by Motiram arose in the light of judgment of the High Court. I have read the judgment through and through but fail to find that there is anything in it which warrants the admission of the document or framing of the issues on the point of alleged adoption at such a late stage. The learned Additional District Judge has referred to a statement of the plaintiff himself dated 18. 11. 40 before Nazim, Alwar, certified copy of which, Ex. D was filed by the defendants. It clearly negatives the alleged adoption. The plaintiff has clearly stated therin that Motiram and his brother Nangram both died issueless but the Dastarbandi of both was made in favour of Bulliram. As held by the learned Judge, Dastarbandi is not the same thing as adoption. It is absurd to conceive of a valid adoption of a single boy by two persons. In the Shajra given in that statement Bulliram is shown as the son of Udai-ram and not as an adopted son of Motiram. In the face of all the circumstances of the case and the evidence on record it was useless to frame an issue on the point of adoption and admit judgment of Finance Minister which could not have any binding effect on the defendants on the point of adoption. Apart from the question of adoption of Bulliram by Motiram it was argued that Motiram and Udai-ram were joint and therefore Udairam became exclusive owner of the property by right of survivorship after the death of Motiram. It was admitted that Motiram and Udairam were once divided. It was, however, urged that they afterwards reunited. If that were so, the plaintiff should have set up and proved the reunion. There is, of course, a presumption about the jointness of a Hindu family but there is no presumption about reunion, once a family has been divided. It has not been proved that there was reunion between Udairam and Motiram. It may be that the one or the other of the parties might be in possession of either the whole of the property of Motiram or a major portion of it. But that does not necessarily show that there was reunion between Motiram and the party which held possession over this property. The case of reunion dots not stand also in view of the fact that Motiram and Udairam were cousins and according to the Mitakshara which governs the parties, there can legally be no reunion between cousins. One of the co-owners may remain in possession of the whole of the property belonging to himself and other co-owner, but it does not signify that he has become the exclusive owner thereof. It was argued that in 1947 there was an agreement Ex. P. 2 executed by defendant No. 1 in favour of Bulliram in which it is recited that the defendant had 1/3rd share in the property. First of all, if Motiram was living at that time, the defendants would have naturally one third share, but even if he were dead, this mere recital could not deprive the defendants of the share in Motiram's property. It has already been decided by the High Court at Alwar that the case of the alleged license was not proved. The plaintiff's case on that ground has no force. To my mind, the plaintiff's appeal has no life and it must be dismissed. Coming to the defendant's appeal, it was argued that the Kothri was mortgaged by their ancestors along with the other property in 1875. This mortgage was redeemed by the plaintiff in about the year 1917 and the property put in possession of the defendants in 1923, on payment of mortgage amount. First of all it is not clear that the Kothri was also mortgaged, in 1875, but even if it were taken to be the fact that alone will not make the defendants exclusive owners of the Kothri. According to the pedigree the plaintiff and the defendants are both entitled to a moiety share in the Kothri. The defendants' case of an oral compromise, by which they became sole owners of the Kothri has not been believed by the lower courts. There is no justification in going against this finding of fact in second appeal. There can ordinarily be no question of adverse possession between co-owners, nor have the defendants set up the case of adverse possession in their written statement. The learned Additional District Judge was perfectly justified in holding that both the parties were joint owners of the property and that the plaintiff be given joint possession thereof. Both the appeals are dismissed, but in the circumstances of the case, the parties shall bear their own cost of both the appeals. A copy of this judgment be placed on the file of the connected appeal. . ;