- (1.) THIS second appeal arises out of a suit for possession of a shop, situated in Dhan Mandi in the town of Phalodi.
(2.) THE case of the plaintiffs was that they were owners of the shop in dispute. As the tenant Chandan Mal denied the title of the plaintiffs and claimed that he was a tenant of Shrimati Dhanni, they filed a suit for ejectment against him which was dismissed on the ground that the relationship of landlord and tenant was not proved between the parties. An appeal filed by them met the same fate and in second appeal this Court observed that in the absence of the relationship of landlord and tenant between the parties, the plaintiffs could seek a remedy by means of a separate suit to establish their title, if they thought that they had a title to the property in dispute. THE present suit for possession was, therefore, filed by the plaintiffs on May 16, 1960 against Chandan Mal and Snot. Dhanni Bai. The plaintiffs and Shrimati Dhanni Bai are descendants of a common ancestor, Girdharilal. The pedigree of the parties is as under : - Girdharilal Thakursi Bhawarsi Rajuji Igyaram Parwati (widow) Hazarimal Punji (Pannalal) Shivnarain Jaikishan Mishrilal Lunji Magji Punji (went in adoption) Shrikishan Sunder lal Devilal Gopilal Rampratap Premsukh Pltf. No. 1 Moolchand Pltf. No. 2 Jethmal Badrilal Pltf. No. 3 Jamnalal Pltf. No. 4 Dhanni (widow) (Def. No. 2) Poonamchand Pltf. No. 5 According to the plaintiffs, the shop in dispute belonged to Igyaram and Hazarimal, sons of Bhawarsi and grand-sons of Girdharilal by virtue of a patta of Samwat Year 1911 in their favour. Both Igyaram and Hazarimal died issueless and Parwati widow of Igyaram came into possession of the said shop on the death of both the aforesaid brothers. On Falgun Badi 2, Samwat 1966 Shrimati Parwati executed a so called gift deed in favour of Jaikishan, who was the grand-son of Rajuji, third son of Girdharilal. It is not in dispute that the so called gift deed is really a will executed by Shrimati Parwati in favour of Jaikishan and is a registered document. Although the said document Ex. 2 speaks of making a gift of the entire property left by Igyaram, husband of Shrimati Parwati in favour of Jaikishan, yet it goes on to state that Shrimati Parwati would remain as the owner of the said property during her life time and on her death Jesiram (Jaikishan) would become the owner of the said property. Thus although styled as a gift deed, the document Ex. 2 is essentially a will made by Shrimati Parwati in favour of Jaikishan, described therein as Jesiram. It is also not in dispute that Shrimati Parwati died in Samwat 1974 and Jaikishan came into possession of the suit shop on her death. The plaintiffs who are the sons of Jaikishan, executed a registered mortgaged deed on March 4, 1918 in respect of the suit shop in favour of Hastimal Askaran, in which they relied upon the gift deed executed by Shrimati Parwati in favour of Jaikishan in Samwat 1966 in support of their title to the mortgaged property. On February 22, 1945 the plaintiffs repaid the mortgage money to the mortgagees and redeemed the suit shop. Uday Kishan, who was inducted into the suit shop as a tenant by the mortgagees Hastimal Askaran. and who executed a rent deed E 4 dated Chet Sudi 14, Samwat Year 1996 in favour of the mortgagees, later executed a fresh rent note in favour of the plaintiffs on February 22. 1945 when the mortgage was redeemed by the plaintiffs. According to the plaintiffs, they had led out the shop in dispute again to Ramdayal Surajmal by means of a rent deed dated January 5, 1949, a copy of which has been produced on the record as Ex. 9. The plaintiffs further alleged that Chandan Mal, who was a relation of Surajmal Ramdayal was allowed to occupy the shop with the permission of the plaintiffs and he became a tenant of the suit shop with effect from Bhadwa Sudi 15, Samwat 2010 on a monthly rent of Rs. 15/ -. They also alleged that as the plaintiffs usually resided at Akola, Smt. Dhanni Bai, who was their aunt and was residing at Phalodi, used to realise rent from Chandan Mal on behalf of the plaintiffs. Bat as Chandan Mal subsequently failed to pay rent for the premises in dispute, a suit for ejectment was filed which was dismissed, as mentioned above, on account of the failure of the plaintiffs to establish the relationship of landlord and tenant between the parties. Here it may be mentioned that Shrimati Dhanni Bai is the widow of Rampratap, grandson of Thakursi, who was another son of Girdharilal. The plaintiffs based their claim in the present suit on their title derived from the gift deed executed in their favour in Samwat 1996 by Shrimati Parwati widow of Igyaram and also on the basis that Jaikishan was the nearest heir of Shrimati Parwati and her husband Igyaram. The plaintiffs claimed that they continued to be in possession of the suit shop since the possession thereof was handed over to them by Shrimati Parwati. The defendants resisted the plaintiffs' claim and according to them Shrimati Dhanni Bai was always in possession of the suit shop and she claimed title on the basis of adverse possession. Shrimati Dhanni Bai claimed that she was the owner of the suit shop and Chandan Mal claimed to be a tenant of the suit shop on her behalf. The defendants took the plea that Mst. Parwati had no right to dispose of the property by gift or will and that the said gift deed did not bestow any right to Jaikishan or the plaintiffs. It was also denied that Jaikishan was the nearest reversioner of Smt. Parwati's husband. A plea was also taken by the defendants that the suit was barred by limitation. The trial court decreed the plaintiff's suit, holding that the title of the plaintiffs was proved. However, on appeal the learned District Judge. Jodhpur dismissed the plaintiffs' suit on two grounds: viz. that the plaintiffs failed to prove their title in respect of the suit shop and further that the suit was barred under Article 142 of the Limitation Act, 1908. In the present appeal, the decision of the first appellate court in respect of both the aforesaid questions has been challenged. The plaintiffs claimed to be the owners of the suit shop on the ground that they came into possession on the basis of the gift or will executed by Shrimati Parwati in favour of their father Jaikishan and secondly that Jaikishan was the nearest reversioner of the husband of Shrimati Parwati and thirdly that even if it be held that the so called gift deed or will executed by Shrimati Parwati in favour of Jaikishan did not pass any title to him being a void document then the possession obtained by Jaikishan under such void document must be deemed to be adverse against the true owners, viz. the legal representatives of Igyaram and Hazarimal. So far as the first ground is concerned, it is not disputed before me that Parwati, being a Hindu widow, did not possess any disposing right in respect of the suit property in dispute to Jaikishan either by way of gift or by will. The so called gift deed of Samwat year 1966 executed by Shrimati Parwati in favour of Jaikishan alias Jassu Ram, father of the plaintiffs, was thus without any doubt a void document. According to Hindu Law, a widow or other limited heir had no power to dispose of the corpus of immoveable property inherited by her from her husband or father, except for legal necessity. Hindu Law, as it prevailed at the relevant time, imposed restrictions on the rights of a Hindu widow in respect of alienation of immoveable property and even the learned counsel for the appellants could not support the plaintiff's case that the so called gift or will executed by Shrimati Parwati could give any right or pass any lawful title to Jaikishan or the plaintiffs in respect of the suit shop. As regards the question of heirship, a bare perusal of the pedigree shows that Jaikishan could not be held to be the nearest reversioner of Igyaram, who was one of the owners of the suit shop, by virtue of the 'patta' of Samwat Year 1911. Moreover, it is not on the record as to which of the descendants of Gir-dharilal were alive at the time of death of Igyaram, so that the question as to who was his nearest reversioner at that time could be properly determined.
(3.) HOWEVER, learned counsel for the plaintiff - appellants relied before me upon the third plea raised by them, viz. the plaintiffs became the owners of the suit property by adverse possession. The aforesaid plea was taken before the first appellate court as well but the same was not allowed to be raised on the ground that no such plea was advanced by the plaintiffs in their plead-ings. According to the learned District Judge, allowing such a plea of adverse possession to be raised at the appellate stage would amount to entertaining a new case and if the plaintiffs were permitted to set up such new case, the same was likely to prejudice the defendants. It was also observed that adverse possession must be Droved by clear and unequivocal evidence and must be shown to be hostile, continuous and open. I am unable to agree with the learned District Judge on this question because the plea of adverse possession is inherent in the plea of ownership raised by the plaintiffs in the present case. The plaintiffs claimed their title on the basis of the so called gift deed executed by Shrimati Parwati in favour of Jaikishan alias Jesiram on Falgun Badi 2, Samwat 1966. If the said document was void and was unable to pass any title to the plaintiffs, then the possession acquired by Jaikishan under the aforesaid document was necessarily adverse to the true owners. Their Lordships of the Privy Council observed in Vasudeva Padhi Khadanga Garu vs. Maguni Devan Bakshi Mahapatrulu Garu (1), as under : - "then comes in section 28, by which his right to the property is extinguished at the determination of the period limited for bringing a suit for possession of it. The point does not require to be expressly pleaded as it is only evidence of the respondent's title :" (Itelic added) ;