M. L. SHRIMAL, J. - (1.) THIS first appeal, at the instance of Hari Singh son of Shri Berisal Singh (adopted son), is directed against the judgment and decree, dated March 2, 1966, passed by learned Senior Civil Judge No. 2, Jaipur City, in Civil Original Suit No. 48 of 1959/44 of 1960, whereby the learned Judge, after deciding issue No. 8 in favour of the defendants, dismissed the suit.
(2.) THE facts giving rise to this appeal are that Hari Singh, son of Shri Amar Singh, was taken in adoption by Shri Berisal Singh and his wife Smt. Sringar Kanwar defendant No. 1 on December 24, 1943 and a deed reciting the ceremonies and the terms of adoption was also reduced into writing on the same date. On May 14, 1947, Berisal Singh, by a will registered on May 15, 1947, transferred some properties to defendant No. 2 Chander Singh, defendant No. 3 Bhanwar Bai and defendant No. 4 Gopi Singh and rest of the properties to defendant No 4 Gopi Singh and rest of the properties to defendant No. 1 Smt. Sringar Kanwar. On January 3, 1944, a gift deed was executed by Berisal Singh in favour of Chander Singh defendant No. 2. On October 10, 1947, Berisal Singh (adoptive father of Hari Singh appellant) expired. On January 16, 1949, defendant No. 1 Smt. Sringar Kanwar mortgaged some of the properties to defendant No. 6 Bhanwari Lal, defendant No. 7 Radha Gopal and defendant No. 8 Radha Govind, who brought a suit for sale of the mortgaged property, which was decreed and in execution of that decree the mortgaged property was purchased by mortgagees on March 18, 1955. On June 29, 1954, Smt, Sringar Kanwar executed usufructuary mortgage-deed in favour of defendant No. 9 relating to other property. On March 3, 1949, defendant No. 1 Smt. Sringar Kanwar filed a suit for arrears of rent and possession of some property against Hari Narain defendant No. 52. The tenant denied the title of Smt. Sringar Kanwar and pleaded that he was the tenant of Hari Singh and as such the suit was not maintainable. On May 27, 1954, Hari Singh was added as one of the parties to the suit. The suit was ultimately decreed by the trial court on August 20, 1957. Not being satisfied with the decree of the trial court both the parties went up in appeals, which were dismissed by learned Senior Civil Judge, on October 19, 1959. Being aggrieved with the appellate Court's decree, the appellant as well as tenant Hari Narain came up in second appeal before this Court, which was registered as S. B. Civil Second Appeal No. 741 of 1959. The learned Single Judge with the consent of the parties framed the following two additional issues: - "12. Whether Amar Singh, the natural father of defendant Hari Singh consented to the curtailment of the rights of Hari Singh as mentioned in portion A to B of adoption-deed Ex. D. 17. "13. If so, whether such a consent was given by Amar Singh before or at the time of the adoption, or thereafter?" The learned Single Judge remitted the issues to the appellate Court for recording evidence and submitting its findings on the said issues. After the receipt of the findings, the Single Bench of this Court, after hearing the parties, by its judgment and decree dated August 5, 1965, interpreted the document dated December 24, 1943 and hold as under: - "it would thus appear that Hari Singh's natural father Amar Singh had agreed that Berisal Singh and his wife Smt. Sringar Bai would retain full control over the whole of Berisal Singh's property, that Hari Singh would have no right to squander away that property and that he would become its full owner on Berisal Singh's death and the death of his wife in the same way as Berisal Singh was its owner in his life time. This agreement having been made at the time of the adoption, it regulated the rights of the adopted son by reserving, inter alia, a life interest in the whole property in favour of Smt. Sringar Bai. As this clause cannot be said to be incompatible with Hari Singh's position as an adopted son, it is quite valid and the only proper view to take is that the intention of the parties was to postpone Hari Singh's interest in the property until after Smt. Sringar Bai's death. " It was further observed that in view of the above noted findings, it was futile for the defendants to contend that Smt. Sringar Kanwar was not the owner of the suit shop and could not bring the suit against defendant Hari Narain for his eviction. She is the landlord within the meaning of section 3 (iii) of the Rajas-than Premises (Control of Rent and Eviction) Act, 1950 and is entitled to evict defendant Hari Narain and recover arrears of rent from him. Meanwhile on October 12, 1959, the plaintiff-appellant filed the suit giving rise to the present appeal in the Court of Senior Civil Judge No. 2, Jaipur City, for declaration that he is the validly adopted son of Berisal Singh and that the alienations made by Berisal Singh and his wife were null and void. Besides, he also claimed relief of injunction and possession of the properties, mentioned in Schedules-K, Kha, Ga, Gha, N, Chha and J, annexed with the plaint. The defendants controverted the averments made in the plaint.
(3.) ON the pleadings of the parties the trial Court framed only seven issues on March 3, 1962 and directed the plaintiff to produce evidence regarding those issues. It was also mentioned therein that other issues would be framed later on, if necessary. ON an application, filed by the learned counsel for the plaintiff after hearing the arguments, an additional issue No. 8 was framed on April 14, 1962. The additional issue reads as under : - "8. Whether the subject-matter of issue No. 1 was directly and substantially in issue and tried and decided in the former suit between the plaintiff and defendant No. 1 and 52 and so it is res judicata and cannot be re-tried in this suit ?" ON the above noted issues the parties were put to proof. While the evidence was being recorded on behalf of the plaintiff, the defendant submitted a copy of the judgement and decree, dated August 5, 1965, passed by this Court in S. B. Civil Second Appeal No. 741 of 1959. Learned Senior Civil Judge, after hearing the parties, held that the entire controversy between the parties was set at rest by the judgment of the High Court. The learned Judge further held that Hari Singh was recognised as adopted son of Berisal Singh, but his right to the properties of Berisal Singh stood postponed till death of Smt. Sringar Kanwar. It would thus be clear that so long as Smt. Sringar Kanwar defendant No. 1 was alive, plaintiff Hari Singh has no locus standi to bring any suit with regard to the properties of Berisal Singh of which Smt. Sringar Kanwar was the owner. With these observations he decided issue No. 8 in favour of the defendants and dismissed the suit. Hence this first appeal. Learned counsel for the appellant, Mr. R. K. Rastogi, has vehemently urged that the trial Court had no sufficient material before it to decide the issue of res judicata. He also contended that the decision of issue No. 8 could operate as res judicata regarding issue No. 1 and as such the suit ought not to have been dismissed. Mr. P. N. Dutt appearing on behalf of respondent No. 1 has supported the judgment of the trial Court on a number of grounds and has also urged that the suit is barred by limitation and the judgment and decree of the trial Court could be maintained on the ground that the respondent No. 1 became full owner under section 14 (1) of the Hindu Succession Act, 1956. ;