DWARKA PRASAD, J. - (1.) THIS second appeal has been filed against the judgment and decree passed by the learned District Judge, Jodhpur on Mar. 30, 1968 and arises in the following circumstances.
(2.) ONE Chaturbhuj had four sons, Sitaram, Ramlal, Kriparam and Daya -ram. Sitaram had a son Chhotu, while Dayaram had a son Salehraj and Ramlal died issueless. Kriparam had two sons Nenji and Bastiram. Shivnarain and Laxminarayan plaintiffs are the sons of Nenji, while their third brother Ganeshlal is said to have gone in adoption to Ramlal. Bastiram left his widow Smt. Gauri, a son Arjunsingh and five daughters including Omkumari and Smt Raji defendants. Arjunsingh who was unmarried, died on July 17, 1952, leaving two houses situated in Mohalla Khanda Falsa at Jodhpur. After the death of Arjunsingh, the plaintiffs Shivnarain and Laxminarain asserted their claims in, respect of the estate of Arjunsingh deceased on the ground of being his nearest heir, as they were Arjunsingh's uncle's sons. In one of the houses, the upper storey was in possession of the plaintiffs, while the lower portion of the said house was in the possession of the defendants Smt. Omkumari and Smt. Raji, sisters of Arjunsingh. It was alleged in the plaint that after the death of Arjunsingh, the defendants occupied the lower portion of the house. The plaintiffs also obtained a letter of administration in respect of the property of Arjunsingh deceased from the court of District Judge, Jodh -pur. But as the defendants refused to vacate the lower portion of the house in their possession in spite of notice, the plaintiffs filed a suit for recovery of possession and for mesne profits. The defendants contested the suiton the ground that they were living inthe disputed portion since the time oftheir father Bastiram and that aftercoming into force of the Hindu Succession Act, 1955, they became full ownersof the property being in possessionthereof as the heirs of Arjunsingh. Theyalso pleaded a custom to the effect thaton the death of a person without anymale issue or widow, his daughters andsisters succeeded to the estate of thedeceased, in preference to the nearestreversioners. It was also pleaded by thedefendants that Nenji, father of theplaintiffs Shivnarain and Laxminarain,had gone in adoption to his maternaluncle Poonamchand in Samvat year1941 and as such they had no connection with the family of Arjunsingh andhad no right in the property left by deceased Arjunsingh. The trial court passed a decree for the recovery of possession in favour of the plaintiff -appellants,together with mesne profits @ Rupees 5/ -p.m. On appeal, the learned DistrictJudge held that there was no satisfactory evidence on record to prove thata custom, as alleged by the defendants,existed in the Mali Community of Jodh -pur. However, it was held that the adoption of Nenji by Smt. Sara, widow ofPoonamchand, was proved. The learnedDistrict Judge held that the plaintiffscould not claim any right in the property of Arjunsingh and as such the appeal was allowed and the plaintiffs' suitwas dismissed.
(3.) THE plaintiffs have filed this second appeal in this Court and it is urged by the learned counsel for the plaintiff -appellants that the adoption of Nenji, father of the plaintiffs by Smt. Sara, widow of Poonamchand, was a myth and that there is no evidence on record to establish the identity of the person, who is said to have been adopted by Smt. Sara, as the father of the plaintiffs. Mr. Hastimal, appearing for the defendant -respondents, on the other hand, supported the judgment of the first appellate court on the question of adoption of Nenji, father of the plaintiffs, by the widow of Poonamchand. He also argued that the custom set up by the defendants is fully proved by the evidence on record. It was lastly contended by the learned counsel for the defendant -respondents that the defendants Omkumari and Smt. Raji were in possession of the disputed property as maintenance holders from the time of their father Bastiram and on coming into force of the Hindu Succession Act, they have become full owners of the said property,;