- (1.) THIS second appeal under Section 100 CPC is directed against the judgment and decree dated 8.9.2009 passed by the District Judge, Jaisalmer, whereby the appeal filed by the appellant -plaintiff against the judgment and decree dated 29.9.2008 passed by Civil Judge (Sr.Div.), Jaisalmer has been dismissed and dismissal of the suit for partition filed by the appellant has been upheld.
(2.) THE facts in brief may be noticed thus : the appellant - Aaloo Singh claiming himself to be the adopted son of Ram Lal filed a suit for partition against sons of Babu Lal, inter -alia with the averments that the plaintiff and defendants were great grand sons of Lachhi Ram. After death of Ram Lal, Smt. Rambha Devi W/o Shri Ram Lal adopted the plaintiff, who is her grand son (daughter's son) by a adoption deed dated 3.10.1986, which was registered with Sub -Registrar, Jaisalmer on 9.10.1986; the said Smt. Rambha Devi expired on 1.2.1987 and therefore, he was the sole heir of said Ram Lal and Smt. Rambha Devi. It was claimed that joint ancestral property i.e. a house situated at Kotdipada, Jaisalmer was recorded in the House -tax Registrar of Municipality in the name of deceased Ram Lal, however, Ram Lal and Smt. Rambha Devi had half share in the said house and half share belong to the defendants. Smt. Rambha Devi had possession of a kotha in the said house and after adoption, the plaintiff had possession of the said portion of the suit property alongwith the mother as owner. A suit was filed by the defendants seeking cancellation of the adoption deed, which was decided by the Civil Court on 21.12.1994 in plaintiff's favour. It was claimed that the defendants were seeking to prevent the appellant from using the said house and despite repeated requests have refused to partition the said house and ultimately, it was prayed that the suit property may partitioned by metes and bounds.
(3.) A written statement was filed by the defendants and the averments made in the plaint were denied. It was claimed that the grand fathers of the parties i.e. Binja Ram and Idan had separated even during life time of their favour i.e. Lachhi Ram and in the suit property Binja Ram had no share and the plaintiff had no share in the suit property. Ram Lal, so -called adopted father ­ plaintiff has died 50 years back and Smt. Rambha Devi never visited Jaisalmer as she was staying at Village Jajiya.;