- (1.) THIS first appeal is directed against the judgment and decree dated 19.04.1982 passed by District Judge, Balotra, whereby, the suit filed by the respondents for declaration, injunction, possession and mesne profit has been partly decreed. The respondents-plaintiffs have preferred cross-objections under Order XLI, Rule 22 CPC to the extent the trial court has declined the relief to them.
(2.) AT the outset, it may be noticed that appellant No.1 has been described as Smt. Amrao Devi in the plaint; she has signed the written statement as Smt. Amrao Devi; in the statement as DW-1 she has been named as Umrao Devi but signed the same as Amrao Devi; in the title of the impugned judgment she has been described as Smt. Amrao Devi. However, the present first appeal has been filed indicating her in the title as Smt. Umrao Devi, however, the Vakalatnama has been signed as Amrao Devi, as such in the body of judgment the appellant No.1 has been indicated as Smt. Amrao Devi and in the title as Smt. Umrao Devi alias Amrao Devi. The facts in brief may be noticed thus : plaintiffs Hulas Mal and Manoj Kumar S/o Hulas Mal filed a suit on 04.02.1977 claiming that the plaintiffs were members of Hindu undivided family; the defendants were also members of Hindu undivided family; in Ward No.6, village Jasol a house alongwith Bada No.619 was situated, regarding which, boundaries were indicated; the said property belong to the ancestors of plaintiff No.1 and was in his possession; the family tree was indicated to show that the principal person was Jalaji, he had two sons - Suraj Mal and Birdhi Chand, Suraj Mal had two sons Pratap Mal and Ashu Ji, Ashu Ji went in adoption to Bridhi Chand, Pratap Mal had one son ­ Multan Mal and the plaintiff was adopted by said Multan Mal, Ashu Ji who had went in adoption to Bridhi Chand had a wife Pyari and they died issue -less; it was claimed that before 1956 Ashu Ji and Multan Mal Ji died and plaintiff No.1 was adopted by Multan Mal Ji on 25.10.1952 according to custom and a written adoption deed was prepared and the same was got registered; Ashu Ji had died before Multan Mal Ji and Multan Mal Ji died in the year 1954 and, therefore, the plaintiff No.1 remained the sole owner of the said house alongwith Bada and the same was in his possession; it was claimed that on 11.12.1954 the plaintiff No.1's mother and widow to Multan Mal Ji-Smt. Pepi filed application under Section 10 of the Guardians and Wards Act alongwith a list of properties of Multam Mal Ji claiming the plaintiff to be the sole owner and being minor for her appointment as guardian; the suit property was indicated at Item No.2; no objection was filed by anyone and ultimately by judgment and decree dated 30.04.1958 as plaintiff was 17 years of age, the Court finding the plaintiff as capable of looking after the properties left by Multan Mal Ji dismissed the application; it was further claimed that the neighbours from time to time produced maps etc. and on 29.11.1973 Chhagan Lal Kewal Chand etc. sold their land to Dungar Chand Rai Chand, wherein, it was indicated that the suit property was of plaintiff's ownership; on 19.06.1976 Gram Panchayat issued a certificate, based on which, the plaintiff applied for Patta in his name of the house, when for the first time defendant No.1 raised objection, which was rejected on 05.09.1976, which was appealed against by defendant No.1 and stay was granted; the defendants had no right, title or interest in the suit property; however, with an intention to usurp the said property, on 24.10.1976 the doors were broken open and the defendants unauthorizedly occupied the suit property, regarding which, the proceedings were pending; it was further submitted that in the appeal defendant No.2 Smt. Amrao Devi claimed that the suit property belong to Smt. Pyari wife of Ashu Ji; when in fact Ashu Ji had died several years prior to 1956 and Pyari had no right in the said property; Pyari also died on 30.12.1965; ultimately declaration was sought that the plaintiff alone was the owner of the suit property, possession of the same from the defendants and mesne profit @ Rs.300/- per month.
(3.) A written statement was filed by Smt. Amrao Devi; it was claimed that the suit property was defendants' personal property and the plaintiff had no right, title or interest either in the past or in the present; the claim of the property being ancestral was denied; it was objected that the plaintiff has deliberately not impleaded all the legal representatives of Multan Mal Ji, in fact defendant No.1 was daughter of Multan Mal Ji and Pepi widow of Multan Mal Ji was alive and was a necessary party; Ashu Ji had died in Samwat year 1974 (1917 AD); it was denied that Multan Mal Ji adopted plaintiff No.1 according to law on 25.10.1952; knowledge about registration of adoption deed was denied; the proceedings under Section 10 of the Guardians and Wards Act were also denied and it was stated that even if the list in the said proceedings contained the suit property, the same cannot confer title on the plaintiff; the boundaries by the neighbours were mala fidely indicated showing the property as that of the plaintiff; the validity of certificate issued by Gram Panchayat dated 19.06.1976 was denied; further the allegations regarding trespass were denied and it was claimed that the defendants were in peaceful possession for over 12 years and the plaintiffs were never in possession; the property belong to Smt. Pyari widow of Ashu Ji, who had executed her last Will dated 18.06.1964 and bequeathed the said property to Smt. Amrao Devi; Smt. Pyari died on 30.12.1965 and ever since, the defendant No.1 was in possession; it was claimed that the disputed Bada belong to Mst. Pyari, who was the sole owner; the disputed property was owned by Birdhi Chand S/o Shri Jala Ji, which was received by Ashu Ji on going on adoption to Birdhi Chand and on account of his (Ashu Ji) going in adoption his family was separate from that of Pratap Mal; the property was of the sole ownership of Birdhi Chand and his son Ashu Ji and, therefore, Multam Mal and his father Pratap Mal or Suraj Mal had no right in the said property; the said Pyari was in possession of the suit property through out her life and on coming into force of the Hindu Succession Act, 1956 ('the HS Act') she became full owner and exercising that right, she executed the Will dated 18.06.1964 and, therefore, defendant was rightly in possession of the suit property.;