SHARMA, J. - (1.) THIS cluster of six appeals includes five DB Civil Special Appeals against the judgment and decree date March 4, 1987 of learned Single Judge whereby the first appeals bearing numbers 1/1983 and 27/1983 of Smt. Sringar Kanwar and Hari Singh were partly allowed and the decree of Trial Court dated November 18, 1982 was modified. The sixth Civil Misc. Appeal is preferred against the order dated December 7, 1987 by which defendant's application under Order 9 rule 13 CPC, to set aside the ex parte decree dated November 18, 1982, was dismissed.
(2.) THE litigation has a chequered history: On October 12, 1959, the plaintiff Hari Singh (since deceased) filed a suit for declaration and possession against defendant Smt. Sringar Kanwar. It was inter alia stated in the plaint that Thakur Berisal Singh, husband of Sringar Kanwar, adopted Hari Singh on September 24, 1943 and executed a deed of adoption which was registered. Thakur Berisal Singh died on October 10, 1947 leaving behind ancestral immovable properties mentioned in the schedule annexed with the plaint. In the year 1954 Smt. Sringar Kanwar filed a suit for ejectment and rent against Hari Narain regarding the shop mentioned at No. 8 in the schedule. Hari Singh was impleaded in the suit. It was pleaded by Sringar Kanwar that she was owner of the shop and adoption of Hari Singh was illegal as Berisal Singh had made a will (Ex. A1) in her favour on May 14, 1947 and he had also executed agreement with the natural father of Hari Singh about postponement of right of Hari Singh. Hari Singh alleged that Berisal Singh could not execute any will as the property was ancestral. THE suit filed by Sringar Kanwar against Hari Narain came up in Regular First Appeal No. 7/1959 before this Court and following order was passed on August 5, 1965:- " 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 of 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. " Hari Singh claimed declaration to the effect that he was adopted son of Berisal Singh and he was owner of the properties mentioned in schedule he claimed possession of property against Smt. Sringar Kanwar and other defendants. Smt. Sringar Kanwar filed written statement denying adoption of Hari Singh and pleaded that after the death of Berisal Singh she was owner of the properties mentioned in the schedule. Initially the suit filed by Hari Singh was dismissed and vide order dated February 10, 1981 in appeal filed by Hari Singh the case was remanded back for decision on three issues. After dismissal of the suit of Hari Singh, Prem Chand purchased a shop and Thadi from Sringar Kanwar through sale deed for a consideration of Rs. 14,999/ -. At that time one Mathuradas tenant was in possession of shop and Thadi. After the purchase of property Prem Chand filed suit for ejectment against Mathuradas and after a long litigation Prem Chand was given the possession of the shop and Thadi. Pursuant to the directions made by the High Court while remanding the suit of Hari Singh, the Additional District Judge No. 2, Jaipur City passed decree on November 18, 1982 against which first appeal No. 1/83 and 27/83 were preferred. Learned Single Judge on March 4, 1987 decided the appeals thus:- " (i) That Smt. Sringar Kanwar will have the right to enjoy the property, to collect the usufruct and to remain in possession of the property throughout her life time. She will have not right to alienate right or interest of Hari Singh in the said property. She will have also no right to waste or damage the property. (ii) That the property which she has sold prior to the coming into force of the Hindu Succession Act shall be binding on Hari Singh and 50% share will be only in the property which was in existence on 17. 06. 1956, the day on which the Hindu Succession Act came into force. All mortgages effected by Sringar Kanwar prior to 17th June 1956 shall also be binding on Hari Singh. Any sale, transfer, mortgage, gift or the transfer in any manner made by Smt. Sringar Kanwar on or after 17. 06. 1956 shall not be binding on Hari Singh. All the transfer by way of sale, gift, mortgage or in any mode, effected by Sringar Kanwar divesting the property completely from the right of ownership are hereby declared null and void and shall not be binding against Hari Singh. (iii) That the property shall be treated as a joint property with 50% share each of Hari Singh and Sringar Kanwar and shall remain in the ownership of both till the partition is effected. (iv) Both the parties, namely Sringar Kanwar and Hari Singh will have the right to get the possession of the property from the strangers under the decree of this court and in case the possession is taken it shall be handed over to Sringar Kanwar with a condition that she will have the right to enjoy the property so taken over during her life time. She will have also the right to get the usufruct of the property but she will have no right to alienate the property and to waste or damage the property till her specific part of the property is determined by way of partition. (v) The property which is in the possession of respondents Nos. 7 and 8 vide mortgage deed dated 16. 1. 49 and which has been purchased under auction sale dated 18. 03. 1955 shall continue to be in the possession of the auction purchaser as a sole owner. (vi) Both the parties will have the right to get the possession of the property from the respondents who are party in appeal No. 27/83 and whose transfers have not been recognised. If the property is in possession of the persons who are under the share of the respondents and whose transfers have not been recognised then also by applying the doctrine of lis-pendence the decree shall be executable against them. (vii) The physical possession shall remain with Sringar Kanwar but the possession shall be construed as a constructive joint possession of both with a limitation that Hari Singh will have no right to enter the property and to disturb the enjoyment of Sringar Kanwar. (viii) The property may be given by Sringar Kanwar on lease but the interest of both the parties should be safe-guarded so that in future there may not be any difficulty. Both the appeals are disposed of accordingly. No order as to costs. " Against the judgment and decree dated March 4, 1987 of the learned Single Judge that the instant special appeals have been filed.
(3.) IN special Appeal No. 88/87 preferred by defendant appellant Sringar Kanwar and 4 others against plaintiff Hari Singh a prayer has been made to set aside the judgment and decree dated March 4, 1987 of learned Single Judge and to dismiss the suit of plaintiff respondent holding that the defendant Sringar Kanwar was the absolute owner of property in dispute after coming into force Hindu Succession Act. In special appeal No. 95/87 preferred by Dhanraj Karan Singh @ Bahadur Singh a prayer has been made to set aside judgment and decree dated March 4, 1987 of learned Single Judge as well as November 18, 1982 and to the extent of property described at Item No. 2 in Schedule (Ga) annexed to the plaint the suit of plaintiff be dismissed. In special appeal No. 108/87 preferred by Vijay Narain against plaintiff Hari Singh and defendant Sringar Kanwar the prayer has been made to set aside the judgment and decreed dated March 4, 1987 of learned Single Judge as well as November 18, 1982 of Trial Court. ;