Sharma, J. - (1.) These are two appeals - One Civil Second appeal No. 242 of 1949 filed by Bhonrilal and three others and the other No. 243 of 1949 by Narain against the Chief Secretary, Jaipur Government who has now been submitted by the Chief Secretary of the Government of Rajasthan. During the pendency of appeal No. 242 of 1949 Bhonrilal died and Chandnarain, Shyamlal and Hanuman Sahai minor under the guardianship of Chandnarain were substituted in this place. Appeal No. 243 was filed by Narain. Both these appeals arise out of suit No.119 of Smt. 2002 which was filed by the Chief Secretary of the erstwhile Jaipur State against Narain, Bhonrilal, Surajmal, Parasram, Radha Mohan, Mst. Bhonri, Vijainarain, Ram Sahai Govindnarain and Kishendass. The allegations in the plaint were that a four storeyed Haveli situated in Chowkri Topkhana Desh, Rasta Akran, Mohalla Tikkiwalan in the city of Jaipur more fully described in the plaint was given to one Srichand for residence in Udak on Mah Sudi 15, Smt. 1808. This Srichand was an ancestor of Vijainarain, Ramsahai and Govindnarain, Defendants. Since then, Srichand and his descendants had been in possession of the said Haveli as Atiadar. Deepchand one of the descendants of Srichand died in the life time of his father Gopinath. Mst. Kesar widow of Deepchand made a simple mortgage of a portion of the Haveli in favour of Narain defendant No.1, on the 19th of November,1931. This property is shown in clause (a) in para 4 of the plaint. Thereafter she made another simple mortgage of another portion of the Haveli in favour of the same mortgagee on the 5th of May,1932. This property is shown in clause (b) in para 4 of the plaint. These two properties shall be hereinafter called portions A and B respectively.On 30th of September,1942 Mst. Kesar died. Some time before her death, defendant No.1 Narain took possession of portion A, and Mst. Bhonri, who had been living along with her mother in portion B, took exclusive possession of this portion after Kesar's death. There was another descendant of Srichand by the name of Kasinath. There was a decree for money against his widow Mst. Radha and the portion of the house mentioned in para 7 of the plaint was sold in execution of that decree on 23rd March,1904 and was purchased by Ramdass Guru of Kishendass, defendant No.10. This portion will hereinafter be referred to as portion C. Ramdass sold this portion C to Bhonrilal defendant No. 2 and Surajmal defendant No. 3 as per sale deed dated 10th of September,1923. All these transfers were illegal as the property given in Udak by the State was in alienable. Mst. Bhonri defendant No.6 had no rights to take possession of the portion occupied by Mst. Kesar. The authorities of the erstwhile Jaipur State came to know about these transfers in March,1940, when the property mortgaged under the mortgage-deed of 5th of May, 1932, was sought to be put put up for sale in execution of the decree for fore-closure. The plaintiff averred that all the above alienations were null and void against the State. It was prayed that it be declared that the alienations referred to above were null and void against the State and that possession over the property described in the plaint be delivered to the State.
(2.) It was admitted on behalf of the defendants Bhonrilal, Surajmal and Radhamohan that the property was given in Udak to Srichand but it was alleged that Srichand had been made absolute owner of the Haveli and it was not given to him only for residential purposes. It was further pleaded that the alienations had been validly made and the State authorities were in full knowledge of these alienations. It was pleaded that the suit was barred by limitation and estoppel. Govindnarain defendant No.9 admitted that the property had been given in Udak to Srichand but pleaded that no cause of action had arisen against him and he was unnecessarily impleaded as defendant. He raised also the pleas of want of jurisdiction and limitation. Vijainarain and Ramsahai defendant Nos. 7 and 8 admitted that the Haveli was given in Udak to Srichand and pleaded that the decree against Mst. Kesar was collusive and the alienations mentioned in the plaint were invalid. They prayed that the possession of the Haveli in dispute be delivered to them. Narain defendant No.1 too admitted that the property had been given in Udak to Srichand but pleaded that it had been given to him absolutely and he and his descendants had every right to transfer it. He also pleaded the bar of estoppel and limitation. Mst. Bhonri did not appear to defend the suit. Parasram and Kishendass defendants also did not file any written statements.
(3.) The first court framed seven issues on the 4th of January,1947. They are as follows:- (1) Whether the Haveli in suit was granted merely for residence to Srichand and his descendants' possession existed in capacity of State grant? (2) Whether the transfer made in respect of specific portion of the Haveli from time to time are improper and inoperative? (3) Whether the suit is within time? (4) Whether the suit is barred by the rule of estoppel? (5) Whether Narain defendant's adverse possession exists over that portion of property which is in his occupation? (6) Whether the present suit suffers from the defect of non-joinder of necessary party? (7) Whether defendants 2 and 5 expended Rs.1500/- upon repairs and constructions in respect of the specified portion which are in their occupation and the charge of this money exists upon the portion claimed and legally such a plea is maintainable?;