M.L.SHRIMAL, J. - (1.) THIS special appeal by Om Prakash and others is directed against the judgment of Hon'ble the Acting Chief Justice dated October 23, 1975, whereby he upheld the decree for partition passed by the learned Additional District Judge, Churu in Civil Regular Suit No. 111 of 1968 on the ground that Tarachand was validly adopted son of Bhagirath.
(2.) TERSELY put shorn of unnecessary details the facts giving rise to this special appeal are that Khetaram had three sons, namely, Bhera Ram, Khuba Ram and Jairam. Jairam died issueless and Khubaram went in adoption to some other family. Bhera Ram had two sons : Bhagirath and Chhaganmal. Bhagirath died issueless. Chhaganmal had three sons : Tarachand Omprakash and Suryaprakash. It is alleged that Tara Chand went in adoption to Bhagirath in Samwat Year 1999, equivalent to year 1943 A.D. Tarachand filed the present suit against Chhaganmal, Omprakash and others for partition of the ancestral property and claimed one half share in that property on the ground that he was the adopted son of Bhagirath. In para No. 3 (Kha) of the plaint it was pleaded that defendant Chhaganmal had admitted Tara Chand to be validly adopted son of Bhagirath in Civil Regular Suit No. 260 of 1953 brought by Chhaganmal and Tarachand against the donee of Mst. Lichhmi, widow of Bhagirath. The appellants contested the suit. The learned Additional District Judge placing reliance on the admissions of Chhaganmal made in the earlier suit No. 260 of 1953 and his statement made on oath during the course of the trial of that case, and the statements of PW1 Vidhya Prakash, PW2 Mangilal PW3 Ugamlal, PW6 Harakchand and PW8 Purananand held that Tarachand was validly adopted son of Bhagirath and decreed the suit of the plaintiff by his judgment and decree dated September 29, 1970. Being aggrieved of that the appellants took up an appeal which came up for decision before the Hon'ble the Acting Chief Justice, who upheld the judgment of the trial court placing reliance on the admissions made by Chhaganmal in the original suit No. 260 of 1953 both in the plaint and in the statement before the court. He also placed reliance on the statement of PW2 Mangilal, PW8 Purnanand and PW6 Harakchand. However, he found PW1 Vidhya Prakash and PW6 Harak Chand unreliable. On the basis of the above findings the Hon'ble Acting Chief Justice dismissed the appeal by his judgment and decree dated October 23, 1975. Hence this special appeal.
(3.) LEARNED Counsel, appearing on behalf of the appellants, has challenged the judgment of the learned Single Judge on the following three grounds : Firstly, he has urged that there is no evidence on record worth the name to hold that Mst. Lichhmi had the authority to adopt a son after the death of her husband. This point was neither raised in the written statement nor it was argued before the trial court or the first appellate court. It is purely a question of fact and it cannot be allowed to be raised at this stage.;