K.L.Bapna, J. - (1.) This is a second appeal by the plaintiff. There is a Haveli in Jodhpur City known as Bhikamkore-ki-Haveli and at one time belonged to the Thakurs of Bhikamkore, Pali, Bhawad and Birloka jointly. One Sadasukh was in possession of the Haveli. On 18th April. 1950, he executed a will in which he described himself as the owner of this Haveli and purported to bequeath the same to Jagdambalal and Mangilal, who were his relations. Sadasukh died on 12th December, 1951. Jagdambalal and Mangilal filed an application before the District Judge for grant of probate of the will on 15th September, 1952. Jagdambalal and Mangilal also took steps to protect their possession by instituting proceedings under Section 145 Cr. P. C. on 27th December, 1952 against certain persons who were partisans of the aforesaid Thakurs.
(2.) Some time after these proceedings had been launched, the appellant Thakur Macthosing obtained sale deeds from the Thakurs of Bhikamkore, Pali, Bhawad and Birloka in his favour. On 17th July, 1953 Jagdambalal and Mangilal executed a document relinquishing their claims to the property known as Bhikamkore-ki-Haveli for the consideration of Rs. 3,200/- received from Thakur Madhosingh. The relevant portion of the document, when translated into English, is as follows: "Document of relinquishment executed by Jagdambalal and Mangilal in favour of Madhosingh. Whereas a Haveli of the boundaries noted below situated in Jodhpur City belonged to the Thikanas of Bhikamkore, Pali, Bhawad and Birloka and which you have purchased from the said Thikanas; And whereas our maternal uncle Sadasukh Gopa used to live in it and he had bequeathed the said Haveli to us and our application for obtaining probate is pending in the Court of the District Judge; And whereas another proceeding under Section 145 Cr. P. C. is pending in the Court of the City Magistrate, Jodhpur in respect of the same Haveli; And whereas your case is that the deceased Sadasukh was only permitted to live in the house for the purpose of keeping guard over the Haveli, but our case is that Sadasukh was the owner of the Haveli; And whereas we have no document of title in our possession; And whereas both you and I have agreed to put an end to the dispute; Therefore, we have withdrawn from, the possession of the Haveli and have put you in possession of the entire Haveli and hereby relinquish, all the rights of Sadasukh in the Haveli which we had acquired under the will and hereby declare that from today, we shall have no right whatsoever in the Haveli and you will remain the full owner of the said Haveli and in consideration of this relinquishment and for withdrawing the application for obtaining probate and for withdrawing the proceedings under Section 145 Cr. P. C. against the persons from whom you had purchased, we have received Rs. 3,200/- in cash from you." This is Ex. P. 3.
(3.) On the same day an application was filed before the District Judge for withdrawal of the probate in the following terms: "We Jagdambalal and Mangilal petitioners submit that we had submitted an application for obtaining probate of the will of Sadasukh on the understanding that Sadasukh was the owner of the property mentioned in the will. Now, we have satisfied ourselves that the property was not of Sadasukh. We, therefore, withdraw our application for obtaining the probate, which application may kindly be dismissed." This is Ex. 2.;