MODI, J. - (1.) THIS is a regular first appeal by the plaintiff Mst. Asa Bai against the judgment of the learned District Judge, dated 12 -7 -I951, dismissing the plaintiffs suit for; possession of certain immovable property. The following pedigree table will be found helpful in understanding the contentions between the parties: RAJMAL (Died on 29 -12 -1917) __________|_______________ | | Panna Kanwar Bai Mst. Jarao Kanwar (First wife (Second wife) __________|__________ Died on 4 -1 -1928) | | | Mst. Chandan Bai Mst. Asa bai _________|__________ (Dead) (Plaitiff) | | Chandkanwar Pabhu Lal (Died on 14 -8 -28) (alleged to | be adopted Kapoorchand deft.1) | Khalrati Lal alias Dharamchand (deft.2) The dispute between the parties relates to a house situate in Pitaliyan Chowkri Visheshwarji in the city of Jaipur, the boundaries of which have been described at the foot of the plaint.
(2.) THE case of the plaintiff Mst. Asa Bai, daughter or Rajmal, according to the amended plaint, is that Rajmal was survived by his widow Mst. Jarao Kunwar and two of his daughters, the plaintiff and Mst. Chandkanwar, and it is not clear from the record when Mst. Chandan Bai, the third daughter of Rajmal had died; but we are not concerned with her. Mst. Jarao Kanwar succeeded her husband as his sole heir. She died on 4 -1 -1928. And before her death, she had allegedly adopted defendant No. 1 Prabbulal to her husband by an adoption deed Ex. A -1 dated the Baisakh Sudi 3 Smt. 1976 (corresponding to the 2nd May, 1919). But the plaintiffs case is that Mst. Jarao (her mother) had cancelled the same by a registered deed Ex. 19 dated 11 -2 -1923. It is alleged that Mst. Jarao Kanwar remained in possession of the disputed house during her life -time, and after her death Mst. Chand Kanwar the plaintiff's sister came into possession thereof. It is not in dispute that the latter also died on 14 -8 -1,928, leaving behind her an only minor son Khairatilal alias Dharamchand to whom we shall refer hereafter as Khairatilal, who has been impleaded as defendant No. 2 in this suit. The case of the plaintiff is that the defendant No. 1 Prabhulal assumed unlawful possession of the suit house as adopted son of Rajmal but he no longer occupied that status as his adoption had been cancelled by Mst. Jarao Kanwar, widow of Rajmal, and, therefore, he had no right whatever to it. It may be mentioned here that there was considerable litigation between Mst. Jarao Kanwar and Prabhulal, and it is in evidence that a number of suits were filed by them against each other but nothing decisive came out of this litigation so far as Prabhulal's status as the adopted son of Rajmal was concerned. Reference may be made in this connection to Ex. 8 which is a copy of the judgment o{ the Chief Court of the then State of Jaipur, dated 24 -12 -1925, from which it appears that Prabhu Lal was allowed to withdraw his suits against. Mst. Jarao Kanwar seeking a declaration as to his adoption to the deceased Rajmal and praying for the setting aside of the cancellation deed thereof with liberty to bring other suits in future. It is clear enough that Prabhulal remained in possession of the suit house even after the alleged cancellation of his adoption and certainly after the death of Mst. Jarao Kanwar or Mst. Chandkanwar who both died in 1928 as already stated above. Thereafter, defendant No. 2 Khairati Lal son of Mst. Chand Kanwar brought a suit for possession of the house in dispute on 13 -7 -1935. This suit was decreed by the trial court on the 27th November, 1937. Consequently, the said Khairatilal obtained possession of the suit house through court on the 12th December, 1937. Prabhulal appealed to the Chief Court of the then State of Jaipur but without success. Thereafter he appealed to the Judicial Committee of the same State by which the appeal was allowed on the ground that Khairatilal had no right to bring the suit in the presence of Rajmal's daughter Mst. Asa Bai, the present plaintiff, who was a nearer heir to the deceased. In the result, possession of the house in question was restored to Prabhulal on the 22nd May, 1946. It is against this background that the plaintiff brought the present suit on the 20th November, 1946, on the ground that she was the only lawful heir of the deceased Rajmal and was, therefore, entitled to the possession of the property in suit. Defendant No. 2 Khairatilal was impleaded as a pro forma defendant in this suit and no relief is claimed against him. Defendant No. 3 Mishrimal is the person who was in actual possession of the suit property at the date of the suit. The case of the plaintiff is that Prabhulal had sold the suit house to this defendant by a collusive sale -deed dated the 19th June, 1946, as a sort of 'peshbandi' against the plaintiff's suit. If Mst. Asa Bai is entitled to the suit property as the only heir of the deceased Rajmal, it should inevitably follow that Prabhulal had no right to sell it and defendant No. 3 Mishrimal could not acquire any lawful title with respect to it in that case. It is also alleged by the plaintiff that in Khairatilal's suit against Prabhulal, the latter in para 18 of his written statement dated the 14th October, 1935, had acknowledged the right of the plaintiff, and, consequently, the present suit was. within limitation. Both defendants Prabhulal and Misrimal resisted the suit, and their defence is common. Their case is that Prabhulal had been adopted in 1919 by Mst. Jarao Kanwar after her husband Rajmal's death and was the only lawful heir of Rajmal by virtue of this adoption. It was further contended that the defendants were not aware of any cancellation of the adoption by Mst. Jarao Kanwar, and even if she had done anything of the kind she could not legally do so and the adoption stood intact. It was also pleaded by Prabhulal that he had never acknowledged the right of the plaintiff Asa Bai in Khairatilal's suit against him, as he had throughout pleaded that he was the only lawful heir to the estate of the deceased Rajmal having been adopted to him by his widow, and that all that he had said was that, in any view of the matter, Asa Bai being the daughter of Rajmal was a nearer heir than Khairatilal plaintiff in that suit, and, therefore, the latter had no right to bring the suit for possession of the house in question. Lastly, it was contended that the defendant Prabhulal was in exclusive and hostile possession of the suit property from tbe 4th January, 1928, onwards (that being the date of the death of Mst. Jarao Kanwar), and that the possession of defendant No. 2 Khairatilal from the 12th December, 1937, to the 21st May, 1946, during which period the possession of Prabhulal stood taken away from him on account of the decree of the trial court in Khairatilal's suit, could not arrest the adverse nature of Prabhulal's possession over the suit house, once the possession thereof was handed over to him back in execution as a result of the decision of the Judicial Committee of the former Jaipur State, and, therefore, even if the question of adoption were to be left alone, the defendant had perfected his title over the disputed property by 12 years' adverse possession against the plaintiff or any other heir of the deceased Rajmal. Consequently, the defendants prayed that the plaintiff's suit deserved to be dismissed.
(3.) THE learned District Judge dismissed the plaintiff's suit. His findings, briefly put, were thai Prabhulal was validly adopted by Mst. Jarao Kanwar to her deceased husband Rajmal and that it had been proved that a giving and taking ceremony had taken place in relation thereto, and, further, that the alleged Subsequent cancellation of the adoption by Jarao Kanwar was of no effect in law, and, therefore, did not affect his status as Rajmal's adopted son. The learned Judge also found that Prabhulal had come in possession of the suit property, at any rate, in August, 1928, on the death of Chandkanwar and he remained in possession thereof uptil 22nd December, 1937, when his possession was taken over and delivered to Khairatilal as a result of the trial court having decreed the latter's suit on the 27th November, 1937, but that decree was reversed and the property was restored to Prabhulal on the 22nd May, 1946, and the present suit was filed on the 20th November, 1946, and in these circumstances, the learned Judge held that Prabhulal would have continued in possession till the date of the filing of the present suit but for the erroneous decrees of the trial and the first appellate courts in Khairatilal's suit, and, so Prabhulal's possession having been restored to him as a result of the final court's decree it should be treated as continuous, or, that, in other words, he was in adverse possession of the suit property from 1928 upto the time of the present suit which was brought in November, 1946, and, therefore, the plaintiff's present suit was barred by limitation. The plaintiff has now come up in appeal against this decree. ;