Mst. Bajji v. Bhairon — 1956 DIGILAW 295 (RAJ)

Bapna, J.—This is a second appeal by the defendant in a suit for possession. 2. The respondent Bhairon instituted the suit in the court of Munsif, Swai Madhopur, on 18th April, 1950, on the allegations that he and one Mst. Manni purchased a house in Mohalla Har Sahaiji ka Katla at Sawai Madhopur on 31st July, 1928, for a consideration of Rs. 190/-, and there-after the plaintiff remained in possession thereof. About 7 years ago, the plaintiff wanted to shift his residence to his field, and Gyarsi, grand-mother of Bajji, requested him for permission to occupy the the house, as she had none other house to live in. The plaintiff gave permission to Gyarsi and to his wife Jagni, mother of the defendant to live in the house. It was alleged that Gyarsi had died, but Jagni and Bajji continued to live in the house. Jagni had since contracted re-marriage, and Bajji went to her husbands house, and, therefore, the plaintiff asked them to give back the house to him, but Bajji asserted her own claim in survey proceedings, and denied the plaintiffs title on 30th November, 1949, which made it necessary for the plaintiff to institute the present suit for possession. 3. Jagni said that she had no concern with the house, but Bajji contested the suit. She alleged that the real owner of the house was Mst. Manni, and the plaintiff Bhairons name was only inserted in the sale deed because Manni wanted to take him in adoption. It was alleged that the real owner was Manni and the plaintiff had no concern with the house, and that Manni by her will bequeathed the house and other property to Gyarsi, by another will bequeathed that property to Bajji. It was alleged that the house had been in the possession of the defendant and her said predecessor-in-title ever since it was purchased, and the entire allegations as to granting of permission to Gyarsi and Jagni were false. 4. The plaintiff did not allege in the body of the plaint that he was the adopted son of Ganesha, husband of Manni, but since he had mentioned himself as the son of Ganesha and it was for that reason alone that he could claim to have succeeded to the estate of Manni, the matter of adoption was put in issue. 5. Several issues were framed. 5. Several issues were framed. The trial court, after evidence, came to the conclusion that Bhairon was not the adopted son of Ganesha, and that the house had been purchased by Manni with her own money, and the plaintiff, who was then a minor, did not contribute any sum towards the purchase, and his name was only inserted because he was intended to be adopted. The possession of Bajji and her predecessor-in-title Gyarsi for more than 12 years was held proved, and the suit was held to be barred by limitation under Article 142 of the Limitation Act. The suit was accord-ingly dismissed. 6. On appeal, the learned Civil Judge was of opinion that the evidence-as to adoption of the plaintiff by Ganesha, husband of Manni, though discrepant was supported by the mention of the plaintiff being the son of Ganesha in the sale deed of the house and by the fact of his being in possession of the other property of Ganesha. He held that the plaintiff, though a minor at the time of the purchase of the house, was earning something, and was in a position to contribute towards the purchase money. He held that the will by Manni had not been proved according to law, and that Gyarsis will, though proved, could not affect Mannis property. In any case, it was held that Gyarsi had died 7 or 8 years before the suit, and the defendant Bajjis possession, which began thereafter was for a period of less than 12 years. The appeal was accordingly allowed, and the judgment and decree of the lower court were set aside, and the plaintiffs suit for possession was decreed with costs. Mst. Bajji has come in second appeal. 7. It was argued by learned counsel for the appellant that the lower court had not considered the case from a proper perspective. The finding as to the plaintiff being the adopted son of Ganesha was based on no evidence and important documentary evidence was not considered. The trial court had given a definite finding that the occupation of the house by Gyarsi and Bajji had not been proved to be permissive, but was in their own right as owners, and the plaintiff was not proved to be in possession within 12 years, and the suit was barred under Article 142 of the Limitation Act. 8. The trial court had given a definite finding that the occupation of the house by Gyarsi and Bajji had not been proved to be permissive, but was in their own right as owners, and the plaintiff was not proved to be in possession within 12 years, and the suit was barred under Article 142 of the Limitation Act. 8. Learned counsel for the respondent supported the lower courts decree, and urged that Article 144 of the Limitation Act was applicable and the burden of proof was on the defendant to prove that her title had been completed by adverse possession, and in the present case the defendants possession was at the most for seven years after the death of Gyarsi, and was, therefore, insufficient to create the bar of limitation. 9. The sale deed of the house in dispute is in the name of Manni. widow of Ganesha, and the plaintiff, described as the son of Ganesha If the adoption is proved, then the plaintiffs title to the property is obvious, unless it can be displaced by the other pleas which have been raised in defence, and which will be considered hereafter. The lower court, as stated above, was conscious that the evidence led by the plaintiff was very discrepant in this respect. It, however relied on two factors, viz., the mention of the plaintiff as the son of Ganesh in the sale deed (copy marked Ex. 1, dated 31st July, 1928) and the fact of the plaintiff being in possession of certain lands of Ganesha. The learned Judge, however, failed to consider the document Ex. Y purporting to be a will by Manni executed by her on 17th December, 1930. The learned Judge was of opinion that this was a document required by law to be attested and was not proved in accordance with section 68 of the Evidence Act, as none of the attesting witnesses, though one of them was alive, was produced to prove it. It may be pointed out that the law in Jaipur State requiring a will to be attested was for the first time enacted in 1943. This is Jaipur Succession Act, 1943 (Act No. XIX of 1943), which received the assent of His Highness on the 24th of May, 1943. No law has been pointed out, which may have required a will to be attested in the year 1930. The will Ex. This is Jaipur Succession Act, 1943 (Act No. XIX of 1943), which received the assent of His Highness on the 24th of May, 1943. No law has been pointed out, which may have required a will to be attested in the year 1930. The will Ex. Y, therefore, could be proved in the ordinary way like any other document. It is a registered document, and Madholal D. W. 7 has proved that this will Ex. Y was scribed by him under instructions of Manni, and Manni herself affixed her thumb-impression, after the witness had read over and explained the will to her. There is no reason to disbelieve the evidence of Madholal, and the document Ex. Y should be held to be duly proved. In this document Manni-has recorded that she had no son. We have, therefore, a document Ex. 1 of the year 1928, the sale deed, in which the plaintiff Bhairon is described as the son of Ganesha, and there is also another document Ex. Y of the year 1930, in which it is stated by Manni that she had no son. No reason has been suggested why Manni should have discarded the plaintiff, if he had been adopted as the son of Ganesha. At any rate, there are two different statements in two documents to which Manni was a party, and therefore, mention of the plaintiff as the adopted son in the earlier document is of little value, unless the change in the second document can be explained. In the present case, an explanation has been put forward by the defendant that the plaintiff was intended to be adopted by Manni, and, therefore, his same was mentioned as one of the vendees with parentage of Ganesha in the sale-deed. The explanation by itself may not be wholly explainable, but when the evidence in respect of the adoption is thoroughly unreliable, the explanation becomes plausible. 10. In respect of the adoption four witnesses have testified, viz., Bhairon, plaintiff P. W. 3, Ramchandra, P. W. 2, Bhonria P. W. 1, and Mola Baksh, P.W., 4. The plaintiff stated his age to be 35 (when he gave his statement in January, 1951). 10. In respect of the adoption four witnesses have testified, viz., Bhairon, plaintiff P. W. 3, Ramchandra, P. W. 2, Bhonria P. W. 1, and Mola Baksh, P.W., 4. The plaintiff stated his age to be 35 (when he gave his statement in January, 1951). He admitted in cross-examination that he knew nothing personally of the adoption, but his adoptive mother Manni used to say that he had been adopted by Ganesha He has further admitted that he was married at the age of 1, 2, 3 or 3-1/2 years after the adoption, and his age at the time of the purchase was 13 or 14 years. Ramchandra, who gave his age as 60, said in cross-examination that at the time of adoption the age of the witness was about 13 years. The adoption thus took place 42 years ago when even the plaintiff was not born. This witness further said that the house in dispute was purchased by Ganesha and thereafter Ganesha, Bhairon and Manni all lived in it for some time. This is not true, because the purchase was made by Manni after the death of Ganesha. Bhonria P. W. 1, put the adoption about 25 or 30 years ago, but said in cross-examination that Ganesha was then 20 or 25 years old. No reason was given by the witness why Ganesha decided to take a son in adoption at that age when he could himself expect to be father of a child. Maula Baksh said in cross-examination that he derived his knowledge of the adoption of the plaintiff because Manni told him so on one occasion, although he himself did not see the ceremony of adoption. The fact of the field of Manni being in possession of Bhairon is no doubt admitted by the defendant, but she has stated that this possession is unlawful, and she would take steps to recover that property as well. It may be that her threat to recover possession is empty, but she had not taken to the possession of Bhairon quitely. In this state of evidence, it is not possible to hold that the plaintiff has been proved to be the adopted son of Ganesha. It may be that her threat to recover possession is empty, but she had not taken to the possession of Bhairon quitely. In this state of evidence, it is not possible to hold that the plaintiff has been proved to be the adopted son of Ganesha. It has been held in a large number of authorities that the onus of proof of adoption lies heavily on the person who sets up the adoption, because the adoption purports to affect the right of heirs who inherit the property. The evidence in the present case is very discrepant, and is totally insufficient to prove adoption. 11. As to the plaintiff himself being one of the vendees, the trial court has accepted the explanation submitted on behalf of the defendant that his name must have been insetted because of an intention to adopt him. The adoption not having been proved, the admission of the plaintiff being the adopted son strongly supports the explanation. But the first appellate court has held that the plaintiff may have contributed towards the cost of the purchase. Bhairon has said that he was then earning 12 to 13 annas per day. He was then not more than 12 or 13 years of age, and the wages which the plaintiff says he was earning as a labourer are just about double of what an adult labourer could get in those days. He has, however, not said what amount was contributed by him. On the other hand Maula Baksh has admitted that Manni was a rich woman, and had a lot of money with her. She could not obviously require any financial assistance from the plaintiff, who was a mere boy at the time. The appellate court has committed error in overlooking the above statement of Maula Baksh and has therefore come to wrong conclusion. 12. In the absence of the plaintiffs adoption, Gyarsi was the heir at law of Mst. Manni both under the Hindu law and under the will executed by Mst. Manni. Gyarsi by her will bequeathed the property to Bajji, and that will, Ex. X, dated 14th October, 1944, has been held proved according to law by both the lower courts. 13. The above findings alone are sufficient for the disposal of the suit, for if the plaintiff had no title to the property, his suit is liable to be dismissed. Gyarsi by her will bequeathed the property to Bajji, and that will, Ex. X, dated 14th October, 1944, has been held proved according to law by both the lower courts. 13. The above findings alone are sufficient for the disposal of the suit, for if the plaintiff had no title to the property, his suit is liable to be dismissed. Assuming, however, that the plaintiff had a title to the property on the death of Manni, and was in possession of the property for some time", on the facts pleaded Article 142 of the Limitation Act becomes applicable. 14. It is necessary first of all to find out whether the plaintiff has proved that Gyarsi was let into possession under a permission of the plaintiff. If this is so, then the cause of action to the plaintiff would only arise on repudiation of the plaintiffs title. If however, the defendant and her predecessors possession is not proved to have originated under a permission of the plaintiff different considerations will apply. The first appellate court has not discussed this aspect of the case. Six witnesses have been produced on behalf of the plaintiff, Bhonria P. W. 1, Ramchandra, P. W. 2, Bhairon plaintiff P. W. 3, Maula Baksh. P.W. 4, Nathulal, P.W. 5, and Minglia, P. W. 6. The plaintiff said that he remained in possession after the death of Manni for one year, and thereafter permitted Jagni and Gyarsi to occupy the house The sale-deed remained in a box in the house. He admitted in cross-examination that Gyarsi had a pacta house of her own. He admitted that there was no one else in whose presence this home was given to Gyarsi and Jagni for residence. He said that he was at his field when these women wanted to occupy the house and he handed over the key of the house and told them to go and live in the house. There was no document in support of the permission having been granted to Gyarsi and Jagni by the plaintiff to live in the house, and there was no person in whose presence this permission was given. We have, therefore, only the plaintiffs word in support of the fact of Gyarsi and Jagni having been granted permission to occupy house about 7 years before the institution of the suit, i.e., some time in 1943. We have, therefore, only the plaintiffs word in support of the fact of Gyarsi and Jagni having been granted permission to occupy house about 7 years before the institution of the suit, i.e., some time in 1943. It may be mentioned that P.W. 6 Manglia was also produced in support of the permission and he said that he was present at the field when permission was given, but in view of the statement of the plaintiff himself, that nobody was present, Manglias evidence is unreliable. 15. The evidence for the defendant Bajji alias Bajrangi is that after the death of Manni, Gyarsi occupied the house and after the death of Gyarsi Bajji continued in possession. The will by Gyarsi has been held proved by the two courts, and, therefore, Bajjis possession partakes of the property. Ramchandra D.W. 3 said that Manni died 14 or 15 years ago. She lived in the house in dispute, and thereafter Gyarsi and Bajji lived in the house. Phulia stated similarly, and to the same effect is the statement of Ruggha. As regards the plaintiffs possession this witness stated that he lived for some time in the lifetime of Manni, but some dispute arose and thereafter even in the lifetime of Manni he did not live in the house. The defendants evidence in short is to the effect that alter the purchase Manni lived in the home and on her death Gyarsis possession began and on Gyarsis death, Bajjis possession continued. Bajji (Bajrangi), D. W. 1. denied that her grand-mother Gyarsi or her mother Jagni had entered into possession under permission of the plaintiff. It is obvious at any rate that on the date of execution of the will in 1930 the relations between the plaintiff and Manni were not as cordial as could be expected between a mother and ton, assuming here that the plaintiff had been adopted by Ganesh. In any case, from the moment of Mannis death the plaintiff had become entitled for possession of the property, and the evidence is entirely deficient as to his possession from that moment. The plaintiffs case, as stated earlier, was that he was in possession of the property and came to be dispossessed when his title was denied. The permissive possession of the defendant having been disproved, the plaintiff in order to succeed must prove his possession within 12 years. 16. The plaintiffs case, as stated earlier, was that he was in possession of the property and came to be dispossessed when his title was denied. The permissive possession of the defendant having been disproved, the plaintiff in order to succeed must prove his possession within 12 years. 16. As far back as 1888, their Lordships of the Privy Council held in Mohima Chundar Mozoomdar vs. Moheschundar Neogi (1):— "It is not the law that where plaintiffs are shown to be the rightful owners of the land in suit, it is tor the defendants to show that they are entitled to retain possession. In Nawab Muhammad Amanulla Khan vs. Badan Singh (2) their Lordships further observed that Article 144 of the Limitation Act relating to adverse possession only applied where no other Article was specially applicable. In Beharilal vs. Narain Das (3). the plaintiffs came to court with the allegation that the defendant Nabi Baksh was a tenant, and he had sub-let the premises to defendant No. 2, In a suit brought for arrears of rent, a decree was passed against Nabi Baksh, but the suit was dismissed against the other defendant. The plaintiffs, therefore, brought the suit for possession. It was held that the pleadings made out a case of possession and dispossession and it was observed that— "It is not necessary for the purpose of deciding this question that the plaintiffs should have alleged this in so many words. What is necessary is whether of the allegations of fact made by them it is either alleged to follow as a necessary inference that they alleged possession and dispossession. Now, the plaintiffs alleged title in themselves and alleged that they had put Nabi Baksh into possession as their tenant in 1927. They therefore alleged that prior to 1927 they were themselves in possession or that, at any rate, they were in constructive possession through their tenant Nabi Baksh in 1927." It was held that Article 142 of the Limitation Act was applicable. 17. Applying the aforesaid principles, the plaintiffs failure to prove permissive possession of Gyarsi made it necessary for him to prove that he was in possession within 12 years. In this he has completely failed, and the trial court very rightly dismissed the suit. 18. 17. Applying the aforesaid principles, the plaintiffs failure to prove permissive possession of Gyarsi made it necessary for him to prove that he was in possession within 12 years. In this he has completely failed, and the trial court very rightly dismissed the suit. 18. The appeal is, therefore, allowed, the judgement and decree of the lower court are set aside, and the plaintiffs suit is dismissed with costs throughout.