JUDGMENT 1. - The instant first appeal has been preferred against the judgment and decree dated 1.2.1979 passed by the learned Additional District Judge, Sirohi. 2. Brief facts necessary for disposal of the instant first appeal are that one Heera Chand, his son Bheru Mal and his mother Smt. Sangari filed a Civil Suit No. 11 of 1974 against Prem Chand and three others for possession of the suit-house and mesne profits. It is alleged by the plaintiffs in the plaint that defendant No. 3 Ratan Chand and plaintiff Heera Chand are real brothers but Ratan Chand was given in adoption to Prithvi Raj, who was real brother of deceased Man Mal. It is also alleged that Ratan Chand was given in adoption 59 years ago from the date of filing of the suit to Prithvi Raj. Man Mal and his brother Prithvi Raj were members of a joint Hindu Family. In 1955 A.D. the plaintiff and Ratan Chand partitioned the property of Joint Hindu Family and in that partition, the house in question situated in village Khudala, Tehsil Bali District Pali fell to the share of plaintiff Heera Chand. According to the plaint allegations, the above oral partition was recorded into a Memorandum at Bombay on 10.1.1955. It is also alleged in the plaint that the plaintiffs are living in the disputed house as exclusive owners from the time of partition. In the plaint, the plaintiffs have also alleged to have acquired right by way of adverse possession. A plea of adverse possession was taken in alternative. 3. It is also alleged in the plaint that Prem Chand and Kewal Chand obtained a decree against defendant No. 3 Ratan Chand in the Civil Suit No. 136/68 and in Execution Case No. 101/71 forcibly evicted plaintiff No. 3 and defendant No. 4 (wife of plaintiff No. 1 Heera Chand) who were living in the suit-house in their own right and on behalf of plaintiffs Nos. 1 and 2. In execution of decree, the possession was obtained on 25.4.71. The plaintiffs Nos. 1 and 2 moved an application under O. XXI, r. 100, CPC but the same was rejected by order dated 25.5.74, hence, the plaintiffs filed the instant suit for possession and also claimed damages at the rate of Rs. 30/- per month for use and occupation. In execution of decree, the possession was obtained on 25.4.71. The plaintiffs Nos. 1 and 2 moved an application under O. XXI, r. 100, CPC but the same was rejected by order dated 25.5.74, hence, the plaintiffs filed the instant suit for possession and also claimed damages at the rate of Rs. 30/- per month for use and occupation. Defendant No. 3 Ratan Chand did not contest the suit inspite of due service upon him. Defendant No. 4, after due service, did not appear before the Court, therefore, the suit proceeded ex parte against them. 4. Defendant No.1 Prem Chand and defendant No. 2 Kewal Chand contested the suit filed by plaintiffs No. 1 and 2, by filing a detailed written statement denying the ownership, title of the plaintiffs and partition made in the year 1955. The defendants alleged in their written statement that the house-property had been divided from the time of Man Mal and Prithvi Raj and in that partition, it fell to the share of Prithvi Raj. They also alleged that the so-called partition deed dated 10.1.55 is not receivable in evidence as it requires registration. The defendants also averred that Ratan Chand (Defendant No" 3) sold the suit property in question to them on 30.7.1957 by a 'registered Sale-deed and handed-over its possession to them. 5. After filing the written statement, the plaintiffs filed their replication as contemplated under the Code of Civil Procedure and denied the allegations made by the contesting defendants No. 1 and 2 in their written statement and reiterated the averments made in the plaint. 6. On the basis of pleadings of the parties, as many as 14 issues were framed by the learned Additional District Judge, Sirohi. 7. Both the parties were allowed to adduce their evidence. The plaintiffs examined four witnesses, namely; PW 1 Heera Chand, PW 2 Otar Mal, PW 3 Pukh Raj and PW 4 Amar Singh and produced Ex. 1 Partition Deed dated 10.1.1955, Ex. 2 Warrant of possession, Ex. 3 notice given by the plaintiffs through their counsel and Ex. 4 reply to the said notice given on behalf of the contesting defendants through their counsel. 8. The contesting defendants examined four witnesses, namely; DW I Kewal Chand, DW 2 Rikhab Chand, PW 3 Than Chand and DW 4 Sohan Raj. The defendants also adduced documentary evidence Ex. 3 notice given by the plaintiffs through their counsel and Ex. 4 reply to the said notice given on behalf of the contesting defendants through their counsel. 8. The contesting defendants examined four witnesses, namely; DW I Kewal Chand, DW 2 Rikhab Chand, PW 3 Than Chand and DW 4 Sohan Raj. The defendants also adduced documentary evidence Ex. A/1 statement given by Heera Chand in Civil Misc. Case No. 8/71 admitting the partition of the house-property during life time of Man Mal and his real brother Prithvi Raj, Ex. A/2 and Ex. A/4 are the extract of Accounts Books, Ex. A/3 sale deed dated 30.7.1957 executed by Ratan Chand in favour of defendants No. 1 and 2. 9. After hearing the arguments of learned counsel for the plaintiffs as well as learned counsel appearing on behalf of the defendants, learned Addl. District Judge after analytical discussion of the oral and documentary evidence adduced by the parties, recorded a categorical finding to the effect that the plaintiffs miserably failed to establish the partition-deed dated 10.1.1955 (Ex. 1). As according to him, the aforesaid partition deed was not receivable in evidence. Learned trial Judge recorded further categorical finding that admission made by PW I Heera Chand on 22.7.72 in the proceedings under O. XXI, r. 100, CPC is conclusive proof of fact that the partition took place during the life time of Man Mal and his brother Prithvi Raj. It is further held that the disputed house fell into the share of Prithvi Raj. According to learned Addl. District Judge, defendant No. 3 being adopted son of Prithvi Raj, was entitled to sell the entire house to the defendant. 10. Learned Additional District Judge after analytical discussion of oral and documentary evidence on record further recorded a finding to the effect that the plaintiffs have no right, title or interest to claim the suit house in question and as such they are not entitled to recover possession from the contesting defendants. 11. Aggrieved from the aforesaid judgment and decree, the present appellants have filed the instant appeal before this Court challenging the judgment and decree passed by the trial Court on many of the grounds enumerated in the memo of appeal. 12. 11. Aggrieved from the aforesaid judgment and decree, the present appellants have filed the instant appeal before this Court challenging the judgment and decree passed by the trial Court on many of the grounds enumerated in the memo of appeal. 12. This first appeal came up for hearing before a learned Single Judge of this Court on 4.2.92 and in the opinion of the learned Single Judge, the trial Court was not justified to declare that the alleged partition deed dated 10.1.55 is not receivable in evidence. Therefore, vide order dated 4.2.92, the case was remitted to the learned trial Court to allow both the parties to adduce evidence to prove the partition deed dated 10.1.55. 13. In pursuance of the order dated 4.2.92 passed by the learned Single Judge, the record of the case-file was remitted to the leaned trial Court. 14. Irrespective of due service, the plaintiffs did not appear before the trial Court on 23.3.92. The trial Court waited upto 4.30 p.m. on that day and ultimately taking a lenient view, the case was adjourned to 13.4.92 giving further opportunity to the plaintiffs to prove the partition-deed dated 10.1.55 by oral and documentary evidence. It is pertinent to note that on 13.4.92, counsel for the defendants was present but no one appeared on behalf of the plaintiffs. Since plaintiffs and their counsel did not care to adduce evidence to prove the partition deed dated 10.1.55 (Ex. 1) therefore, counsel for the defendants expressed his inability to adduce evidence in rebuttal. In absence of any evidence adduced by the plaintiffs, the case was adjourned by the learned trial Court for argument on 17.4.92. On 17.4.92, neither the plaintiffs nor their counsel appeared in Court to prove the partition deed dated 10.1.55. The trial Court heard the arguments on behalf of the defendants and the case was posted for orders on 18.4.92. 15. Now, I have critically examined the finding recorded by the learned Additional District Judge, Bali dated 18.4.92, according to which, the plaintiff-appellants failed to prove the partition- deed dated 10.1.55 (Ex. 1). According to the learned trial Court, since no evidence was adduced by the parties, therefore, the finding which has already been recorded by the learned trial Judge on this point remained intact. 16. I have heard learned counsel for the appellants and learned counsel appearing on behalf of the contesting respondents. 17. 1). According to the learned trial Court, since no evidence was adduced by the parties, therefore, the finding which has already been recorded by the learned trial Judge on this point remained intact. 16. I have heard learned counsel for the appellants and learned counsel appearing on behalf of the contesting respondents. 17. Learned counsel for the appellants, in view of the finding remitted by the learned Additional District Judge is not able to substantiate this first appeal before me. He expressed his inability to assail the validity and propriety of the judgment and decree passed by the learned trial Court in view of the order passed by the learned Single Judge of this Court on 4.2.92 and also in view of the finding remitted by the learned trial Judge vide his order dated 18.4.92 to this Court. In my considered opinion, if the plaintiffs failed to prove the partition deed dated 10.1.55 (Fx. 1) then admission made by Heera Chand in Civil Misc. Case No. 8 of 1971 on 22.7.72 is binding on them admitting the partition of house in question between Man Mal and his real brother Prithvi Raj and his further admission to the effect that disputed house fell in the share of Prithvi Raj. I have critically examined the statement of PW 1 Heera Chand. He miserably failed to explain his admission dated 22.7.72 given by him in Civil Misc. Case No. 8 of 1971. 18. In my considered opinion, after taking into consideration, the admission of PW I Heera Chand dated 22.7.72 there is no alternative except to come to the conclusion that there was partition between Man Mal and Prithvi Raj during their life time and the disputed house fell in the share of Prithvi Raj. Undeniably, defendant No. 3 Ratan Chand is adopted son of Prithvi Raj, therefore, he has every right to execute a registered sale- deed on 30.7.57 in favour of the contesting respondents and an allegation contrary to it is devoid of truth and merit. 19. After analytical discussion of oral and documentary evidence on record, the learned Additional District Judge has rightly dismissed the suit filed by the plaintiff-appellants. 19. After analytical discussion of oral and documentary evidence on record, the learned Additional District Judge has rightly dismissed the suit filed by the plaintiff-appellants. Learned trial Judge has given cogent and convincing reasons in support of his finding that the partition took place between Man Mal and Prithvi Raj during their life time and house in question had fallen in the share of Prithvi Raj and Ratan Chand (defendant No. 3) has every right, title and interest to execute a registered sale-deed in favour of the contesting defendants. I am at one with the aforesaid finding recorded by the learned trial Court and I do not find any reason or ground to interfere with the judgment and decree passed by the learned trial Court.As a result of the aforesaid discussion, the instant appeal lacks merit, so, it is hereby dismissed with costs assessed to Rs. 2000/-.Appeal dismissed. *******