JUDGMENT 1. This is a second appeal by the defendants against the decree granted in favour of plaintiff for restoration of possession by the Courts below in concurrent manner. 2. Following two pedigrees of different families are essential for the present appeal :- Pedigree No. 1 Chain Singh Shankar Singh Takhat Singh Vishwanath Baijnath Bhagwan Singh died in (Plaintiff) 1931 gone in adoption to Hari Singh Prahalad Singh Gowardhan Singh Ganpat Nahar Singh Defendant Defendant Defendant Defendant No. 1 No. 2 No. 3 No. 4 Pedigree No. 2 Madhav Singh Jagirdar of Jagir Mundhara .Hari Singh Baijnath (Adopted son) 3. Admitted facts are that the suit relates to Jagir property of Jagir Mundhara. Madhav Singh was its Jagirdar, who was succeeded by his son Hari Singh. Hari Singh, during his life time, had adopted Baijnath from his natural father i.e. Shankar Singh. Thus, Baijnath was adopted son of Hari Singh and had died in the year 1931. 4. Suit giving rise to the present appeal was instituted by Bhagwan Singh with allegations that he was adopted son of Baijnath. Suit property is in possession of defendants without any title or lawful authority, because it being a Jagir property of Baijnath, the plaintiff has succeeded to it on account of being adopted son of Baijnath. It is alleged that in April, 1969, defendants demolished the boundry wall of the suit property and constructed a new one in it’s place. Defendants, who are in occupation of double storied suit property with permission of the plaintiff, asserted their own title. Hence, the suit was instituted in May, 1969 for restoration of possession with mesne profits and perpetual injunction. 5. Defendants submitted a joint written statement, refuting thereby the claim of the plaintiff. They, inter alia, denied that Baijnath had adopted Bhagwan Singh, the plaintiff. Moreover, Bhagwan Singh, being the natural brother of Baijnath, could not have been adopted by the latter. They stated that they are in occupation of the suit property as it’s owner. They denied that the plaintiff has any right, title or interest in the suit property. 6. Learned trial Judge, on the basis of evidence, while deciding issue No. 12 and 13 held that the suit property is Jagir property belonging to Baijnath. Learned trial Judge in paragraph 11 of his judgment further found that the plaintiff was not adopted son of Baijnath. 6. Learned trial Judge, on the basis of evidence, while deciding issue No. 12 and 13 held that the suit property is Jagir property belonging to Baijnath. Learned trial Judge in paragraph 11 of his judgment further found that the plaintiff was not adopted son of Baijnath. However, learned trial Judge granted decree in plaintiff’s favour holding that Baijnath died issue less and the plaintiff being nearest heir of the deceased Baijnath is entitled to succeed and is further entitled to restoration of possession. Accordingly, suit was decreed in plaintiff’s favour vide judgment and decree dated 11.01.1993. 7. Aggrieved by the aforesaid, defendants preferred Civil Appeal No. 114-A/1999, which having been dismissed vide judgment and decree, present second appeal has been preferred. It is not out of place to mention here that plaintiff did not submit cross-objection neither in the lower appellate Court nor before this Court against the findings that he is not an adopted son of Baijnath. 8. This appeal has been heard on the following two substantial questions of law :- “1. Whether, in the absence of any pleading and proof that the law of primogeniture is applicable in the present case and property being exclusive property of Jagir property whether the decree is sustainable in law? 2. Whether in the absence of proof of adoption of the plaintiff, can plaintiff get the right in Jagir Property?” Substantial Question of Law No. 1 9. Although defendants/appellants in the written statement denied that the property in question is a Jagir property, the same has been found by the trial Court, on the basis of evidence on record. Takhat Singh, father of the defendant approached MUNTAJIM JAGIRDARAN of Gwalior Government in the case regarding mutation, as revealed in Ex. D/2. Had it been a private property or any property other than of Jagir, he would not have approached MUNTAJIM JAGIRDARAN of Gwalior Government and instead would have raised objection about jurisdiction. This apart, learned trial Judge has discussed evidence in paragraph 12 to 14 of its judgment and has found that it was a Jagir property. 10. Hon’ble Supreme Court of India in the case of Dattatraya alias Prakash and others v. Krishna Rao alias Lala Seheb Baxi through L.Rs. etc. (1991 RN 408 = AIR 1991 SC 1972 ) has clearly held that succession to Jagir property is governed by the rule of primogeniture. 10. Hon’ble Supreme Court of India in the case of Dattatraya alias Prakash and others v. Krishna Rao alias Lala Seheb Baxi through L.Rs. etc. (1991 RN 408 = AIR 1991 SC 1972 ) has clearly held that succession to Jagir property is governed by the rule of primogeniture. It has been clearly observed :- “26. It is also thus well settled law that the right of joint enjoyment which is ordinary incident to a coparcenary, where the joint estate is partible is excluded by the rule of primogeniture and impartibility. The income of an impartible estate and the accumulation of such income are the absolute properties of the holder. The immovable properties would be incorporated with impartible estate. It must be proved that the holder had impressed the immovable properties as part of the estate. But the movable properties will not. Movable are not an accretion to the estate as in the case of an ordinary joint family estate. 27. It is seen that the grant of Chandurpur Jagir was in perpetuity and the enjoyment is from generation to generation. Geneology abstracted hereinbefore establishes that devolution by survivorship to the eldest male member continued till time of Dwarakanath and the respondent received only maintenance from the Jagir estate. What was implicit was made explicit by Quaid Jagirdaran issued in Samvat 1976 by the Maharaja Scindia of Gwalior State. In paragraph 2 thereof it has been stated that Jagir grant shall be indivisible and impartible property. In paragrpah 2 of the preamble it is stated that the Jagir in its entirety would continue in the family in which they were conferred. Thus it is indivisible and impartible and succeeded by lineal eldest descendant of the family by rules of primogeniture.” 11. Application of rule of primogeniture is a question of law and same is rightly made applicable to the present case. Since it has been found that suit property is Jagir property, substantial question of law No. 1 is answered accordingly. Substantial Question of Law No. 2 12. Coming to substantial question of law No. 2, it is observed that adoption of the plaintiff by Baijnath has not been accepted by both the Courts below in concurrent manner. The appellants neither in the lower appellate Court; nor before this Court submitted objections to the findings that Bhagwan Singh is not adopted son of Baijnath. Coming to substantial question of law No. 2, it is observed that adoption of the plaintiff by Baijnath has not been accepted by both the Courts below in concurrent manner. The appellants neither in the lower appellate Court; nor before this Court submitted objections to the findings that Bhagwan Singh is not adopted son of Baijnath. Learned senior advocate for the plaintiff/respondent has not chosen to challenge finding against the plaintiff in respect of alleged adoption, while arguing present appeal. Thus, it may be conveniently concluded that the plaintiff was not adopted son of Baijnath. 13. Now the crucial question which comes up for consideration before this Court is that whether plaintiff succeeded to the suit property by virtue of natural inheritance. 14. Since Baijnath died in the year 1931, succession to his Jagir property would be governed by Chapter II of QWAID JAGIRDARAN. 13. Now the crucial question which comes up for consideration before this Court is that whether plaintiff succeeded to the suit property by virtue of natural inheritance. 14. Since Baijnath died in the year 1931, succession to his Jagir property would be governed by Chapter II of QWAID JAGIRDARAN. Sections 3 and 4 of the said Act, read as under :- ^^gj tkxhj] tks flQZ ,d ghu g;krh vfr;k u gks] tkxhjnkj eqroQh dh vkSykn ujhuk dh ‘kk[k vdcj dks fojklru feysxh( elyu ,d vfr;snkj dh gLc ‘ktjk tSy vkSykn gS%& v ¼vfr;knkj½ c d M t bZ Q x g ; {k u y x ^v* dh oQkr ij tkxhj ^c* dks fojklru feysxh vkSj ^c* ds ckn ^bZ* dks vkSj ^bZ* ds ckn ^{k* dks feysxh] 4- tc fd og ‘k[l tks c fygkt djkcr ds lc ls T;knk bLrgdkd fojklr j[krk gS( c otg %& ¼v½ fcjknjh ls [kkfjt gksus] ¼c½ lq[kZ ;k lQsn tqtke ;k fdlh nhxj ftLekuh ukdkcfy;r] ¼d½ tquwu] ¼M½ fdlh nwljs lcc ds] ukdkfcy gks rks mldk gd fojklr mlds yMds ;k nwljs djhcrj okfjl tk;t dks igqapsxk] ftlesa ,sls uqDl u gks] exj ‘krZ ;g gS fd otwgkr eqUntsZ ckyk dh cqfu;kn ij eg:eqyblZ gksus dh gkyr esa ‘k[l eg:eqyblZ tkxhj ls uDnh uku o udk ikus dk eqLrgd gksxk- tquwu dh cqfu;kn ij eg:eqyblZ djkj nsus ds fy;s t:jh gksxk fd tquwu dkSeh iapk;r ds lfVZfQdsV ds tfj;s ls lkfcr fd;k tkos vkSj mldh rkbZn ,sls rcfc ds lfVZfQdsV ls gks ftls xouZesUV rlyhe djsa- *eqrvfYyd tkxhjnkjku vgys blyke- eqLyeku tkxhjnkjksa dh oQkr ds ckn tkxhj eqQfLlys tSy oqjlk; dks bl flyflys ls igqapsxh fd %& ¼1½ tkxhjnkj ds ejus ds ckn mldk lc ls cM+k yM+dk eqLrgd tkxhj dk gksxk] vxj cM+k csVk vius cki dh ftanxh esa ej x;k gks rks eqroQh tkxhjnkj dk nwljk csVk eqLrgd tkxhj dk gksxk( [okg ml cM+s csVs us] tks tkxhjnkj dh ftUnxh esa ej pqdk gS] vkSykn ujhuk gh D;ksa u NksM+h gks] blh rjg vxj nwljk csVk Hkh vius cki dh ftUnxh esa ej pqdk gks rks eqroQh tkxhjnkj dk rhljk csVk eqLrgd tkxhj dk gksxk( [okg igys vkSj nwljs csVs dh vkSykn ujhuk ekStwn gh D;ksa u gks] blh rjg nfxj csVksa dh gkyr esa] ¼2½ vxj eqroQh tkxhjnkj ds pan csVs gks tks lc ds lc vius cki dh ftUnxh esa ej pqds gksa rks bl lwjr esa eqroQh tkxhjnkj dh fojklr dk bLrgdkd mlds eqroQh QjtUns vdcj ds cM+s csVs dks vkSj vxj cM+k csVk ftUnk u gks rks QjtUns vdcj ds nwljs csVs dks gksxk vkSj blh rjg nwljs csVs dh gkyr esa] blh rjg vxj QjtUns vdcj dh ‘kk[k esa dksbZ vkSykn ujhuk u gks rks eqroQh tkxhjnkj ds nwljs csVs dh vkSykn ujhuk dks fojklr igqapsxh vkSj blh rjg vkSj csVksa dh gkyr esa] ¼3½ vxj eqroQh tkxhjnkj dk dksbZ csVk ftUnk u gks vkSj mu csVksa dh ‘kk[k esa dksbZ vkSyn ujhuk ekStwn u gks rks gLc tSy v’k[kkl eqLrgd tkxhj ds gksaxs%& ¼v½ vOoyu gdhdh HkkbZ vkSj gdhdh HkkbZ u gksus dh lwjr esa bYykrh HkkbZ] ¼c½ vxj gdhdh ;k bYykrh HkkbZ Hkh u gks rks vOoyu gdhdh HkkbZ dk yMdk ¼[okg og flyflys eqruTtys esa fdruk gh cbZn gks½s] vxj ;g Hkh u gks rks bYykrh HkkbZ dk yM+dk ([okg og flyflys eqruTtys esa fdruk gh cbZn gks), uksV %& utnhdrj ntsZokyk cbZnrj ntsZokys dks esg:e djsxk- ¼t½ vxj bYykrh HkkbZ dk yM+dk u gks ¼[okg og flyflys eqruTtyk esa fdruk gh cbZn gks½ rks eqroQ~Qh tkxhjnkj dk gdhdh ppk] vkSj gdhdh ppk u gksus dh lwjr esa eqroQ~Qh tkxhjnkj dk bYykrh ppk- ¼n½ vxj bYykrh ppk u gks rks eqroQh tkxhjnkj dk gdhdh ppktkn HkkbZ vkSj gdhdh ppktkn HkkbZ u gksus dh lwjr esa gdhdh ppktkn HkkbZ dk yM+dk vkSj blds ckn ml yM+ds dk yM+dk ¼[okg og flyflys eqruTtyk esa fdruk Hkh cbZn gks½ uksV %& utnhdrj ntsZokyk cbZnrj ntsZokys dks esg:e djsxk- ¼g½ vxj gdhdh ppktkn HkkbZ dk yM+dk ;k mlds yM+ds dk yM+dk Hkh u gks rks bYykrh ppktkn HkkbZ] vkSj bYykrh ppktkn HkkbZ u gksus dh lwjr esa bYykrh ppktkn HkkbZ dk yM+dk vkSj mlds ckn ml yM+ds dk yM+dk ¼[okg og flyflys eqruTtyk esa fdruk gh cbZn gks½ uksV%& utnhdrj ntsZokyk cbZnrj ntsZokys dks esg:e djsaxk] xjts fd vgys blyke tkxhjnkjksa dh oQkr dh gkyr esa gd fojklr ml gn rd fd tSlk mij ntZ fd;k x;k gS cikcUnh vgdke ‘kjg eksgEenh bl rjhds ij djkj fn;k tkosxk fd %& 1 eLrwjkr eqLrgkd tku’khuh dh u gksaxh- 2 ckdh enZ oqjlk esa ls vxj mudh rknkn ,d ls T;knk gks rks og ‘k[l tks lcls cM+h ‘kk[k esa lcls cM+k gksxk eqLrgd tku’khuh gksxkA exj ‘krZ ;g gS fd ,slk okfjl lgh mUulc uht uhp dkSe dh xSj dqo vkSjr ls u gks( eLyu %& 1- ^v* ,d tkxhjnkj us ,d vkSjr ^c* ls ‘kknh dh tks ^v* dh fcjknjh esa ls ugha gS ¼xSj dqo gS] exj uhp dkSe ls ugha gS½ rks ^c* dh vkSykn eqLrgd tku’khuh dh gksxh- 2 ^v* ,d tkxhjnkj us ,d vkSjr ^t* ls ‘kknh dh tks ^v* dh fcjknjh ls ugha gS] vkSj xSj dqo esa Hkh uhp dkSe ls gS] bl lwjr esa ^t* dh vkSykn eqLrgd tku’khuh dh u gksxhA** 15. Since the plaintiff alleged adoption in family of Baijnath has not been accepted by Courts below, reliance has been placed on natural succession. Suffice it to say that a person adopted in another family is held notionally dead by this Court in the case of Kaveribai v. Rewabai and others (1966 RN 175). Chain Singh, the predecessor of the plaintiff was in noway related to Madhav Singh, the original Jagirdar of Jagir Mundhara. In this view of the matter, plaintif Bhagwan Singh cannot legally claim any property of Jagirdar Mundhara, which was succeeded by Baijnath. Baijnath having gone in adoption to a third family, his relationship with the family of birth ceased and Bhagwan Singh could not have been legally treated as a member of family of Jagirdar of Mundhara. On account of adoption of Baijnath in third family, natural relatives of Baijnath would have been obvioulsly outside the family of Madhav Singh and Hari Singh. 16. It has been contended on behalf of respondent that defendants No. 1 to 4 also have no right, title or interest in the suit property. Without entering into this controversy, it is mentioned that plaintiff shall have a better title to obtain relief against the defendants. As discussed earlier, Bhagwan Singh, having not proved to be adopted son of Baijnath, has obviously no right, title or interest in the suit property, which is a Jagir property owned by Baijnath. Learned Courts below have, thus, acted illegally in holding the plaintiff to be a preferential nearest heir of the deceased Baijnath. This Court in the case of Kaveribai (supra) has clearly held that after the adoption has taken place, the adopted son or daughter is notionally dead for original family. Adoption, admittedly, severs the relationship of the adopted son with the members of his naturally family. 17. Learned counsel for the respondent drew attention to Ex. D/2, which is an order of mutation passed by MUNTAJIM JAGIRDARAN of Gwalior Government dated 16.7.1935. Needless to say that mutation does not confer a title. Since Bhagwan Singh is not found to be an adopted son of Baijnath and is not further found to be a member of Baijnath’s adopted family, he cannot be treated as a heir of Baijnath in respect of Jagir property. Needless to say that mutation does not confer a title. Since Bhagwan Singh is not found to be an adopted son of Baijnath and is not further found to be a member of Baijnath’s adopted family, he cannot be treated as a heir of Baijnath in respect of Jagir property. Learned Court below have committed illegality in holding that the members of natural family of Baijnath would succeed to the property of adopted family, despite their being no relationship between natural family and adopted family. Substantial question of law No. 2 is answered in favour of appellants. 18. In the result, the appeal deserves to be allowed and is hereby allowed. Judgment and decree of the Courts below are hereby set aside. Suit of the plaintiff stands dismissed with no order as to costs.