JUDGMENT 1. - This appeal is directed against the judgment and decree dated 6.10.2008 passed by the Additional District Judge, Sirohi, whereby the appeal filed by the respondents-plaintiffs was allowed and the cross-objections filed by the appellants-defendants were dismissed, resulting in reversal of the judgment and decree dated 26.10.2007 passed by the Civil Judge (Jr. Div.), Abu Road. 2. The facts in brief may be noticed thus the plaintiffs Ashok Kumar and Ravi Kumar sons of Harish Chandra filed a suit for possession and recovery of mesne profit against the defendants with the averments that a house situated at Ambaji Road, Mill Kothi Road at Abu Road is of plaintiffs and defendant No. 9 - Harish Chandra, their father's ownership, the property was ancestral regarding which patta was issued in the name of Maujiram Bhoormal by the erstwhile Sirohi State on 30.7.1903; Maujiram and Bhoormal were members of the Joint Family; Bhoormal had two sons namely Banshi Lal and Matadeen, after whose death the joint property was orally partitioned on 24.8.1978, wherein the suit property came to the share of the plaintiffs and defendant No. 9 and they became owners; a part of the suit property is in possession of the plaintiffs. It was claimed that defendants' father Vishambhar Dayal was let-out the the part of the disputed property in Samwat 2004; he paid rent till Samwat 2012 and himself made relevant entries in the books of shop belonging to Maujiram Bhoormal. Whereafter, the salary of Vishambhar Dayal was increased and it was decided that till such time Vishambhar Dayal would do the work of 'MUNEEM'; rent would not be recovered from him for residing in part of the suit property; Vishambhar Dayal died in Samwat 2029, when Seduram and defendant No. 9 -Harish Chandra, two senior members of the family of Maujiram and Bhoormal requested the defendants to vacate the suit premises when defendants No. 2 to 8 agreed to pay mesne profit for the use of residence after Deepawali. However, when possession was not handed over, then on 22.1.1975 on the shop of Banshi Lal, Seduram on behalf of the defendants No. 2 to 8, defendant No. 2 Kailash Narayan alongwith his brother-in-law Indra Prasad Jain came and it was decided amongst Seduram, Nawal Kishore, Omprakash and defendant No. 9 that defendants would temporarily use the suit property as tenants on payment of agreed rent and defendant No. 2 executed an agreement. Whereafter, when the suit property was not vacated, then defendants No. 2 to 8 were issued notices by the plaintiffs' Advocate on 19.1.1978 and they were called upon to pay mesne profit at Rs. 75/- per month and handover peaceful possession of the suit property. The notice was replied on 8.3.1978 and it was claimed that defendants No. 2 to 8 were owners of the suit property and therefore, the plaintiffs were entitled for possession of the suit property alongwith mesne profit to the tune of Rs. 3,600/-. 3. A written statement was filed by the defendants No. 2 to 8, it was claimed that the plaintiffs and defendant No. 9 were not owners of the suit property; defendant No. 9 has filed suit for eviction, which was pending and therefore, the present suit was not maintainable. It was claimed that Vishambhar Dayal was son of Pyari Bai; working of Vishambhar Dayal as 'MUNEEM' on the shop of Maujiram Bhoormal was admitted and rest of the averments were denied for want of knowledge; it was denied that Vishambhar Dayal took the suit premises on rent in Samwat 2004; it was claimed that they were in possession of the suit property since 1945 and their possession was adverse, open, peaceful and continue, which was never challenged by the plaintiffs and defendant No. 9; in the appeal filed by Seduram regarding house tax on 21.3.1980, the defendants were not shown as tenants and the fact of partition was not mentioned; the defendants were heirs of Maujiram Bhoormal and all the members of the family of Maujiram Bhoormal were necessary parties in absence whereof the suit was not maintainable. 4. A replication was filed by the plaintiffs and it was stated that Ghanshyam Das S/o Bhoormal went in adoption to cousin brother of Bhoormal-Mohan Lal and therefore, Ghanshyam Das and his heirs have no right to claim an interest in the property owned by Maujiram Bhoormal. 5. 4. A replication was filed by the plaintiffs and it was stated that Ghanshyam Das S/o Bhoormal went in adoption to cousin brother of Bhoormal-Mohan Lal and therefore, Ghanshyam Das and his heirs have no right to claim an interest in the property owned by Maujiram Bhoormal. 5. The trial court framed 16 issues. On behalf of the plaintiffs, two witnesses were examined and 58 documents were exhibited. On behalf of the defendants, two witnesses were examined and 9 documents were exhibited. 6. After hearing the parties, the trial court came to the conclusion that it was not proved that on 24.8.1978 there was any oral partition and the suit property came to the share of Harish Chandra and it was also not proved that the suit property was owned by the plaintiffs and defendant No. 9; though the suit filed by the defendant No. 9 was withdrawn with liberty to file fresh suit, the present suit was not maintainable; the suit property was let-out to Vishambhar Dayal in Samwat 2004. The plaintiffs failed to prove that the suit property was let-out to Vishambhar Dayal qua his working as 'MUNEEM' and therefore, it cannot be said that after his death, the defendants No. 2 to 8 have no right to remain in the suit property. The execution of document dated 22.1.1975 (Ex.-54) was suspicious and could not be relied on and therefore, it cannot be said that the defendants agreed to pay rent, the plaintiffs were not entitled to payment of mesne profit, the court fees paid was sufficient. Pyari Bai was not a member of Maujiram Bhoormal joint family and therefore, the defendants No. 2 to 8 cannot claim to the heirs of the joint family. However, the members of Maujiram Bhoormal and Matadeen Bhoormal joint family were necessary party to the suit. The defendants were not in adverse possession and the suit was not barred by limitation, the defendants were not entitled to special costs and based on its finding on various issues dismissed the suit filed by the plaintiffs. 7. Feeling aggrieved, the plaintiffs filed appeal and the defendants No. 2 to 8 filed cross-objections under Order 41, Rule 22 CPC. The defendants were not in adverse possession and the suit was not barred by limitation, the defendants were not entitled to special costs and based on its finding on various issues dismissed the suit filed by the plaintiffs. 7. Feeling aggrieved, the plaintiffs filed appeal and the defendants No. 2 to 8 filed cross-objections under Order 41, Rule 22 CPC. By the impugned judgment and decree dated 6.10.2008, the learned Appellate Court came to the conclusion that the trial court fell in error in coming to the conclusion that the memorandum of partition Ex.-2 was not admissible in evidence and from the said document and oral evidence, it was proved that the disputed property came to the share of the plaintiffs and their father and consequently, reversed the finding on issues No. 1 & 3; the cause of action of the suit filed by the defendant No. 9 and the present suit were different and therefore, the present suit filed by the plaintiffs was maintainable and reversed the finding on issue No. 2, upheld the finding on issue No. 4 that the suit property was let-out to Vishambhar Dayal in Samwat 2004, Vishambhar Dayal was working as 'MUNEEM' with the firm Maujiram Bhoormal and therefore, he was permitted to reside in the suit property and after his death on 8.8.1972, the defendants had no right to stay in the suit property and reversed the finding on issues No. 6 & 7 as well. 8. The trial court also came to the conclusion that Ex.-54, the agreement executed by Kailash Narayan was duly proved and therefore, reversed the finding on issue No. 9 as well. The issues relating to grant of mesne profit were also decided in favour of the plaintiffs by reversing the finding of the trial court. Whereafter, the cross-objection of the appellants qua adverse possession and limitation were also rejected. 9. The appellate court also came to the conclusion that as the property had been partitioned on 24.8.1978, the rest of the members of Maujiram Bhoormal and Matadeen Bhoormal were not necessary parties. Ultimately, the first appellate court allowed the appeal, dismissed the cross-objection and decreed the suit filed by the plaintiffs. 10. 9. The appellate court also came to the conclusion that as the property had been partitioned on 24.8.1978, the rest of the members of Maujiram Bhoormal and Matadeen Bhoormal were not necessary parties. Ultimately, the first appellate court allowed the appeal, dismissed the cross-objection and decreed the suit filed by the plaintiffs. 10. It is submitted by learned counsel for the appellants that the appellate court fell in error in recognising the partition Ex.-2 and the agreement Ex.-54 said to have been executed by Kailash Narayan admitting the status of the defendants as tenants and fell in error in reversing the findings recorded by the trial court on the said issues. It was further submitted that the suit filed by the plaintiffs were ex-facie barred by limitation and the appellants had become owners by the adverse possession and therefore, the suit filed by the plaintiffs was liable to be dismissed. 11. Learned counsel for the respondents supported the impugned judgment and submitted that the trial court fell in error in not recognising document Ex.-2 and Ex.-54 which resulted in its coming to a wrong conclusion in the suit and the first appellate court justifiably came to a correct conclusion. It was further submitted that the findings on the plea of adverse possession and consequential issue regarding limitation are concurrent findings as even the trial court has concluded that the defendants cannot claim adverse possession and the suit was within limitation, the appeal does not involve any substantial question of law and therefore, the same deserves to be dismissed. 12. I have considered the rival submissions, perused the judgments of both the courts below and have also gone through the record of both the courts below. 13. So far as the finding of the appellate court on the document Ex.-2 is concerned, it was the specific case of the parties that the property was orally partitioned on 24.8.1978 and the document Ex.-2 a memorandum was executed on 5.9.1978, during the course of statement of Ashok Kumar when objection was raised regarding its admissibility, the trial court overruled the same and indicated that at the time of final arguments, in the interest of justice, order would be passed, no new facts came on record regarding the said document and therefore, the trial court was not justified in discarding the document Ex.-2. Besides the above, from the oral evidence led by the parties, it was proved on record that the properties of Maujiram Bhoormal were orally partitioned on 24.8.1978 and the suit property fell in the share of the plaintiffs and defendant No. 9 as admittedly except for the part, which was in possession of the defendants, rest of the house is in possession of the plaintiffs and defendant No. 9. The strong reliance placed by the defendants that against the assessment of house tax of the suit property, the appeal was filed by Seduram in the year 1980 and therefore, the said singular fact was sufficient to came to the conclusion that the property was not partitioned. The said fact cannot be a determining fact regarding the ownership and/or partition of the suit property as it has came on record that the notice regarding the suit property was issued to Seduram and therefore, it was Seduram alone, who could have filed an appeal. The entry for house tax purposes with the local authorities by itself does not confer the title and/or its absence cannot by itself take way the fact of partition. As such, it cannot be said that there is any perversity in the finding recorded by the first appellate court. 14. So far as document Ex.-54 is concerned, the same was duly proved by the plaintiffs to have been executed by Kailash Narayan - defendant No. 1 and it was further the case of the plaintiffs that the said document was executed in the presence of Indra Prasad, brother-in-law ('JIJA') of the defendants. The written statement was signed by Kailash Narayan wherein the execution of the document was denied. However, the defendants failed to produce Kailash Narayan and/or their brother-in-law Indra Prasad in evidence in support of their contention regarding non-execution of the said document and therefore, the first appellate court was justified in drawing adverse inference against the defendants on the said issue. Besides the above fact, the defendants even failed to cross-examine Omprakash on the said aspect. However, the defendants failed to produce Kailash Narayan and/or their brother-in-law Indra Prasad in evidence in support of their contention regarding non-execution of the said document and therefore, the first appellate court was justified in drawing adverse inference against the defendants on the said issue. Besides the above fact, the defendants even failed to cross-examine Omprakash on the said aspect. The finding of the trial court based on drawing adverse inference against the plaintiffs for not producing Seduram apparently had no basis as qua the written document once the initial burden was discharged and the plea taken by the defendants was that Kailash Narayan had no right to execute the document, the burden shifted on the defendants to prove either the non-execution and/or the fact that Kailash Narayan had no right/authority to execute the said document, regarding which they failed. In view thereof qua the finding on Ex.-54 also it cannot be said that the first appellate court was not justified in reversing the finding of the trial court. 15. So far as the previous suit filed by the defendant No. 9 seeking eviction of the defendants from the suit premises and on its withdrawal operating as res judicata is concerned, the cause of action of both the suit being wholly different, the first based on the defendants being tenants and the present suit for possession based on title, the previous suit cannot operate as res judicata. Further the suit was withdrawn with liberty to file fresh and therefore also, it cannot be said that the present suit was not maintainable. 16. The trial court and the first appellate court have concurrently found as a fact that Vishambhar Dayal, father of the defendants came in possession of the suit property as tenant while working as 'MUNEEM' with the firm Maujiram Bhoormal and negated the plea of adverse possession raised by the defendants and that the suit was barred by limitation. 17. Learned counsel for the appellant failed to point out any perversity in the said findings recorded by both the courts below. 18. In view of the above discussion, the reversal of the decree dismissing the suit passed by the trial court, by the first appellate court cannot be faulted. 17. Learned counsel for the appellant failed to point out any perversity in the said findings recorded by both the courts below. 18. In view of the above discussion, the reversal of the decree dismissing the suit passed by the trial court, by the first appellate court cannot be faulted. The findings recorded by the first appellate court as noticed above cannot be said to be perverse and no substantial question of law arise for consideration in this appeal.Consequently, there is no substance in this appeal and the same is, therefore, dismissed.Appeal dismissed. *******