1. This defendant's appeal arises out of a suit for declaration of title and recovery of possession.
2. Plaintiff-respondent Eswar and Raghunath are two divided brothers. The appellant Gundicha is the son of Haghunath. It is the caste of the plaintiff that in the family partition ho got the properties mentioned in Schedule A and he himself acquired the properties mentioned in Schedules B and C, the suit house, out of his own funds. He wanted to stay with his only surviving daughter Jamhu for the remaining part of his life. His brother Raghunath, however, dissuaded him from doing so and promised that he would keep his son Gimdicha (appellant) and his wife and child with the plaintiff so that they would look after him. Accordingly the plaintiff brought Gundicha and his wife and child to his house in 1952 and executed a dead (Ex. 1) on 6-5-1932, the main condition of the dated being that Gundicha will look after his comforts, but instead of doing that he forcibly dispossessed the plaintiff from out of Schedules D land and C, the suit house. The plaintiff has filed the present suit for recovery of the said properties and for mesne profits.
3. The defendant claimed that he was adopted by Iswar sometime in March, 1945. On 6-3-1952 Iswar executed a deed of adoption wherein he acknowledged that the appellant was previously adopted by him. He stayed in the house of the plaintiff as his adopted son since 1945. Though there was no formal partition between him and the plaintiff, the latter gave him the Schedule D properties which represent approximately one half of the landed properties. The plaintiff under the ill-advice of his son-in-law now disowns the adoption and has brought the suit.
4. The trial Court found that the adoption in fact took place in 1945, but he held the adoption to be invalid as the defendant was a married man at the time of adoption in 1945, but he held that the plaintiff by his conduct was estopped from challenging the validity of the adoption. He rejected the claim of the plaintiff to recover possession of Schedule D lands saying that the plaintiff can recover the same by a suit for partition. With respect to Schedule C he held that the plaintiff is entitled to joint possession of the same and thus he decreed the suit in part.
5. Against the aforesaid decision of the trial Court, the plaintiff filed an appeal. The defendant also filed a cross-objection challenging the finding of the learned Subordinate Judge that the defendant was already married at the time of adoption and as such the adoption was invalid.
6. The appellate Court agreed with the finding of the trial Court that on the date of the alleged adoption in March, 1945, the defendant was already married and as such the adoption was invalid. He thus rejected the cross-objection of the defendant. He held that the parties being close relations, they were fully conversant with the fact that the defendant was married at the time of adoption and thus, the rule of estoppel cannot be made applicable against the plaintiff, so as to disown the adoption. He accordingly allowed the appeal and decreed the plaintiff's suit in full and directed recovery of possession of the house mentioned in Schedule C and the landed properties mentioned in Schedule D. ft is against this judgment of the appellate Court the present appeal has been filed by the defendant.
7. Both the Courts have found that the defendant was already married at the lime of adoption in 1945. It is well-settled that a married person cannot be validly adopted: see Chandreshwar v. Bisheshwar, AIR 1937 Pat 01. The claim of the defendant to be the adopted son of the plaintiff' must therefore bo rejected.
8. The parties come from one family and as such they must have known the real state of affairs, regarding such marriage of the defendant at the time of adoption and there is thus no question of any misrepresentation being made on the point 'or any party acting on such misrepresentation. In a case reported in Kishorilal v. Mt. Chaltibai, AIR 1959 SC 504 their Lordships held that the correct rule of estoppel applicable in the case of an adoption is that it does not confer any status. It only shuts out the mouth of certain persons if they try to deny the adoption, but where both parties are equally conversant with true state of facts, the doctrine has no application. Thus, the recitals regarding acknowledgment of adoption in Ext. 1 or even describing the said document as an adoption deed cannot operate as estoppel against the plaintiff from challenging the adoption.
9. Mr. Dasgupta, learned counsel for the appellant, however, contended that though the defendant may not have the status of a fully qualified adopted son, yet he has acquired title to the suit property by adverse possession. He further urged that the question of adverse possession being a question of law, it cannot be raised for the first time even in the second appeal. It cannot be disputed that a pure question of law can be raised for the first time in second appeal: See M.K. Ranganathan v. Government of Madras, (S) AIR 1955 SC 604. But the question is whether adverse possession is a pure question of law. Of course, when a question of law arises on the facts proved or admitted, It is wholly immaterial whether it was raised in the court below or not But when some investigation of facts are necessary, before a question of law can be applied, the position becomes different. In this connection it is relevant to quote the observations of Lord Watson in a case reported in Connecticut Fire Insurance Co. v. Kavanagb. 1882 AC 473. His Lordship said.
'When a question of law is raised tor the first time in a court of last resort, upon the construction of the document or upon facts either admitted or proved beyond controversy, it is not only competent, but expedient in the interests of justice to entertain the plea. The expediency of adopting that course may be doubted when the plea cannot be disposed of without deciding nice questions of fact in considering which the court of ultimate review is placed in a much lass advantageous position than the Court below.'
This was also the view accepted by the Supreme Court in a case reported in Yeshwant Deorao v. Walchand Ramchand, AIR 1951 SC 16. It cannot be disputed that in the present case the plea of adverse possession was not specifically taken nor was any issue framed before the trial Court and neither party lad evidence on the point as to whether the original possession of the defendant was permissive or not and, as such the courts of fact were not called upon to examine the evidence in the light of this objective. Thus, there are no findings--much less a clear finding--of fact to support the plea of adverse possession as now advanced by the defendant.
10. It has been held in a number of cases that the plea of adverse possession being a mixed question of law and fact, cannot be raised for the first time in second appeal. See Priyanath Mitter v. Anathnath Dev, AIR 1917 Cal 817. Their Lordships held that the question of adverse possession is a mixed question of taw and Fact and cannot be allowed to be raised for the first time in second appeal. In a case reported in Peare Lal v. Nathi Singh, AIR 1934 All 692 the same view was also taken. In a Division Bench of this Court reported in Janardan v. Nailkantha, AIR 1952 Orissa 31 their Lordships held whether a person is excluded from the enjoyment of his joint family property and if so, whether he had knowledge of such exclusion are mixed questions of law and fact and if the point has not been raised before the trial court and if no evidence has been let in on that point, it cannot be raised in second appeal.
En a Full Bench decision of the Punjab High Court reported in Ganda Singh v. Ramhari Singh, AIR 1959 Punj 147 (FB) it was held on the facts of that case that the plea of adverse possession not having been specifically raised in the pleadings or in the issues, it could not be raised in appeal on the evidence already on record. The Patna High Court also took the same view in a case reported in Badri Pandey v. Gulbimodi, AIR 1962 Pat 218 where it was held that as the plea of adverse possession was not raised in the courts below, it was not allowed to be agitated for the first time in second appeal. In a case reported in Lachhmi Sewak v. Ram Rup, AIR 1944 PC 24 their Lordships held that in the absence of any issue in cross-examination, any enquiry upon the point and without giving the plaintiff an opportunity to meet the allegations of adverse possession, the question is only one of fact. In a case reported in Sumesun-daram Chetty v. Vedivelu Pillai, ILR 31 Mad 531 their Lordships refused to give relief on the ground of adverse possession as the point was not raised in the plaint or raised as an issue.
Their Lordships held that a plaintiff who comes into Court alleging title, without more, cannot be allowed to succeed on the basis of title by adverse possession. We have already deen that the defendant did not raise the plea of adverse possession in his pleadings, nor did he lead any evidence on the point and as such no finding was given on the point by any of the courts below. The plaintiff, therefore did not get any opportunity to lead tny evidence to show that the defendant's possession was merely permissive.
11. Mr. Mohapatra, learned counsel for the respondent, contended that it it not open to the appellant now at this stage to urge a new case which was not pleaded by him at any stage and relied upon a case reported in Kedarnath Motani v. Prahlad Rai, AIR 1960 SG 213. In that case a point was urged that a new tenancy was created in favour of the respondent though such a point was not pleaded and there was no material for a finding in support of such a plea. Their Lordships, held that it is not open to a Court in appeal to consider a case not pleaded by a party and to give judgment on that basis. Reliance was also placed in a case reported in Gopilal v. Mst. Sree Chundraobee Buhoojee, Ind App Sup Vol. 131 (PC) where their Lordships declined to allow a new case to be raised which was entirely different from the one which had been previously insisted upon. In view of this position of law, the appellant cannot be permitted to raise the question of adverse possession for the first time in this Court.
12. Mr. Dasgupta, however, relied upon a decision reported in Basudeva Padhi v. Maguni Deven Bakshi, 28 Ind App 81 (PC) and contended that there is no legal bar even to the acquisition of title of a joint estate by adverse possession. In that case, their Lordships held that possession by joint family may, by lapse of time, become adverse to a separate estate. This, however, is a case of converse nature, though it may be helpful so far as the legal principles are concerned, and this principle was followed and applied to a case of adoption as will be found from the case reported in Babaji Daso v. Jiwaji Yeshwant, AIR 1930 Bom 333. In that case, even after the person was given away in adoption he was treated as a member of the joint family of his birth and openly exercised his rights appurtenant to such a position for 12 years. It was held that the man though adopted away, had acquired title by adverse possession in the natural family.
It is true that following the principle laid down in the aforesaid two decisions, we could have held that the defendant prescribed for the right of a co-sharer by virtue of his being brought up by the plaintiff In his family and treated as an adopted son for more than the prescribed period of 12 years. In that case he would be entitled to half share of the ancestral property of the plaintiff. But as seen above, there was no pleading, no evidence nor was any issue raised on the point of acquisition of tide by prescription by the defendant. Given the opportunity, the plaintiff might as well have led evidence to show that the defendant's possession even as a cosharer was merely permissive as has been held In the Supreme Court case reported in G. T. M. Kothuruswami v. Setra Veeravya, AIR 1959 SC 577.
13. It cannot be disputed that on the pleadings, evidence and findings of the courts below in the present case, a case of adverse possession cannot be sustained. The defendant cannot be permitted to raise such a plea at so belated a stage in this appeal.
In the result, therefore, the decree of the appellate Court is upheld, and the appeal is dismissed but under the circumstances of the case each party is to bear his own costs of this Court.
14. I agree.