1. 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, Sawai Madhopur, on 18th April 1950, on the allegations that he and one Mst. Man-ni purchased a house in Mohalla Har Sahaiji ka Katla at Sawai Madhopur on 31st July 1928, for a consideration of Rs. 190, and thereafter 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 house, as she had none other house to live in. The plaintiff gave permission to Gyarsi and to his son's 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 husband's 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 plaintiff's 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 Bhairon's 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 properly to Gyarsi, and 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. 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 pre-decessor-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 accordingly dismissed.
6. On appeal, the learned Civil Judge was of opinion that the evidence as to adoption of the plaintiff by Gancsha, 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 Gyarsi's Will, though proved, could not affect Manni's property. In any case, it was held that Gyarsi had died 7 or 8 years before the suit, and the defendant Bajji's 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 plaintiff's 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. Learned counsel for the respondent supported the lower Court's decree, and urged that Article 143 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 defendant's possession was at the most for 7 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, the plaintiff's 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 Ganesha 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. Y, therefore, could be proved in the ordinary way like any other document.
It is a registered document, and Madho Lal, 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 Madho Lal, 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 plain-tiff 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 name 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, Ram-chandra, P.W. 2, Bhonria, P.W. 1, and Mola Baksh, P.W. 4. (After discussing evidence of these witnesses, his Lordship concluded). 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 inserted 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 over-looking the above statement of Maula Baksh and has therefore come to wrong conclusion.
12. In the absence of the plaintiff's 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. 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 plaintiff's title. If, however, the defendant and her predecessor's 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. (After discussion of evidence on this point, his Lordship proceeded).
The defendant's evidence in short is to the ef-fect that after the purchase Manni lived in the house and on her death Gyarsi's possession began and on Gyarsi's death, Bajji's 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 son, assuming here that the plaintiff had been adopted by Ganesha. In any case, from the moment of Manna's 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 plaintiff's 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,
15. As far back as 1888, their Lordships of the Privy Council held in Mohima Chunder Mazoomdar v. Moheschundar Neogi, 16 Ind App 23 (PC) (A):
'It is not the law that where plaintiffs are shown to be the rightful owners of the land in suit, it is for the defendants to show that they are entitled to retain possession.'
In Nawab Muhammad Amanulla Khan v. Badan Singh, 16 Ind App 148 (PC) (B), 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 Behari Lal v. Narain Das, AIR 1935 Lah 475 (FB) (C), 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 on 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.
16. Applying the aforesaid principles, the plaintiff's 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.
17. The appeal is, therefore, allowed, the judgment and decree of the lower Court are set aside, and the plaintiff's suit is dismissed with costs throughout.