P.N. Shinghal, J.
1. The property in respect of which the controvercy in this case has arisen admittedly belonged to Sinja who died some time in Samvat 1950, leaving behind his widow Smt. Amri. Smt. Ram Kanwari (defendant No. 3) is their daughter. There is a dispute whether she was first married to Khata and defendant Mamraj was born of that union and then went in 'nata' to Kheta's brother Kama, after his death, or whether she was married to Hema from the very beginning. But it is not in dispute that Mamraj (defendant No. 1), Magna, Chuna and Hanuman are her four sons. Smt. Bhani (defendant No. 2) is the daughter of Manraj who has no other surviving issue, and plaintiff Rameshwar is the natural son of Magna.
2. Plaintiff Rameshwar raised the suit on November 30, 1955 with the allegation that after the death of his wife and son, Mamraj took him in adoption on phalgun sud 2, S. 2001, executed a document (Ex. 1) to that effect and kept him as his son. He claimed that he lived jointly with Mamraj as his adopted son and helped him in cultivation. According to the planintiff, Binja had no son and so his widow Smt. Amri kept her daughter Ram Kanwari with her and after her death Ram Kanwari became the owner of her property. Mamraj was the 'Karta' of his family but, according to the plaintiff, he colluded with the other defendants in order deprive him of the property, and executed a registered gift deed (Ex. 20) of the property in favour of his daughter Mst. Bhani on October 19, 1956. He told the plaintiff that he did not want to keep him in adoption. The plaintiff therefore felt aggrieved because according to the averment in the plaint, the property was the ancestral property of his grand-mother Ram Kanwari and her husband Hema and could not be gifted. As the gift deed case a could on his right to the property, the plaintiff raised the suit for a declaration that he was adopted son of Mamraj defendant No. 1. He also prayed for the conciliation of the gift deed it was vaid and inoperative against him.
3. Separate written statments were filed by Mamraj and Smt. Ram Kanwari. Mamraj denied the adoption of the plaintiff and pleaded that he had made the gift in favour of his daughter Smt. Bhani because she used to well him and had nothing to do with the plaintiff. No pleaded that as Smt. Bhani (defendant No. 2) was put in possession of the property on the date of the registration of gift-deed and was in possession over since, the suit for a more declaration was not maintainable Further he pleaded that he was the natural son of Kheta and had gone in adoption to his maternal grand-father Binja when he was a child and was therefore the owner in possession of Binja's property. In this connection he stated that after the death of his father Kheta his mother Smt. Ram Kanwari went in 'sata' to Hema and that Magna, Chuna and Hanuman were born thereafter It was therefore pleaded that there were two separate families one of defendant Mamraj and the other of Magna, Chuna and Hanuman. This plea was taken for the purpose of showing that the plaintiff, as the son of Magna, had no claim over the property of Binja because Maraj had been given in adoption by his father Kheta to Binja and became the only owner of the suit property.
4. In her written statement Smt. Ram Kanwari accepted some of the pleas of the plaintiff, including the plea that he was the adopted son of Mamraj. but pleaded that the land was in her possession and that she hed allowed the ''Khatauni' to stand in the name of Mamraj because he was the eldest son and she was not in a position to undertake the cultivation. She supported the plaintiffs' contention that Mamraj had no right to make a gift of the property.
5. It may be stated that, at one stage, a joint written statement was filed by defendants Mamraj and Smt. Bhani before the amendment of the plaint, but it is not necessary to refer to it because the learned Counsel are in agreement that nothing turns on it. It may also be stated that Smt. Ram Kanwari died during the couoe of the trial on April 14, 1959.
6. A number of issues were framed is the trial court and the learned trial Judge held that plaintiff Rameshwar was the adopted son of defendant Mamraj. He however reached the conclusion that Mamraj was the son of Hema and was not taken in adoption by Binja whose property was inherited by his daughter Smt. Ram Kanwari. On these findings the learned Judge should have taken the view that the plaintiff did not acquire any interest in the property of Smt. Ram Kanwari by the adoption, but he went on to hold, under a misconception of the law, that it was ancestral coparcenary property in the hands of Mamraj so that the plaintiff had an interest in it by adoption. On these findings, the learned Judge decreed the suit on July, 11, 1960 declaring that the plaintiff was the adopted son of defendant Mamraj, and cancelled the gift deed (Ex. 20).
7. Defendants Mamraj and Smt. Bhani filed an appeal against the judgment and decree of the trial court. The learned appellate Judge confirmed the finding that the plaintiff was the adopted son of Mamraj, but held that Mamraj, in his turn, was the adopted son of Binja. On this altered finding, the learned Judge had no difficulty in upholding the trial court's finding that the plaintiff had an interest in the suit property by virtue of his adoption, and he therefore maintained the decree of the trial court.
8. Thus, as the defendants have been unsuccessful in both the courts below, they have preferred this second appeal.
9. An objection has been raised by the learned Counsel for the defendants-appellants that the courts below committed a serious error of law in adjudging the claim in the suit because it related to agricultural lands and was exclusively triable by a revenue court. The learned Counsel has urged that he is entitled to raise this objection even in second appeal as it relates to a plea of inherent lack of jurisdiction. According to him Section 207 of the Rajasthan Tenancy Act, 1953, was clearly attracted to the suit, which fell under Section 85(1) or Section 91 of that Act and was therefore triable by a revenue court in according with the classification mentioned in the Third Schedule. The learned Counsel has relied on Sub-section (2) of Section 207 for the purpose of making the submission that the jurisdiction of any other court was expressly barred by statute. He has also tried to make the benefit of the Explanation to the Section and has urged that the question of jurisdiction, in a comes like the present, should be decided on the basis of the real cause of action and not merely on the form of the relief claimed in the plaint. The learned Counsel has thus argued that the plaintiff has, in fact and substance, prayed for a declaration of his joint right of tenancy in respect of the suit lands and the case falls within the purview of Sections 38(1). Alternatively, he has argued that the plaintiff has sued for a declaration of his right conferred by the Rajasthan Tenancy Act and the case is, at any rate, covered by Section 91. For this submission he has placed reliance on Gulla v. Dolia and Ors. 1952 ILN 2 Raj. 355 and Shri Chand and Ors. v. Daulat Ram and Ors. 1952 ILR 3 Raj. He has also argued that the suit would not become triable by a civil court merely because the plaintiff has prayed for a declaration that he is the adopted son of defendant Mamraj for such a declaration can be granted by a revenue court where the suit is otherwise triable by it. For this other submission, the learned Counsel has cited Chimna v. Board and Revenue and Anr. 1955 ILR 6 Raj. 303, and Jagannath and Ors. v. Balwant Singh and Anr. AIR 1920 All. 372. Further the learned Counsel has argued that a suit would not cease to de triable by a revenue court merely because the plaintiff would the relief in such a manner as to bring it within the coupstance of a Civil court, and for this he has made a reference to Mohammed Khalil Khan and Ors. v. Mahbub Ali Mian and Ors. AIR 1969 P.C. 72. The learned Counsel has also invited my attention to the observation in the judgment of the trial court that the plaintiff had himself raised the argument that the disputed property was agricultural land and has argued that as the entire suit property consisted of agricultural lands, the suit was not triable by a Civil Court.
10. It is however an admitted fact that the defendants did not take the plea that the suit was not triable by a civil court, no issue was framed on the question of jurisdiction and the point was not even urged for the consideration of any of the two courts below or in the memorandum of the first appeal. It has been raised for the first time in this court.
11. A perusal of the plaint shows that the plaintiff prayed for a declaration that he was the adopted son of Mamraj. We also pleaded and prayed that as Mamraj had made a gift of the ancestral property to his daughter for the purpose of depriving him of his right, it should be declared void and inoperative against him. It therefore follows that even if it is assumed for the make of argument that the dispute in the suit related exclusively to agricultural lands, the real and actual cause of action was the plaintiff's claim to be the adopted son of Mamraj and to own the property with him in that capacity. Section 33(1) of the Rajasthan Tenancy Act cannot therefore govern this case. So also it cannot be said that the plaintiff sued for a declaration of all or any of his rights conferred by the Tenancy Act within the meaning of Section 91. Sections 88 and 91 have therefore no application to the present suit and Gulla v. Doliya and Ors. 1952 ILN 2 Raj. 355 and Shrichand and Ors. v. Daulat Ram and Ors. 1952 ILR 3 Raj. can be of no benefit to the appellants. The former was a suit for the declaration of tenancy rights in a well and for division of a share in the lands attached to the well. It was therefore rightly held to be a suit triable by a revenue court. In the latter case also, the suit was for a declaration that the plaintiffs were the owners of certain shares in agricultural land, and also for its redemption. It was held that the suit fell to be tried by a revenue court in accordance with the provisions of the Revenue Courts (Procedure and Jurisdiction) Act, 1951. These cases therefore clearly distinguishable. It may be mentioned that it is admitted by the learned Counsel for the appellants that apart from Sections 85 and 91 of the Rajasthan Tenancy Act, the suit can not be said to fall within the purview of any other provision of that Act.
12. It is true that the question of adoption can be decided by a revenue court when it is necessary for the purpose of deciding a suit based on a cause of action for which a suit in a revenue court is the only appropriate remedy. Thus in the case of Chimna v. The Board of Revenue, Rajasthan and Anr. 1955 ILR 6 Raj. 303 the suit was for a right which could be claimed only in a revenue court, while in Jagannath and Ors. v. Balwant Singh and Ors. AIR 1969 P.C. 72 the only dispute was regarding the nature of the tenancy, and adoption was an incidental issue. It cannot therefore avail the learned Counsel for the appellants to argue merely that there are decisions to the effect that a question of adoption can also be validly decided by a revenue court. That may well be so, but it cannot by itself justify the trial of a suit like the present in such a court.
13. There is, however, another important fact which may be said to clinch may possible controversy on the question of jurisdiction. The plaintiff has made-the gift a cause of auction for the suit and has prayed for its cancellation. There is no dispute that such a gift has been made by defendant Hasraj in favour of his daughter defendant Smt. Shani. The gift deed (Ex. 20) shows, ex-facie, that Mamraj made,, a gift of his agricultural lands as well as his residential houses in the abadi of village Kulhadi, and it cannot be disputed that 'land as denned in Section 5(24) of the, Rajasthan Tenancy Act excludes 'Abadi land', so that any dispute regarding 'abadi land' would not fall within the purview of that Act. At any rate, there is nothing; on the record to show that the lands occupied by the houses or enclosures referred to in the gift deed were situated on a 'holding' as defined in Clause (17) of Section 5 of the Rajasthan Tenancy Act. In other words, there is nothing to show that, they stand on agricultural lands within the meaning of the definition mentioned in, Clause (24) and it will not be fair and reasonable to presume that the residential; houses or enclose was included in the impugned gift-deed are agricultural lands so as to require adjudication of any possible dispute regarding their ownership or possess-, ion by a revenue court. For this undertainty regarding the nature of these lands, the defendants are themselves to blame, for they did not take a plea in their written statements that the suit was triable by a revenue court as the entire property which, was the subject matter of the gift was agricultural land, and the matter could not therefore be put to trial.
14. In these facts and circumstances, it will be fair and reasonable to take the view, on a bare perusal of gift-deed Ex. 20, that both agricultural and non-agricultural properties were gifted by Mamraj to his daughter Smt. Shani, and it is not, disputed that a suit relating to such comcosite properties would be triable by a civil; court. It has been held by this Court in Rattu v. Mala 1953 RLW 375 that this is so, and I am in respectful agreement with that view. As has been observed by their Lordships, of the Supreme Court in Dhulabhai etc. v. State of Madhya Pradesh and Anr. AIR 1959 SC 78 the exclusion of jurisdiction of the civil court in not readily to be inferred, and there is, for reasons already stated, all the mere reasons for as not to draw such an inference. It has also to be remembered that in this case the relief claimed by the plaintiff that he may be declared to be the adopted son of defendant Mamraj is not an ancillary matter for the decision of any main relief. It was of the assence of the suit, for the only other relief which the plaintiff asked was based on it and was to follow as a, necessary consequence case he was held to be Mamraj's adopted son. I, have, therefore, no hesitation in rejecting the belated effort on the part of the learned,, counsel for the defendants-appellants to make the submission that they should he., allowed to raise the bar of Section 285 of the Rajasthan Tenancy Act against the, maintain ability of the present suit in the civil Court.
15. It is true that the trial Court made the observation that the plaintiff raised the argument that the disputed property was agricultural land, and it has been argued that he should be tied down to his admission for the purpose of holding that the entire property was agricultural land and the suit was triable by a revenue court. I do not, however, feel inclined to take any such view. A perusal of the entire judgment shows that the so called admission was made when the trial court was considering the question whether it was necessary for the plaintiff to make a prayer for possession of the suit property. This was the subject matter of a separate issue (No. 5). It cannot, therefore, be said that in the context in which the observation was made in the judgment of the trial court, it should be interpretted as an Unequivocal admission that the whole of the suit property was agricultural land so as to make the suit triable by a revenue court. If the defendants thought that the entire property was agricultural land, there was nothing to prevent them from pleading that this was so and raising the question of jusisdiction at the appropriate stage.
16. It has been argued that the finding of the learned Judge of the lower appellate court that defdt. Mamraj was the adopted son of Binja has been vitiated by a serious error of law, for while that court took the view that Mamraj was bound by his admission in the written statement that he was the adopted son of Bijna, the learned Judge did not care to bind the plaintiff to his admission that Bijna had no son at all and that after the death of his widow Smt. Asri his property develved on his daughter Smt. Ram Kanwan. The learned Counsel has taken exception to the following observation in the judgment os the lower appellate Court.
It is definitely alleged by Mamraj defendant in his written statement that he was adopted by Beenja and had gone to the latter's family.... He there remains no doubt that Mamraj was the son of Beenja and now he cannot turn round and say that he was not the son of Beenja and inherited Beenja's property only as his maternal grand-son.
17. According to Mr. Rastogi, the learned Judge, of the lower appellate court lost sight of the statement in the plaint that Binja had no son; and it has been argued that a serious error of law has been committed in tring only one of the parties to his admission while ignoring the admission of the other party. Developing his argument, the learned Counsel has made the submission that when, according to the plaint, Binja died without a male heir and after the death of his widow Smt. Asri their daughter Smt. Ram Kanwari became the owner of the property that property ceased to be the property of the joint Hindu family and did not have the characteristics of an ancestral coparcenary property which could be inherited by the coparcener. In other words, it has been argued that any property inherited by Mamraj from his maternal grand-mother and mother could not be said to be ancestral property in which his adopted son plaintiff Rameshwar could acquire any interest by adoption so as to as sail the gift made by Mamraj in favour of his daughter Smt. Bhani in support of this argument, the learned Counsel has placed reliance on Mohd. Hussain Khan and Ors. v. Babu Kishva Nandan Sahai (8).
18. I have gone through the pleadings of the parties and it cannot be denied that there is force in this argument of Mr. Rastogi. The plaintiff had no doubt taken the plea in the plaint that after the death of Binja and Smt. Amrj; Smt. Ram Kanwari became the owner of Smt. Amri's property. Then it was also clearly stated that Binja had no son and that was why Ram Kanwari became the owner of his property. It is also correct that the defendant clearly pleaded in the written statement that Mamraj was the son of Kheta and was taken in adoption by Binja. The learned Judge of the lower appellate court was, therefore, clearly in error in over-looking the admission in the plaint while binding the defendant to what was stated in the written statement. The impugned finding has, therefore, been vitiated by a substantial error of law so that it has become necessary for me to re-examine it on the merits in second appeal.
19. Before doing so, it may be stated, however, that both parties are anxious to get out of the admissions in their respective pleadings because while the plaintiff now realises that he cannot lay claim to the suit property if it is held to be the property of Smt. Amri and thereafter of Smt. Ram Kanwari or if it is held to have devolved on Mamraj through his maternal grandfather Binja, defendant Mamraj through his maternal grandfather Binja, defendant Mamraj also now realises that if he is held to be the adopted son of Binja, the plaintiff, as his adopted son, will be entitled to claim that the gift-deed in favour of Smt. Bhani should be cancelled because of his interest in the ancestral conparcenary property by adoption. This is why both the parties are anxious to get rid of the admission unwillingly made by them in their pleadings. But they are clearly unjustified in claiming that this should be allowed to be done at the cost of the other.
20. I have referred already to the admissions of the parties in question. It is conceded by their learned Counsel that they do not, speaking strictly, fall within the dectrime of estoppel because neither party could be said to have intentionally caused or permitted the other to believe a thing to be true and to act upon such belief within the meaning of section 115 of the Evidence Act. Each party has however, argued that the other should be bound by the admission in the pleading, but not vice versa.
21. It appears to me that whether the averments in question are taken as estoppels or as admissions, they should apply mutually or not at all. It is a well established principle of law that an estoppel against estoppel sets the matter at large and I may refer here to the following observation in paragraph 394 of Halsbury's Laws of England, third edition, volume XX 15, at page 211:
It has been said by Lord Coke, and the statement has been repeated in text-books of authority, that estopple against estopple doth put the matter at large.
As will appear from Civa Ram Hanaji v. Jevana Rai and Ors. (9), the principle has been applied in this country also. In fact it is a fair and workable principle and there is no reason why it should not apply equally in the case of admissions, so that an admission against admission should also set the matter at large. I am fortified in this view by the decision in dyarsilal and Anr. v. Suraj Karan and Anr. (10) cited by Mr. Rastogi. There is all the more reason why this should be so in the present case for (as) has been stated, both the parties took their respective pleas in question out of ignorance of the correct legal position regarding the Hindu law of inheritance and it will not be just and fair to tie them down when they are both equally to blame, and the case can be decided on the basis of the evidence on record. I shall, therefore, ignore the admissions in question in the pleadings of the parties so far as they bear on the question of Mamraj's adoption to Binja and decide it afresh as if the whole of that matter was at large.
22. Issue No. 4 deals with question of Mamraj's adoption to Binja and there is both documentary and parol evidence hearing on it.
23. The most important document is Ex. A.I. dated Chaitra Sud 3-8-1959. It has been stated by Mamraj (D.W. 8) himself and his witness Hetram D.W. 14 that the document was executed on the 12th day of Binja's death. Hetram has further stated that he was present at the time of the execution of the document and that it was present at the time of the execution of the document and that it was signed by Binja's brother Hamuta. There is however, a great deal of controversy reg : the proof, evidentiary value, contents and purpose of this document and I have therefore, examined it carefully. A free translation of the document reads as follows:
The wife of Binja Mudara has got it written that my husband had taken my daughter's son Mamrajia's in adoption during his (husbant's) life-time...therefore Mamrajia is the owner of my property and house. He one can raise any objection. I have willingly got this document written. I shall not raise any sort of objection. Sd/--Hanuta Modasra, signed by the pen of Bherubux Dhabhai.
Attested by Pure of Kuldiya and Sadu Asa Dami, dated Chaitra sud 3, 1959.
24. There can be no room for any controversy regarding the proof and the genuineness of this document. It was produced by defendant Mamraj himself in proof of his case under order 13 Rule 1 C.P.C. as he placed reliance on it. Besides, he proved it by his own statement that although Binja took him in adoption during his life time, document Ex. A. I. evidencing the adoption was executed on the 12th day of his death by his widow Smt. Amri. He has further stated that it is a genuine document and that he obtained it from so lese a person than Smt. Amri. Then there is the statement of Het Ram D.W. 14 also, to a part of which I have made a reference already. He was 50 years old at the time of his statement and has stated that in his presence Binja's widow Smt. Amri got document Ex. A. I. written by his father Bheru Bux and that Binja's brother Hanuta signed it. There is no reason to disbelieve this witness and I have no doubt that Ex. A.I. 1 is a genuine document.
25. What then is its evidentiary value and purpose. To my mind it establishes the important fact that, by their conduct, both Smt. Amri and her husband's brother Hanuta left no room for doubt that Mamraj was the adopted son of Binja. Evidence to this effect is admissible under Section 50 of the Evidence Act, for under that Section when the court has to form an opinion as to the relationship of one person to the another, the opinion, expressed by conduct, as to the existence of such relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact. There can be no doubt that both Smt. Amri and Hanuta, being the wife and brother of Binja, had special means of knowledge on the question whether Binja took Mamraj in adoption. The conduct of both Smt. Amri and Hanuta as evidenced by Ex. A. 1 has expressed their opinion, in unmistakble terms, that Mamraj was the adopted son of Binja and it is therefore, an important piece of evidence on the point in the dispute. I may in this connection make a reference to Delgebinda paricha v. Ninai Charan Misra and Ors.
26. Besides, Ex. A. 1 is also admissible under Section 32(5) of the Evidence Act because it has been established beyond doubt that both Smt. Amri and Hanuta whose statements ate contained in Ex. A. 1 are dead, and the statement relates to the existence of relationship by adoption about which they had special means of knowledge for the reason just mentioned, and the statements were made before any dispute was raised regarding the adoption. Delgobinda paricha's case (11).
27. It has, therefore, been established beyond doubt that Ex. A. 1 is an important piece of evidence in the case and goes a long way in proving that Mamraj was taken in adoption by Binja during his life time.
28. However, an argument has been raised on the opening words of the document that there was another document in existence which was separately executed by Smt. Amri, widow of Binja, and that Ex. A. 1 was no mere then a certificate given by its signaturies that Mamraj was the adopted son of Binja, but a reading of the entire document leaves no room fur doubt that while the opening words are not quite appropriate, the document was got executed at the instance of inja's widow and by it she reiterated the fact of Mamraj's adoption by her husband in his life time and further made it clear that he was the owner of her property and house and that she would not raise any objection in that respect. The use of the words ' I have willingly got this document written and I shall not raise any sort of objection, are significant and leave no room for doubt that Ex. A. 1 was the only document which was executed at the instance of Smt. Amri by her husband's brother Hanuta, and this is quite sufficient to prove that Mamraj was taken in adoption by Binja in his life time.
29. It his of course been argued by Mr. Rastogi that satisfactory proof of adoption is necessary and he has placed reliance on Diwakar Rai v. Madanlal Rao and Ors. (12), padmalav Ashariya and Anr. v. (Srinatiya) Fakira Bebya and Ors. (13). Kishorelal v. Mst. Chalaibai (14), and A. Raghavanua and Anr. v. A. Chanchasea and Anr. (15) to support his argument. This is no because courts have been reluctant to transfer the rights of wives and daughers etc. to strangers, or more rempts relations, unless adoption is proved by evidence from all suspicion, fraud or doubt. In the instant case, however, there can be no doubt regarding the correctness of the finding that Mamraj was taken in adoption by Binja in his life time, because, as has been stated, it has been proved by Ex. A. 1 and the statement of He tram D.W. 14. It has to be remembered that the adoption is said to have taken place in Smt. 1935 and it was required to be proved after some 53 years. All the same, the evidence furnished by document Ex. A. 1 and Hetram D.W. 14 requirements of proof of Mamraj s adoption by Binja and it is futile to contend that the evidence is not satisfactory or that it leaves any room for doubt. Besides, as I shall point out in a while the statement of Mamraj himself undoubtedly lease to this conclusion. I may however, refer here to another argument of Mr. Rastogi based on the decision in case Lakshman Singh Kothari v. Smt. Rup Kanwar (16) that to secure the publicity to a Hindu adoption it is essential to have for formal, cermony. The learned Counsel has argued that Ex. A. 1 was no evidence that there was any such ceremony of giving and taking Mamraj in adoption. But this argument is also futile because Hetram D.W. 14 has stated that Mamraj was five years old and was given in adoption by his natural father and was taken in adoption by Binja.
30. I have also gone through the entire paral evidence of the parties on the question of Mamraj's adoption by Binja. The appellant's learned Counsel has placed great reliance on the statement of Smt. Ram Kanwari (P.W. 1) who was produced as a witness on behalf of the plaintiff. She no doubt stated that Mamraj was her son by Hema, that Hema's brother Khata died unmarried and that her father Binja did not take Mamraj in adoption because he (Binja) died before the birth of Mamraj. It has been argued that there is no reason to disbelieve this statement of a knowledge person like Smt. Ram Kanwari who had no reason to side one party or the other as both were her own kith and kin. The matter is, however, not so simple. To my mind Smt. Ram Kanwari has sided the plaintiff and deposed against Mamraj's adoption by Binja's property as his daughter. This was the reason why she went to the extent of pleading in her written statement that the lands were in her possession even though they were recorded in the same of Mamraj. Ram Kanwari is therefore an interested witness and I am not inclined to place reliance on her statement when it has been disproved by important documentry evidence of the nature Ex. A. 1. Kushlaram P.V. 2 has not stated any thing regarding the adoption of Mamraj. Lachu P.W. 3 and Magna P.W. 5 have stated that Mamraj was not taken in adoption by Binja and that Binja took his own daughter in adoption. The witnesses were born after the adoption and their statements are of no consequence. Pehapsingh P.W. 4 and Hariya P.W. 6 have : not stated anything regarding the adoption Mamraj. Ramlal P.W. 7 has stated; that Mamraj was not taken in adoption by Binja, but he could not have said so as he J was born long after the adoption. The remaining witness is plaintiff Rameshwer P.W. Sand as he was a young boy he has naturally not said anything about the; adoption of Mamraj by Binja.
31. I shall now deal with the defence evidence. Hetram D.W. 1 has not: stated that he was present at the time of the adoption of Mamrai by Binja. He has however, stated that he saw Mamraj living as the adopted son of Binja and his wife. Heera D.W. 2 has admitted that he was not present at the time of the adoption but he has also stated that Mamraj lived with Binja and inherited his property. The statement of Goma P.W. 3 is based on hearsay, and much the same is the position regarding Badlu D.W. 4 and Balu D.W. 5 Kishna D.W. 6 is the barber of defendant Mamraj and he has stated that Mamraj performed the coremony Connected with the death of Smt. Amri as the adopt-d son of Binja. The statement of Mahadev D.W. 7 is based on hearsay and is of no importance. Mamraj D.W. 8 is the plaintiff and he has stated about his adoption by Binja and the genuineness of document Ex. A. 1. He has also stated the facts which go to show that he lived as Binja's adopted son and inherited his property. As the statement finds substantial corroboration from document Ex. A. 1 and the statement of Hetram D.W. 14, I have no hesitation in holding that it is correct so far as the adoption of Mamraj by Binja is concerned. Bheru D.W. 10 and Chandra D.W. 11 have not stated anything regarding the adoption of Mamraj. Jodhraj D.W. 12 is the grand-son of Binja's brother Hanuta who was one of the signatories to document Ex. A. 1 as stated above. He has identified the signature of Hanuta at portion A to B, but as the witness was born long after the death of Hanuta I have not considered it safe to accept his statement in proof of document Ex. A. 1 which, for reasons mentioned above, has been proved to be genuine by the other evidence on the record.
32. Meghraj D.W. 13 has also not stated any thing regarding the adoption of Mamraj. Hetram D.W. 14 is an important witness. I have already referred to the value of his testimony and it is not necessary to recapitulate it. The remaining witness is Mamraj's daughter Smt. Bhani D.W. 15. She has stated that her father was adopted by Binja.
33. It will thus appear that the evidence on the record establishes it beyond doubt that Mamraj is the adopted son of Binja, and I hold accordingly.
34. So when it is not in dispute that the suit property belonged to Binja, and when it has been proved that Mamraj was his adopted son and he (Mamraj) in turn took plaintiff Rameshwar in adoption on Phagun sud 2, S. 2001, (Feb, 14, 1945), it must be held that Mamraj could not make a gift of the property to his daughter Smt. Bhani on Oct, 19, 1956. The gift deed Ex. 20 is, therefore, void and inoperative as against the interests of plaintiff Rameshwar and the court below was justified in ordering its cancellation.
35. A technical objection has however been raised by Mr. Rastogi that the plaintiff must fail in his claim in the suit because he was in a position to ask for the consequential relief of possession over the suit lands within the meaning of the proviso to Section 42 of the Specific Relief Act, but failed to do so. This was in fact the subject matter of issue No. (5). The two courts below decided the issue in favour of the plaintiff under the mistaken impression that the entire suit property was agricultural land so that the relief of possession could only be granted by a revenue court and was not claimable in a civil court. As I have taken the view that this was not so, the question is whether the suit of the plaintiff should be dismissed because of his failure to ask for possession.
36. A perusal of the record shows that issue No. 5 arose out of paragraph 6 of the additional pleas in the written statement of defendant Mamraj where he pleaded that Smt. Bhani defendant No. 2 was in possession since the date of the registration of the gift deed and a suit for more declaration was not maintainable. The question, therefore, is whether it could be said on the evidence on record that this was so. In this connection Mr. Rastogi has invited my attention to the statements of both Mamraj and Smt. Bhani. Mamraj D.W. 3 has stated that his daughter Smt. Bhani was in possession of the suit property, but he had to admit in cross-examination that, as a matter of fact Smt. Dhani was living with him. This admission is significant because Mamraj has not stated that it was he who lived with her after the gift. Besides, Mamraj had to admit that he was jointly cultivating the lands with Smt. Bhani and that he did not give her anything on account of the cultivation but made the payment to the State. This statement of Mamraj disproves any claim in the written statement about the exclusive possession of Smt. Bhani and it also disproves her statement in the trial court to that effect. It may also be mentioned that Mamraj has himself produced four sale-deeds two of which are dated August 8, 1963 and the other two are of Oct, 8, 1963 and July 28, 1964 respectively, and it is not disputed that under them he sold most of the suit property to others, accompanied by delivery of possession. This also shows that according to Mamraj's own admission and conduct, there is no truth in the contention that Smt. Bhani was in possession of the suit property and the plea taken by the defendant; to that effect was incorrect. It must accordingly be held that the defendants were not entitled to succeed on issue No. (5), because there was nothing to prove the possession of Smt. Bhani on the suit property.
37. Faced with such a situation. Mr. Rastogi has argued that as Mamraj was, at any rate, in possession of the suit property and as the plaintiff had admitted in his statement during the course of the trial that he had been dispossessed therefrom, it was necessary for him to ask for joint possession with Mamraj. It is true that the plaintiff has admitted that he was out of possession from some time in August or Sept, 195H that is, from before the institution of the suit. He should, therefore, have prayed for joint possession alongwith his father Mamraj for this in the requirement of the proviso to these of the Specific Relief Act, because a mere declaratory decree could be of no use to him. Realising that this should have been so, the plaintiff has made an application in this Court for leave to amend the plaint by inserting a prayer for joint possession with Mamraj and it is not disputed that he has paid the requisite court fee for that relief. The question is whether the amendment should be allowed at this late stage.
38. There is no disagreement between the learned Counsel that such an amendment has been allowed even in second appeals in appropriate cases and the question is whether this a fit case for a similar order. The guiding principles for the decision of an application for such an amendment are contained in Pirgonda Mongenda Tatil v. Kalgeada Bhidgenda Patil and Ors. (17). In that case their Lordships of the Supreme Court laid down that all amendments should be allowed which satisfy two conditions(1) they do not work injustice to the other side, and (2) are necessary for the purpose of determining the real question in controversy. Further, their Lordships have observed that amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, or if the amendment would cause him an injury. As I shall presently show, no injury or injustice will because to the defendants by allowing the amendment. They themselves knew whether Mamraj was in possession of the suit property to the complete exclusion of the plaintiff, but they did not care to take the plea that he should have prayed for joint possession with Mamraj. On the other hand they took the plea that Smt. Bhani was in exclusive possession, and that plea has been found to be false. The defendants have now turned round and taken shelter under the belated argument that the plaintiff should have asked for joint possession with Mamraj. So they are largely to blame if there was no issue on the point and it was not put to trial. It is true that the plaintiff should himself have realised that he was out of possession and prayed for joint possession with Mamraj. But I am inclined to take a lenient view of this lapse because, as has been argued by Mr. Tikku the plaintiff remained under the impression that if he succeeded in securing a declaration that he was the adopted son of Mamraj, the peculiar nature of the Hindu coparcenary property would make him a joint owner with him from the date of the declaration because there is community of interest and unity of possession in the case of all the members of a joint Hindu family. This was no doubt not a sufficient reason for not asking the relief of joint possession, but it is certainly as extenuating circumstance which mitigates the mistake. To rectify it the plaintiff has now applied for an amendment in order to seek the relief of joint possession and the ; amendment cannot be said to work any injustice to the defendants because they all along knew that the question of the plaintiff's dispossession at their instance was a live point of controversy and they were vigilent enough to lead whatever evidence they could in respect of it and also took care to cross-examine the plaintiff and were able to establish from his own admission that he was out of possession from before the suit. This is not therefore, a case in which any injustice will be done to the defendants if the amendment is allowed. And it cannot be disputed that it is necessary for the purpose of rectifying a technical defect in framing the prayer in the suit so that justice may be done in the case. Besides, for reasons already stated, there is no question of reopening the case or of admitting fresh evidence whatsoever. The amendment, in the present case, relates to the rectification of the relief Clause of the plaint, and that too in respect of consequential relief. By the very nature of the amendment, it cannot be said that the other party will not be placed in the same position as if the relief had been originally correct. In all these facts and circumstances, I am inclined to allow the amendment prayed for, and I feel fortfied in this view by the decisions in Charan Das and Ors. v. Amir Khan and Ors. AIT 1921 P.C. 50, Curlingappa Bhivappa Masali and Ors. v. Sabu Kanappa Kore AIR 1931 Mad. 212, Manduri Vagenanda Lakshminarasimhachari and Ors. v. Sri Agastheswaraswamivara : 2SCR768 and A.K. Gupta and some Ltd. v. Damodar Valley Corporation : 1SCR796 .
39. Mr. Rastogi has cited Narayan v. Shankunni and Ors. ILR (1891) 16 Mad. 255, Rajnarain Das and Ors. v. Shri Ramdeo Choudhary and Ors. ILR (1899) 26 Cal. 245 and K. Kundaresa Iyer v. Sarvajana Sewkiabhi Virdhi Kidhi Ltd. Coimbators AIR 1928 Mad. 331 for a contrary submission but in all those cases the correct objection regarding the defect in the plaint was taken from the very beginning. This was, however, not so in the present case. The learned Counsel has cited Madina Sibi Sahiba v. Ismail Durga association and Anr. AIR 1940 Mad. 729 also, but that was a case in which the suit was defective because permission was not taken to file it in a representative capacity under Order 1 Rule 8 C.P.C. although the defect was pointed out by the defendant from the very beginning. In the remaining case Kanakarathanamnai v. V.S. Loganatha Mudaliar and Anr. : 6SCR1 there was a serious defect because a necessary party was not impleaded and no application was at all made, even upto the High Court, to rectify the defect. Thus all these cases are quite distinguishable and do not persuade us to take a contrary view.
40. I am, therefore, inclined to allow the amendment prayed for. What then will be the effect of the insertion of the consequential relief under the amendment which has just been allowed? Mr. Tikku has argued that in the peculiar facts and circumstances of this case, the court should grant the relief of joint possession to the plaintiff-respondent under the provisions of Order 41 Rule 33 C.P.C. even though he did not prefer an appeal. The learned Counsel has argued that as the amendment has been necessitated by a point which has been urged for the first time in this second appeal, it was not possible for the plaintiff to feel aggrieved and prefer an appeal. He has also argued that the grant of such a relief is consequential in nature and will do even handed justice and avoid future litigation. On the other hand, Mr. Rastogi has argued that no such relief should be granted and he has cited U.P. Govt. through Collector, Allahabed v. J.M. Bhatta : 6SCR1 in support of his argument.
41. Order 41 Rule 33 C.P.C. has been worded quite widely so that the appellate court has the power to pass any decree and make any order which ought to have been passed or made, and it may be exercised in favour of a respondent who may not have filed any appeal or cross-objection The object of such a provision is to enable the court to do complete justice between the parties; but the power has of course to be exercised in a judicious manner, with care and caution and is exceptional cases. Thus the court must be satisfied that there are good reasons for the exercise of such a power, and at the same time it is necessary to ensure that it does not operate harshly on the other party or place it in a position of avoidable dis-advantage. Hearing all these principles in mind I am inclined to think that in the peculiar circumstances of this case, this Court should grant the consequential relief of joint possession prayed for in the amendment. The plaintiff, as has rightly been pointed out by Mr. Tikku, had no real reason to feel aggrieved against the judgment of the lower appellate court so as to prefer an appeal or a cross-objection. He had succeeded in both the courts below and had reason to feel re-amoured in the view that the declaration of his adoption would restore him to joint possession with his adoptive father Mamraj because of the peculiar nature of the Hindu coparcenary property. At any rate he knew that Smt. Bhani had not succeeded in proving her exclusive possession, so that the defence taken in paragraph 6 of Mamraj's written statement, which gave rise to issue No. 5, had been negatived. Moreover, it has to be remembered that the question of granting the consequential relief has arisen because this Court has taken the view, on the basis of a new argument of the learned Counsel for the defendants appellants, that if not on account of the exclusive possession of Smt. Bhani, the plaintiff was required to pray for joint possession with Mamraj. This finding having been given for the first time in second appeal, I am not inclined to refuse the consequential relief to the plaintiff of his joint possession when I am satisfied that the grant of such a relief will not prejudice the other party On the other hand, it will have the effect of avoiding further litigation and do complete justice in the case. U.P. Govt. through Collector, Allahabad v. J.R. Bhatia : AIR1956All439 cited by Mr. Rastogi was quite a different case for the application for amendment was not held to be bonafide and the facts and figure contained in the relief sought to be added by the plaintiff-respondent were not there in the point and any adjudication in respect of them required further evidence. On the other hand, in the present case, the courts below would undoubtedly have allowed the relief of joint possession if only the plaintiff had included a prayer for it in the relief Clause of the plaint so that, in fact and substance, no such relief is to be granted to the plaintiff in this Court under Order 41 Rule 33 C.P.C. as will prejudice any one.
42. In the result, while the appeal fails and is dismissed with costs, the decree of the lower appellate court is modified by granting a further decree to the plaintiff for joint; possession of the suit property with defendant Mamraj. Leave to appeal is prayed for, but is refused.