SUBHASH MISIR Vs. THAGAI MISIR

JUDGEMENT

(1.) THIS appeal arises out of a suit for declaration of bhumidhari rights instituted by one Smt. Sahebzadi. The facts giving rise to the present appeal are that Smt. Sahebzadi, plaintiff, filed the suit in respect of a number or plots of village Basanipur Tappa Kataura Pargana Silhat, detailed at the foot of the plaint. Her case was that the plots in suit were previously the sir and khudkasht holding of Ram Dhani, her husband, and after his death she became the sir and khudkasht holder and subsequent to the enforcement of the U. P. Zamindari Abolition and Land Reforms Act she became the bhumidhar thereof. It was asserted that the defendant in collusion with the lekhpal fictitiously got his name entered in the revenue records although he never cultivated any of the plots which all along remained in the cultivatory possession of the plaintiff. During the pendency of this suit Smt. Sahebzadi died on 4th August 1961 and the present appellant was substituted in her place. The present appellant claimed to be the adopted son of Smt. Sahebzadi.

(2.) THE suit of Smt. Sahebzadi was contested by the defendant who alleged that Ram Dhani, the husband of Smt. Sahebzadi who was the first cousin of the defendant, lived jointly with him and after the death of Ram Dhani the defendant came in exclusive possession of the property. In the alternative, he claimed sirdari and asami rights on the basis of his continuous possession. After the substitution of the appellant the defendant filed an additional written statement wherein he challenged the adoption and further challenged the right of the appellant to sue.

(3.) IT has been argued on behalf of the appellant by his learned counsel that the lower appellate court having accepted the adoption erred in dismissing the suit. His contention is that adoption made by Smt. Sahebzadi was an adoption to her husband and the plaintiff-appellant would be deemed to be the son of Ram Dhani for the purposes of succession. Relevant provisions of the Hindu Adoptions and Maintenance Act (hereinafter referred to as the Act) were referred to by the learned counsel. The only point for determination in this appeal is as to whether the appellant who is the adopted son of Smt. Sahebzadi would succeed to the bhumidhari land left by Smt. Sahebzadi which she had inhertied from her husband before the date of vesting.