MANGILAL Vs. BHAGIRATH

JUDGEMENT

(1.) THREE out of seven defendants have filed this Second Appeal under Section 100 of the Code of Civil Procedure against the judgment and decree dated 9. 5. 80 rendered by the Additional Judge to the Court of District Judge, Shajapur in Civil Regular Appeal No. 101-A/78 thereby dislodging the judgment and decree dated 6. 4,77 passed by Civil Judge, Class II, Shajapur, Camp Sarangpur and decreeing the suit of the plaintiff i. e. Respondent No. 1.

(2.) BRIEFLY stated, the facts of the case are that Dunga was the father of Dula and Maniram. Dula had two sons Isariya and Daya. Maniram was issueless. After the death of Dunga, partition took place between Dula and Maniram. They came into a exclusive possession of their respective shares. Respondent No. 1 (plaintiff) is the son of Daya, natural son of Dula and grand-son of Dunga. He filed the suit for declaration of his share in the property of Dula. The respondents contested the suit with specific plea that Daya had gone in adoption to Maniram as his son and as such he had no right, title or interest in the property allotted to Dula on partition. It was thus, pleaded that consequently plaintiff, son of Daya has no right, title or interest to obtain declaration. Daya came in possession of the property of Maniram and after the death of Daya, Bhagirath-respondent No. 1 came in possession. The Trial Court framed material issues No. 5 (a) and (b) on the point of adoption and title and answered both the issues against respondent No. l. the Trial Court, thus, dismissed the suit. The respondent No. 1 then filed the aforesaid first appeal which was allowed with declaration that respondent No. 1 has Vi share as Bhumiswami in Survey No. 2065 area 11 Bighas and two Biswas situated in Village Lima Chokan, Tahsil Sarangpur. Aggrieved by this judgment the three defendants have filed this Second Appeal.

(3.) THIS appeal was admitted for final hearing on 19. 9. 1980 on the under noted substantial question of law :