MST GOVINDI Vs. CHHAGANLAL

JUDGEMENT

(1.) THIS is the plaintiff's appeal. The suit out of which it has arisen was filed by Mat. Govindi plain-tiff against the defendant Chhaganlal alias Gulabchand on the allegation that she was the owner of a certain house situated in Chaukri Topkhana Desh, Rasta Khazanewalan, in the city of Jaipur. THIS house was purchased by her husband Narhulal at an auction sale held in execution of a decree on the basis of a mortgage made in favour of Nathulal in 1914. Before his death Nathulal executed a will on Kartik Sudi 12, St. 1989, corresponding to 10th November 1932 in favour of the plaintiff bequeathing the house in dispute, among other property, to the plaintiff. After the death of Nathulal the plaintiff had allowed the defendant to occupy a certain portion of the house for residence. THIS portion was shown by cross red lines in the map attached to the plaint. It was alleged that the plaintiff asked the defendant several times to vacate the house but he had not vacated it. It was, therefore, prayed that the plaintiff be put in possession of the property after dispossession of the defendant.

(2.) THE defendant pleaded that he was the adopted son of Nathulal and as such inherited the property in suit after the death of Nathulal. It was alleged that the will set up by the plaintiff was fictitious and a forged one. THE plaintiff had no other right in the property except that of residence and maintenance. Several issues were framed by the Civil Judge who tried the case but only the following issues are necessary for the purposes of this appeal: - (1) Whether Nathulal deceased had adopted the defendant as his son and the defendant was in possession of the property in suit since then? (2) Whether Nathulal executed the will set up by the plaintiff in her favour and, if so, what was its effect?

(3.) IN the fourth case it was held that the mere fact that a Judge of the appellate court in the first instance remands a case for taking additional evidence cannot deprive him of his jurisdiction to dismiss the appeal at a later stage if it is found to be incompetent. The principle laid down in that case, therefore, does not help the respondent and is no authority for the proposition that the appellate court at the time of the final disposal of the appeal might substitute another finding in place of the finding already arrived at the time of remand.