UMRAO DEVI ALIAS AMRAO DEVI Vs. HULAS MAL

JUDGEMENT

(1.) THIS first appeal is directed against the judgment and decree dated 19.04.1982 passed by District Judge, Balotra, whereby, the suit filed by the respondents for declaration, injunction, possession and mesne profit has been partly decreed. The respondents-plaintiffs have preferred cross-objections under Order XLI, Rule 22 CPC to the extent the trial court has declined the relief to them.

(2.) AT the outset, it may be noticed that appellant No.1 has been described as Smt. Amrao Devi in the plaint; she has signed the written statement as Smt. Amrao Devi; in the statement as DW-1 she has been named as Umrao Devi but signed the same as Amrao Devi; in the title of the impugned judgment she has been described as Smt. Amrao Devi. However, the present first appeal has been filed indicating her in the title as Smt. Umrao Devi, however, the Vakalatnama has been signed as Amrao Devi, as such in the body of judgment the appellant No.1 has been indicated as Smt. Amrao Devi and in the title as Smt.

(3.) A written statement was filed by Smt. Amrao Devi; it was claimed that the suit property was defendants' personal property and the plaintiff had no right, title or interest either in the past or in the present; the claim of the property being ancestral was denied; it was objected that the plaintiff has deliberately not impleaded all the legal representatives of Multan Mal Ji, in fact defendant No.1 was daughter of Multan Mal Ji and Pepi widow of Multan Mal Ji was alive and was a necessary party; Ashu Ji had died in Samwat year 1974 (1917 AD); it was denied that Multan Mal Ji adopted plaintiff No.1 according to law on 25.10.1952; knowledge about registration of adoption deed was denied; the proceedings under Section 10 of the Guardians and Wards Act were also denied and it was stated that even if the list in the said proceedings contained the suit property, the same cannot confer title on the plaintiff; the boundaries by the neighbours were mala fidely indicated showing the property as that of the plaintiff; the validity of certificate issued by Gram Panchayat dated 19.06.1976 was denied; further the allegations regarding trespass were denied and it was claimed that the defendants were in peaceful possession for over 12 years and the plaintiffs were never in possession; the property belong to Smt. Pyari widow of Ashu Ji, who had executed her last Will dated 18.06.1964 and bequeathed the said property to Smt. Amrao Devi; Smt. Pyari died on 30.12.1965 and ever since, the defendant No.1 was in possession; it was claimed that the disputed Bada belong to Mst. Pyari, who was the sole owner; the disputed property was owned by Birdhi Chand S/o Shri Jala Ji, which was received by Ashu Ji on going on adoption to Birdhi Chand and on account of his (Ashu Ji) going in adoption his family was separate from that of Pratap Mal; the property was of the sole ownership of Birdhi Chand and his son Ashu Ji and, therefore, Multam Mal and his father Pratap Mal or Suraj Mal had no right in the said property; the said Pyari was in possession of the suit property through out her life and on coming into force of the Hindu Succession Act, 1956 ('the HS Act') she became full owner and exercising that right, she executed the Will dated 18.06.1964 and, therefore, defendant was rightly in possession of the suit property.