LAXMICHAND Vs. RAMKUMAR

JUDGEMENT

(1.) THIS is a plaintiff's appeal and is directed against the judgment and decree of the learned District Judge, Alwar, whereby he dismissed the plaintiff's suit except for a simple money decree in a sum of Rs. 320 against Fatehlal only. The action was commenced by the plaintiff-appellant Kanhaiyalal on 22-2-1945 in the court of the District Judge, Alwar and by it he sought a declaration that Fatehlal (defendant no. 2) was the adopted son of one Hiralal and he had a right to mortgage the shop in dispute with him and and he sought the consequential relief of possession of that shop from the defendants. The case with which the plaintiff-appellant came to the court was briefly this :

(2.) THE dispute relates to a shop situate in the Alwar City. It originally belonged to one Hiralal who died in the year 1920 without leaving any male issue. Hiralal was survived by his widow Smt. Dhanni. According to the plaintiff Fatehlal defendant was adopted by Smt. Dhanni sometime in the Samvat year 1982 corresponding to the year 1925. At the time of his adoption Fatehlal was said to be a minor aged about 15 years. He was the natural son of one Jugal Kishore who is said to be the real brother of Hiralal. Ramkumar defendant was another son of Jugal Kishore. The plaintiff proceeded to say that the shop was let out to him on rent by Smt. Dhanni on behalf of her adopted son Fatehlal for a period of 10 years on 29-12-1925. According to him, an indenture was executed by the plaintiff in favour of Fatehlal and he also got it executed in counter-part in his favour by Smt. Dhanni. He maintains that on the expiry of this period of 10 years he executed another rent note on 16-1-1936 in favour of Fatehlal and he continued in possession of the shop. On 4-4-1938, Fatehlal executed a mortgage deed for the shop in question in favour of the plaintiff for a consideration of Rs. 4,000 which carried an interest of 12 per cent per annum. On 27-5-1938, Smt. Dhanni filed a suit for arrears of rent and ejectment against the plaintiff saying that the plaintiff was put in possession of the shop by her and he was her tenant. Smt. Dhanni also averred in that suit that the plaintiff had executed a rent note in her favour, but she suppressed the original rent note, according to the plaintiff, in that suit. While that suit was pending, Smt. Dhanni expired and defendant Ramkumar who claimed to have been adopted by Smt. Dhanni by a registered deed came to be substituted in her place as her legal representative and the suit was continued by Ramkumar. This suit was dismissed by the trial court, but it was decreed against the plaintiff by the high Court of the ex-Alwar State on 9-12-1944. Ramkumar then transferred this decree in favour of defendant Hiralal and he also sold away the shop to him and in execution of that decree the plaintiff was evicted from the shop. The plaintiff has brought this suit for the possession of the shop on the basis of the mortgage said to have been executed by defendant Fatehlal in his favour, I ought to mention here that to start with the plaintiff sought a relief for declaration only, but as subsequent to his filing the suit new developments had taken place consequent to the transfer of the decree and the disputed property in favour of Hiralal the plaintiff sought permission to amend his plaint and eventually amended the plaint by seeking the relief for possession of the property. The plaintiff also averred that fatehlal being the validly adopted son of Hiralal the adoption having been made by his widow in the year 1925, the subsequent adoption of Ramkumar in the year 1937 was of no avail to the defendants. In the alternative the plaintiff prayed for a money decree for a sum of Rs. 9750 against Fatehlal.

(3.) THE defendants contested the suit. They denied that Fatehlal had, at any time, been adopted by Smt. Dhanni as alleged. It was asserted on their behalf that Smt. Dhanni had all along been treating all the property left by her husband as her own and had adopted Ramkumar only in the year 1937 by a registered deed. They also raised the plea of res judicata on the ground that since in the earlier suit of ejectment filed by Smt. Dhanni and thereafter continued by Ramkumar on her death, the question of mortgage by Fatehlal had been raised and decided, the plaintiff was no longer entitled to maintain another suit on the basis of the mortgage deed. Some other pleas were also raised which I need not enumerate here, for reasons that will be clear from this judgment.