HEMNATH Vs. JALAM SINGH

JUDGEMENT

(1.) THIS second appeal was filed in this Court on October 4, 1976 by Premnath and Durganath against the decree of the Additional District Judge No. 2 Jodhpur dated March 23, 1976 affirming the decree of Civil Judge Jodhpur dated March 27, 1974 whereby plaintiff's suit was dismissed.

(2.) FACTS leading to the filing of the second appeal are that on June 1, 1967 Mst. Poorannath institute Civil Suit No. 232 of 1967 in the Court of" Munsif, Jodhpur against Jalam Singh respondent for cancellation of a relinquishment deed dated March 24, 1967 which was registered on March 27, 1967. It was alleged by Mst. Poorannath that there was a plot of land measuring 2250 square yards situated outside Sojati Gate on Kachhari Road, Jodhpur which had been purchased by her father Rawatji on Miti Baisakh Badi 8 Samvat 1948 and of which Rawatji obtained a patta on Miti Kartik Badi 12 Samvat 1957. After the death of Rawatji, the plaintiff and her mother Mst. Hastu became owner of this property as Rawatji had left no son. On July 7th, 1920 Mst. Hastu widow of Rawatji executed a will of this property in favour of the plaintiff and she became its exclusive owner. On November 13, 1931 she obtained patta No. 20 in her name from the Development Department of the former Government of Jodhpur. Thereafter she sold the eastern half portion of this land to Shivram Singh and others. An area of 500 square yards of land was acquired by the government of Jodhpur and the plaintiff obtained patta No. 3 with respect to the remaining land measuring 873/91 square yards on September 24,1943. In this patta she also got inserted the names of her disciples Haraknath and Durganath, although plaintiff alone was the owner of this land.

(3.) I have heard learned counsel for the parties in this second appeal. Mr. A. L. Chopra appearing for Hemnath urged that Ex. A/1 was not a release deed but was a will and the same stood revoked when Mst. Pooran Nath challenged it in this suit. He urged that Ex. A/1 was not a release deed because the defendant Jalam Singh had no pre-existing right in the property. Mr. U. R. Tatia for Purshottamlal urged that no property was transferred by Ex. A/1 to the defendant because possession of the property was not delivered to the defendant. He also urged that it was not established that Vijay Singh had been adopted by Rawatji. Lastly, it was urged that no issue relating to the delivery of the possession and adoption was framed by the trial court and, therefore, the case should be remanded. He also argued that the courts below did not consider the other evidence adduced on behalf of the plaintiff apart from the statement of Mst. Premnath. Mr. Reva Chand did not put forward any arguments. Mr. Gopal Ram Singhvi appearing for the defendant respondent urged that document Ex. A/1 was a release deed and that there was concurrent finding of the fact of both the courts below on issue No. 1 against the plaintiff's. It was urged that both the courts below have found that Mst. Pooran Nath had executed the document Ex. A/1 out of her free will and in a healthy and sound state of mind.