Relevant entries were made in the Municipal records for the assessment years 1946 51.
lived, there was a custom prevalent among Vaish companymunity to adopt son of sister.
During his lifetime he had sold his 1/4th share to Battu Mal.
Shanti Devi Chawali Devi Satya Gupta Brijesh Kumar widow daughter adopted son defendant number1 defendant number2 Dina Nath died issue less out.
Chawali Devi on part of the suit property for about last 25 years and he had companystructed one pucca room on the land under his tenancy.
It was also pleaded that Smt.
Plaintiffs never objected to it.
Surendra Kumar and his mother widow of Anand Swaroop had sold their 1/4th share to Smt.
Battu Mal was murdered.
The trial companyrt on companysideration of the evidence adduced before it and also on companysideration of legal position recorded finding that the plaintiffs have failed to establish that Jagannath had legally adopted Chandra Bhan as his son.
Likewise Battu Mal had number adopted any son, Brijesh Kumar, and defendant number2 Brijesh Kumar was number adopted son of Battu Mal.
Defendant number1 is in possession of the suit property for last about 20 years and her name is entered in the Municipal Records as owner of the disputed property.
He inducted plaintiff number2 as subtenant.
The High Court in the second appeal formulated the following questions for determination Whether the plaintiffs respondents have successfully discharged the burden of proof to establish that there existed a custom in the Vaish companymunity to which the lineal descendants of Paras Ram belonged, to adopt the son of sister?
The plaintiffs suit was accordingly decreed.
One Sri Hari Shanker Bansal father of Defendants number 3 and 4 was tenant of Smt.
Shiv Om Banshal and Mahendra Kumar Banshal Respondent Nos.
Chawali Devi became owner in possession and on Chawali Devis death, defendant numberl Smt.
Chawali Devi on part of the land of the disputed property at the rate of Rs.65/ per month as rent.
Satya Gupta and one Brijesh Kumar.
Satya Gupta succeeded to the share of Chawali Devi in the suit property.
Shanti Devi was wife of Chandra Bhan.
There was a custom in the companymunity of the companysharers to adopt sisters son and Smt.
The plaintiffs wanted to get the suit property partitioned and have their separate 1/4th share in the suit property.
Chawali Devi executed a will dated 21.6.1962 in favour of Defendant 1 in respect to her entire property.
The answering defendant sold by a registered sale deed properties to Bansals Defendants Nos.
One Surendra Kumar and Smt.
Brijesh Kumar defendant number2 is the adopted son of Battu Mal.
Jagannath died issueless.
Learned Additional District Judge, Ghaziabad reversed the judgment and decree dated 5.3.1990 by judgment and decree dated 22.2.1998.
On the pleadings of the parties, the trial companyrt framed a number of issues.
The plaint averments refer to the following facts Om Prakash and Salekh Chand filed Suit No.699 of 1984 against Smt.
Om Prakashs widow Smt.
She executed a sale deed dated 26.7.1979 of her share in the suit property.
Defendant number1 present respondent number1 and defendant number.
It is alleged that Jagannath had numberissue.
Relevant issues are issues number.1 and 2 which were as follows Whether a custom was prevalent in Vaish companymunity to validly adopt son of the sister?
Plaintiff No.1, Om Prakash was also given 7 x 7 feet land of suit property on rent by Smt.
Battu Mal had never adopted Brijesh Kumar and Brijesh Kumar is son of one Shambhu Saran who was distantly related to Battu Mal.
On the death of Chandra Bhan his widow succeeded to the suit property.
Satya Gupta being her daughter became owner in possession of the entire suit property.
3 and 4 companytested the suit by filing separate written statements.
On the above pleadings the relief claimed was that the suit property be partitioned by metes and bounds and the plaintiffs be given possession on the separate share allotted to them.
Defendants Nos.
The sale deed executed by Smt.
Hence the alleged adoption was illegal.
The family pedigree was accepted subject to the companyrection that Chandra Bhan and Shanti Devi were wrongly shown as son of Jagannath and widow of Chandra Bhan.
The plaintiffs and other defendants have numbershare in the suit property.
Ram Kumari died on 2.6.1999 and, therefore, their son Munna Lal is proforma respondent number4.
Chawali Devi, mother of defendant number1 Smt.
In the sale deed executed by Surendra Kumar and Basanti Devi in favour of defendant No.ls 1/4th share is shown to have been sold as 1/3rd share to defendant number l .
They have also failed to establish that in the Township of Hapur a custom was prevalent in Vaish companymunity, to validly adopt son of sister.
Chawli Devi on which a temporary wooden Khokha was kept by Om Prakash in which he was doing Crockery and Shamiyana business.
Thus the plaintiffs are companysharers of 1/4th share in the suit property whereas defendant number.1 and 2 are companysharers of 3/8 share each in the suit property.
It was also pleaded that since only Battu Mal lived in Ghaziabad, he got his name mutated in the Municipal Records.
He had adopted Chandra Bhan who happens to be the son of his real sister and the sisters husbands name was also Jagannath.
Jagannath died issueless about 50 years back and on his death Dina Nath, Anand Swaroop and Battu Mal alias Jagat Swaroop became owners in possession by survivorship and their names were mutated in the Municipal records on the application moved by Dina Nath and Battu Mal in the year of 1935.
3 4 in their written statements adopted the pleadings of defendant number1 and categorically, alleged that according to the Hindu custom sisters son cannot be adopted, hence alleged adoption of Chandra Bhan by Jagannath was against law.
She died on 23.5.1980 and on her death defendant number1 filed Testamentary Suit No.1/81 in the High Court on the basis of the will dated 21.6.1962 and she was granted Letters of Administration on 9.4.1984.
At the time of his death, Battu Mal was owner of the entire suit property and on his death his widow Smt.
Satya Gupta by registered sale deed.
On the death of Jagannath his son Chandra Bhan succeeded to share of Jagannath in the suit property.
Background facts in a nutshell are as follows A suit filed by the plaintiffs Om Parkash and present appellant Salakh Chand was dismissed by learned Additional Civil Judge, Ghaziabad in Suit No.699/84.
The pedigree was as follows PEDIGREE PARES RAM Jagannath Dina Nath Anand Swaroop Battu Mal died issue less Chandra Bhan Surendra Kumar adopted son son Smt.
Basanti Devi.
Both the parties adduced oral as well as documentary evidence.
She filed suit number31 of 1985 for ejectment of the plaintiffs, which was then pending.
Ceremony of adoption was performed in accordance with the customs of the companymunity prevalent among the parties in the month of Flagun Samvat 1985.
Thereafter Battu Mal has purchased the share of Dina Nath and Anand Swaroop and thus Battu Mal became sole owner of the suit property.
Defendant number2 did number file any written statement and suit against him proceeded ex parte.
But in order to avoid any dispute defendant Satya Gupta had purchased 1/2 share from Surendra Kumar and Smt.
Basanti Devi had numbershare in the suit property.
CIVIL APPEAL NO.
2 and 3 in this appeal were impleaded as defendant number.3 and The plaint allegations were that House number104 old number with its new numbers 175 and 176 described in the plaint belonged to one Pares Ram who had four sons namely, Jagannath, Dina Nath, Anand Swaroop and Battu Mal.
OF 2008 Arising out of SLP C. No.
Brijesh Kumar was sentenced to life imprisonment for companymitting the murder of Battu Mal in the year 1956 and thus Brijesh Kumar was number entitled to succeed to the property of Battu Mal.
Plaintiffs filed replication in which it was reiterated that in the Township of Hapur, where Jagannath, Anand Swaroop etc.
Defendant number1 in her written statement denied the claim of the plaintiffs and it was pleaded that plaintiff number1 Om Prakash was tenant of Smt.
No such custom was prevalent in the Vaishya companymunity of Hapur.
The legal heirs of the another plaintiff Om Prakash who died on 28.2.1998 proforma respondent No.4 have been impleaded in this appeal.
3 4 and they are necessary parties to the suit.
1380 of 2002 Dr. ARIJIT PASAYAT, J Second appeal filed by the defendants having been allowed by the learned Single Judge of the Allahabad High Court one of the plaintiffs Salekh Chand has filed this appeal.
